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Summary

The claimant was able to get HB as a full-time student. He chose not to take out a student loan for fees and maintenance, based on his conscientious belief that charging and paying interest were forbidden by his religion (the claimant was a Muslim). He supplied the money himself from his savings and through part-time work. The local authority treated the claimant as having income based on the student loan he could have taken out, and as a result, his income was too high to qualify for HB. The First-tier Tribunal refused the claimant’s appeal. 

Judge Poynter allowed the claimant’s further appeal and substituted a decision that the claimant was not to be treated as possessing the student loan. The relevant rule was at regulation 64(3) of the Housing Benefit Regulations 2006, SI No.213. That requires that a student is treated as possessing a student loan in respect of an academic year where ‘he could acquire a student or a postgraduate loan in respect of that year by taking reasonable steps to do so’. On the facts of this case, it was not a reasonable step for the claimant to have taken a loan. The correct approach involved disapplying previous authority on this, that of Commissioner (as he then was) Powell in CH/4429/2006. That decision held that the word ‘reasonable’ in the rule was merely about the mechanical steps necessary to take out the loan and not matters such as the motives and religious beliefs of the claimant.

Judge Poynter declined to follow CH/4429/2006 as he considered it wrongly decided. Instead, he decided that ‘a judgment as to what is reasonable falls to be made having regard to all the personal circumstances of a claimant and, of course, all the other relevant circumstances’ (paragraph 8). In this case, although the claimant undoubtedly had the capacity to take the steps required to acquire the loan, it ‘would not have been reasonable for him to have violated his strongly held and conscientious religious beliefs by doing so’ (paragraph 9). The judge emphasised the fact-sensitive and personal nature of his judgment. It was not a decision that all Muslim students who do not take out a student loan are similarly exempt from the rule, or that students of other religions, or none, must always have the notional loan applied to them (and so Judge Poynter rejected the argument of the Secretary of State that his decision would involve a breach of the Equality Act 2010 regarding students of no religion). Contrary to CH/4492/2006, considered Judge Poynter, one of the ‘reasonable steps’ under regulation 64(3) was deciding whether to apply for a loan; it followed that the decision maker must be satisfied that it would have been a reasonable step for the claimant to have applied for a loan before he could be treated as notionally possessing one. There was nothing mechanical about the claimant’s choice there: ‘even those students whose only concerns are that they do not wish to leave university with a substantial amount of debt’, held Judge Poynter, ‘will need to undertake some moderately complex calculations’ to decide if they could manage without the loan (paragraph 95). The judge disagreed with the Secretary of State that interpreting regulation 64(3) as he had done would be administratively unworkable and invite ‘potentially opportunistic’ claims (paragraph 144). Most students simply cannot get HB anyway; and students who wish to make an ‘opportunistic’ claim would actually have to decline the student loan for which they were eligible, and somehow fund their tuition and maintenance themselves – with earnings taken into account for HB. 

‘Finally’, held the judge, ‘if the position is still insufficiently clear, then under the principles established by the House of Lords in Kerr v Department of Social Development, [2004] UKHL 23 (also reported as R 1/04 (SF)), it is for claimants to establish that their objections to taking out student loans are principled and conscientiously held and are not merely an attempt to obtain a perceived financial advantage’ (paragraph 66).

Comment from CPAG

Thanks to the claimant for sending us this decision. Both it and CH/4429/2006 are decisions of a single Judge of the Upper Tribunal/Commissioner and, in that sense, are of equal weight. However, the present decision is the most recent and has the advantage of a lengthy review of the reasoning of CH/4429/2006, so it should be preferred. It is a significant change in the approach to what the ‘reasonable steps’ are for treating a claimant as notionally entitled to a student loan. However, the judge’s caveats about the fact-sensitive nature of the judgment and the requirement for the claimant’s objection to the loan being ‘principled and conscientiously held’ are important.

Summary

The claimant was an adult British citizen who lived in South Africa from 2001 until 2021. She had planned to return to the UK in 2019 but suffered a serious brain injury in 2018 and, despite her repeated requests, the doctors treating her refused to agree to her return. Following further trauma when she was the victim of a gang rape in 2021, the doctors relented and agreed to support her return to the UK. Following her return, her claim for PIP (made just over a fortnight later) was refused on the basis that she did not meet the past presence test (PPT). The First-tier Tribunal refused her appeal on the basis that, despite the circumstances of the delay in the claimant’s coming to the UK, no legal basis for exemption from the PPT could be identified. 

Judge Wikeley refused the claimant’s further appeal, holding that the tribunal had not erred. The relevant legislation for the PPT in PIP was regulation 16 of the Personal Independence Payment Regulations 2013, SI No.377. That requires that the person has been present in Great Britain for at least 104 weeks out of the 156 weeks immediately preceding the claim. The claimant’s first argument was that she should be entitled to PIP (ie, without a PPT) as a returning British citizen. However, pointed out the judge, the nationality or citizenship of the claimant is not a relevant criterion in the PIP rules, including for the PPT. Her second argument was that her circumstances effectively prevented her from returning to the UK when she intended to in 2019. But there were only limited exceptions to the PPT in the law, and none of those assisted her. There was an exception for those who were temporarily absent from Great Britain to receive medical treatment, but that only covered medical treatment for a condition which commenced before the claimant left Great Britain, which was not the case here, and none of the other exceptions could, said Judge Wikeley, ‘even remotely’ assist the claimant (paragraph 12). 

The judge considered the claimant’s legal position not dissimilar to that of the claimant in HRA v SSWP (PIP) [2023] UKUT 109, where the claimant had been detained against his will in prison in Afghanistan for several years. Again, the claimant was unsuccessful because none of the exceptions to the PPT applied, and there was no discretionary power to add to them. Previous caselaw (FM v SSWP (DLA) [2017] UKUT 380 (AAC); [2019] AACR 9, and TS v SSWP (DLA); EK v SSWP (DLA) [2020] UKUT 284 (AAC); [2021] AACR 4) had already held that the PPT was not in itself unlawful on human rights grounds. ‘So’, said Judge Wikeley in the present case, ‘just as the absence of any broadly-worded catch-all exception’ was fatal to the claimant’s argument in that case, so too it was fatal to the arguments of the claimant in this case (paragraph 14).

Summary

The claimant became entitled to UC in September 2017. In his October and November 2017 and January and February 2018 assessment periods, he received late payments of wages from his employer, representing unpaid wages and holiday pay, and also the return of a deposit he had paid on his uniform at the start of his employment. His employer was a ‘real time information’ employer. The treatment of late paid wages and whether the return of the deposit constituted earnings were the subject of dispute at the First-tier Tribunal.

Judge Jacobs held that the original decisions of the Secretary of State, treating the late paid wages as earned income in the assessment periods in which they were received (and reported under the real time information requirements), was correct. In particular, the wages were not to be attributed to the earlier assessment period in which they were due.

The relevant regulation was regulation 61 of the Universal Credit Regulations 2013, SI No.376. The claimant’s representative argued that the default position, at regulation 61(2)(a), that employed earnings for an assessment period are based on the information reported by the employer to HM Revenue and Customs (HMRC) and passed on to the Secretary of State in that assessment period, should not apply. That was on the basis that the payments were not timely and so, as per the exception in subparagraph (3)(a), the information from the employer was ‘unlikely to be sufficiently accurate or timely’. But Judge Jacobs rejected that, holding that: ‘It is not the payment that has to be timely. It is the information from the employer that must be “unlikely to be … timely”. The information is the amount of the employed earnings for each assessment period. That does not mean that the earnings had to be earned in the period. As the claimant’s representative accepted, earnings almost always relate to past periods…The employer correctly reported the amount that was paid. The information reported to HMRC and passed to the Secretary of State was correct. This was done timeously. Regulation 61(3)(a)) does not apply’ (paragraph 13). Similarly, there was no basis for the exception in subparagraph (3)(b)(ii), which applies where the information received (ie, regarding the earnings) is ‘incorrect’. The judge held: ‘The information was correct… Again, the important word is information. The information is the amount that the claimant was paid and it was correctly reported. Matters relating to the timing of the payment, and the willingness or lack of it with which it was paid, are irrelevant to this provision’ (paragraph 14). There was no unlawful irrationality about the rules in this context: ‘The claimant received a late payment of wages in two assessment periods and had that money available to meet that need. When he received no wages, he was paid universal credit. That shows a system that is flexible in responding to changing circumstances and paying out public money when it is needed, but only then’ (paragraph 16).

The judge agreed with the concession of the Secretary of State that the First-tier Tribunal made an error of law by treating the amount of deposit as earned income. ‘As the representative succinctly submitted,’ said the judge, ‘a refund of money previously paid by an employee to their employer does not, I submit, fall within that section and is not employed earnings. I accept that’ (paragraph 9).

Comment from CPAG

Although the decision was held up to await the decision of the Court of Appeal in Secretary of State for Work and Pensions v Johnson [2020] EWCA Civ 778 (Bulletin 277, p10), the judge did not think that decision could assist the claimant. The Johnson decision concerned an irrational lack of flexibility in the context of a ‘double payment’ of monthly salary; the judge did not think that arose in the present (different) context of late paid wages where he considered the rules were appropriately flexible.

Summary

The claimant had been entitled to disability living allowance (DLA) at the highest rate for both components. On transfer to PIP, the claimant was initially awarded just the daily living component at the standard rate from 12 October 2016. The claimant applied for mandatory reconsideration and then (with the result of that being no change to the decision) appealed to the First-tier Tribunal. That appeal was rejected on 25 August 2017 (‘the 2017 tribunal’) and the claimant was refused permission to appeal further. Subsequently, on 16 January 2018, the claimant applied for a further review of his PIP (on the facts, that was in effect for a supersession for a relevant change in his circumstances). That resulted in a decision of 12 May 2018 (‘the supersession decision’) that he was still entitled only to the standard rate of the daily living component, albeit for a longer period. Following an unsuccessful mandatory reconsideration, the claimant again appealed to the First-tier Tribunal. That appeal was refused, but after a successful further appeal to the Upper Tribunal, the case was referred back to a different First-tier Tribunal. That tribunal (‘the 2021 tribunal’) allowed the appeal (ie, against the supersession decision) to award the enhanced rate of both, but did so from 26 August 2017, the day after the date of the decision of the 2017 tribunal. 

Judge Wikeley held that the 2021 tribunal had erred in law, but (contrary to the claimant’s argument that his increased entitlement should have started from his transfer to PIP in 2016) that the correct start date for the start of the claimant’s increased PIP award was 16 January 2018 – ie, the date the claimant had applied for a supersession of his then existing award. The tribunal had erred in identifying 26 August 2017 as the effective date. The tribunal also erred in having first told the claimant that the award was from 16 January 2018 as part of its orally announced decision but then changing its mind and announcing the 2017 date instead. The decision of the 2017 tribunal being unchanged had, per section 17 Social Security Act 1998, been final. Subsequently, the claimant’s request for a supersession of his then PIP award on 16 January 2018 ultimately resulted in his entitlement being changed. The effective date of change was provided for Schedule 1 to the UC (etc) Decisions and Appeals Regulations 2013, SI 2013 No.381. Applying that, the effective date for an advantageous supersession where (as here) the basis was a relevant change notified more than one month after the change was the date of change notification. The 2021 tribunal was required to apply that. So, the effective date of the claimant’s altered entitlement, following an ultimately successful challenge to the supersession decision, was the date he was taken to have notified the change of circumstances – ie, 16 January 2018. 

Judge Wikeley said: ‘The present case is yet another example of the importance of identifying the precise decision under appeal as that will then determine the potential scope of the appeal and so a claimant’s entitlement to benefit’ (paragraph 6). Also, the principle of the finality of decisions was featured in this case: by virtue of section 17 of the Social Security Act 1998, decisions were final (unless changed on revision, supersession or appeal/judicial review). The effect of that was to prevent there being two decisions about the claimant’s entitlement to the same benefit for the same period. ‘The present case’, said Judge Wikeley, ‘is an example of how the principle of finality intersects with the decision-based system of adjudication. In the Appellant’s case, this requires careful consideration of the fate of his two separate FTT appeals about his entitlement to PIP’ (paragraph 9). 

Comment from CPAG

The tribunal in this case went wrong by losing sight of the fact that ultimately it was hearing an appeal on the outcome of an application for a supersession: the tribunal was required to apply decision and appeals rules controlling the effective date of a new decision arising from that.

Summary

In 2018, the Secretary of State made a series of decisions removing the claimant’s entitlement to personal independence allowance (PIP) and before that to disability living allowance (DLA) going back to 2003, and raising recoverable overpayments amounting to nearly £100,000. On appeal, the First-tier Tribunal, at the outset, told the claimant that he could consider his entitlement even from before 2003 and (depending on the facts) potentially make an overpayment decision about that period too, and asked the claimant if he wanted to seek independent advice. After a short adjournment in which the claimant spoke to members of his family, he decided to proceed. The tribunal upheld the overpayment decisions and further held that he had been overpaid DLA since 1998.

Judge Wikeley allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred by breaching the rules of natural justice. On the facts of the case, said the judge, ‘as a matter of natural justice the tribunal, if it was contemplating that it might go back beyond 2003, should have imposed an adjournment to another day, irrespective of whether the claimant wanted “to get on with it”’ (paragraph 32). The judge emphasised that he was not deciding on whether or not there had in fact been overpayments, or whether or not they were recoverable, rather it was that the tribunal erred in not ordering an adjournment in order to give the claimant a proper opportunity to respond to the possibility of the tribunal making a significantly more adverse decision.

In so holding, the judge was influenced by a number of facts in the case. The tribunal had a ‘compelling’ set of facts and reasons for its decision, which included that the claimant had become a ‘fully self-caring’ student in 1998, regularly travelled to football matches, and been appointed to teaching positions in 2003. But it was also the case that the claimant was unrepresented, that it was ‘no trifling matter’ to extend the overpayment period back almost four years, and that the tribunal was aware that there was still the possibility of the claimant being prosecuted for fraud (paragraph 28). He agreed with the Secretary of State that the claimant had needed a proper chance to think about his own condition more than 20 years ago, and to get advice about his legal position – in particular the issue of whether his PIP award could properly be revised on the basis of misrepresentation (paragraphs 26–27, 34–37). The judge had reference to several authorities on the need for tribunals to observe natural justice and adopt a cautious approach in this context, including C15/08-09 (DLA), CDLA/884/2008 and BTC v SSWP (PIP) [2015] UKUT 155 (AAC).

Comment from CPAG

The judge was keen to set out his reasoning ‘as this type of case plainly continues to pose problems for tribunals in practice’ (paragraph 22). It is of a piece with C15/08-09 (DLA), CDLA/884/2008 and BTC v SSWP (PIP) [2015] UKUT 155 (AAC) in advocating a cautious approach to tribunals considering making a less favourable decision than the one under appeal. The finding of a need to impose an adjournment to another day is consistent with such an approach, but also stems from the particular facts of the case, including in particular an unrepresented client and a very serious extension of the overpayment period involved.

Summary

The claimant was refused personal independence payment (PIP). On appeal, some points were awarded by the tribunal, but not enough to bring about entitlement to benefit. That included the award of four points regarding the mobility component, on the basis of the tribunal’s finding that the claimant could walk for more than 50 metres but not more than 200 metres. On further appeal, the claimant argued via her representative that that was an error of law by being based on a mistake of fact. The claimant’s representative at the Upper Tribunal supplied evidence obtained via Google Maps (not submitted to the First-tier Tribunal by the claimant’s different representative there) that the tribunal had significantly mistaken the distance between the claimant’s home and the local shops and so misjudged her walking ability.

Judge Church allowed the claimant’s further appeal and remitted the case to a fresh tribunal. He accepted that the claimant’s new evidence demonstrated a material error of fact by the tribunal, which rendered its decision erroneous. The new Google Maps evidence could, in the context of the case, be admitted by the Upper Tribunal.

The judge first noted that rule 15(2)(a) of the Upper Tribunal Rules provides wide powers that the Upper Tribunal may ‘… (a) admit evidence whether or not – (i) the evidence would be admissible in a civil trial in the United Kingdom; or (ii) the evidence was available to a previous decision maker.’ Regarding the demonstration of a mistake of fact causing an error of law, he referred in particular to the decision in E and R v The Secretary of State for the Home Department [2004] QB 1044. There, Carnwath LJ had said: ‘…First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been “established”, in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal’s reasoning.’ Judge Church then noted that to show that a tribunal has made a mistake of fact, it will usually be necessary to present new evidence to the appellate authority. In Ladd v Marshall [1954] 1 WLR 1489, Denning LJ said at p1491: ‘In order to justify the reception of fresh evidence […], three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.’

Moving on to the case in hand, the judge held that, given broad discretion for the Upper Tribunal to admit evidence under rule 15 of the Upper Tribunal rules, the Ladd v Marshall principles ‘need not be applied strictly’, and the decision whether to admit the new evidence, ‘will be made on the basis of what the Upper Tribunal determines justice requires’ (paragraph 31). Although it might be argued that a ‘professional representative’ before the First-tier Tribunal could have obtained the Google Maps evidence, it should be remembered that: ‘the social security system is designed, in the words of Lady Hale in Gillies v Secretary of State for Work and Pensions [2006] UKHL 2 (reported as R(DLA) 5/06), to “ensure, so far as it can, that everyone receives what they are entitled to, neither more nor less”’ (paragraph 32). For this very reason, the Secretary of State supported the appeal, ‘having no interest in sustaining a decision on a claimant’s entitlement that was based on incomplete evidence’. The judge was therefore satisfied that, bearing all that in mind, the new evidence should be admitted, that all four tests in E and R were satisfied, that the tribunal’s factual error amounted to a material error of law (paragraphs 33–35).

Comment from CPAG

Given the wide discretion to admit new evidence in rule 15 of the Upper Tribunal rules and the focus on correct entitlement to be applied in social security appeals, the admission of new evidence to the Upper Tribunal should be possible in many cases. However, the weight and materiality of that new evidence will always be important in establishing whether there was an error of law. It would seem that a failure by a representative to supply the evidence to the First-tier Tribunal need not be fatal, but the particular facts may be significant here.

Summary

The claimant was entitled to both child tax credit (CTC) and working tax credit (WTC). She left the UK for temporary absences in Spain during 2020, including for just over 11 weeks in July, just over two weeks in September and about 13 and a half weeks in October. She had left to seek work in Spain following the cancellation of her work in the UK due to the pandemic. On each occasion, she expected to be absent just for a few weeks; but on each occasion her return to the UK was delayed by Covid-related travel problems such as cancelled flights and the need to quarantine. In February 2021, HMRC (on review) decided that she was not entitled to tax credits from the point in August 2020 when she had been absent from the UK for more than eight weeks. Following mandatory reconsideration, the claimant appealed and in August 2021 the First-tier Tribunal dismissed the appeal. 

Judge Buley KC dismissed the claimant’s further appeal regarding WTC entitlement but held that European co-ordination rules provided for a different outcome in CTC. Permission to appeal had been granted on the basis that it might be desirable for the Upper Tribunal to give guidance on cases (such as this) where, due to the pandemic, a tax credit claimant had not been able to comply with the so-called ‘eight-week rule’ (common to WTC and CTC), under which for tax credits any temporary absence should as a default not exceed eight weeks. However, the judge found that there was no exception to that rule, which was at regulation 4 of the Tax Credits (Residence) Regulations 2003, SI 2003 No.654. The judge concluded (paragraph 3) that no legislative ‘easement’ or amendment had been made during the pandemic, and that ‘the eight-week rule does not admit of any possibility of extension’. Although HMRC ‘appears to consider that it has a discretion, in exceptional cases, to waive the requirements of the eight- week rule’ (HMRC referred to ‘powers of payment and management’), the extent of that was unclear. The judge ‘strongly’ doubted that HMRC was correct to believe it had such a power (without definitively ruling on the point). In any case, such discretion was not the subject of the appeal jurisdiction, and ‘tribunals have no power or discretion to extend time by reference to extenuating reasons for the person’s absence beyond 8 weeks’.

However, the judge also noted that the eight- week rule did not apply in CTC cases where the claimant’s absence from the UK was in an EU member state. This was because of the co-ordination provisions in EU Regulation 883/2004, which applied to CTC as a ‘family benefit’ for the purposes of the regulation. HMRC conceded that in relevant cases a claimant satisfies the requirement to be present in the UK even though in an EU member state. ‘In such cases’, said the judge, ‘for so long as it continued to apply, HMRC concedes that the effect of EU Reg 883/04, “on the coordination of social security systems”, is that the 8-week rule could not apply to a person whose absence from the UK was occasioned by their presence in an EU Member State. This rule under Reg 883/04 was not in any direct way linked to the Covid-19 pandemic, and will apply regardless of the reason for absence from the UK in excess of 8 weeks, but it would continue to apply at least for much of the period of the pandemic (at least until the end of the “implementation period” of the UK’s exit from the EU, on 31 December 2020)’ (paragraph 3(ii)). Regarding the period after 31 December 2020, the judge said that given the complexities of the status of retained EU law, ‘I make no comment one way or another as to its relevance thereafter’ (paragraph 51). 

Comment from CPAG

The judge’s views on the correctness of HMRC’s views on its ability to waive the eight-week rule are clear, although not strictly binding. HMRC’s concession on the possible application of EU Regulation 833/2004 in the temporary absence context is, as the judge says, significant: ‘since it appears that it must apply to every claimant for CTC who travels to an EU member state rather than to any other country outside of the EU, with the result that, for such persons, there is no rule that limits their absence from the UK to a period of 8 weeks. That will have consequences not only for those prevented from returning to the UK by reason of Covid- related travel restrictions, but also for those who do not return for any other reason’ (paragraph 51).

Decision in brief

Effect of Remedial Order following Reilly (No.2) and TJ and others [2016] EWCA Civ 413; [2017] QB 657; [2017] AACR 14 – claimant lodged an appeal against the sanction decision before 26 March 2013 – appeal decided before coming into force of section 1A into the Jobseekers (Back to Work Schemes) Act 2013 – in such cases, section 1A requires Secretary of State to supersede a First-tier Tribunal decision upholding a sanction (so as to remove the sanction) – this applies even if the decision is under appeal to the Upper Tribunal.

Decision in brief

Section 3(4)(a) of Tax Credits Act 2002 provides that entitlement to tax credits on the basis of a joint claim ceases on death of the partner – the award does not continue until the end of the tax year – on the facts of the case, the claimant could not make a new claim for tax credits as a single person due to the introduction of universal credit (UC), and (although able to make a claim) he was not entitled to UC on the basis of his capital – no breach of human rights of claimant as a widower – for discrimination purposes, a widower is not in an analogous position to a couple with both partners alive – loss of entitlement to tax credits and the refusal of UC did not render any difference in treatment as manifestly without reasonable foundation

Summary

The claimant had three children. The first two (ie, the eldest and second eldest) were both born as a result of non-consensual conceptions. The youngest child was conceived in a stable and consensual relationship. Originally, the claimant had only two of the children (the second eldest and the youngest) living with her and got child elements for both. When the eldest child joined the household (having previously been in local authority care), the two-child limit was applied, so the child element was no longer included for the youngest child. The decision was upheld by the First-tier Tribunal. 

Judge Wikeley dismissed the claimant’s further appeal. The tribunal had not erred. 13 relevant rules (regulation 24A of the Universal Credit Regulations 2013, SI 2013 No.376) provide that exceptions from the two-child limit (including that for a child born as a result of a non-consensual conception) may apply for a ‘third and any subsequent’ child. Further (under regulation 24B), a chronological order is given to the children, taking the earliest born first. In this case, the third child was the youngest child. As that child was not born as a result of a non-consensual conception, and therefore the exception did not apply, it followed that the two-child limit applied so as to refuse a child element for that child. 

More widely, the Supreme Court had already decided, in R (SC, CB and 8 children) v Secretary of State for Work and Pensions [2021] UKSC 26, that the two-child limit was not in breach of human rights provisions. The claimant’s representative argued that the ordering in regulation 24B should be disapplied. But that could only be on the basis of a human rights challenge or judicial review. The human rights ground had been ‘comprehensively closed off’ by the Supreme Court in SC (paragraph 29). The judge then reflected: ‘A judicial review challenge, alleging irrationality in the terms of the ordering provision, might well have a more promising prospect of success’ (paragraph 30). But these were not judicial review proceedings, so (in the present decision) there was no possibility of success there either. 

Comment from CPAG

The application of the rules to the facts in this case illustrates the harshness that can result from the two-child limit, a result not objected to (albeit on different facts) by the Supreme Court in SC. Nevertheless, the judge’s comments on the potential strength of a judicial review argument for irrationality in the ordering provisions in regulation 24B, based on the facts in this case, are noteworthy.

Decision in brief

Domestic rule at regulation 10 of the Immigration (European Economic Area) Regulations 2016 does not accurately reflect European Directive 2004/38, in that it restricts potential retention of family member right to reside after a divorce to a party to the dissolved marriage – claimant in present case was the (third-country) mother-in-law of a European national seeking to retain family member right to reside after the divorce of her (third-country) son from the European national – inaccuracy in the regulation conceded by Secretary of State

Decision in brief

FE v SSWP (RP) [2019] UKUT 61 (AAC) applied and approved – exclusion of period of residence in Australia not in breach of claimant’s human rights under Article 14 read with Article 8 of the European Convention on Human Rights – calculation of the claimant’s pension a ‘purely financial consideration’ with too tenuous a link to private and family life – residence in Australia not an ‘other status’ for Article 14 (prohibition on discrimination) as although residence in New Zealand and Canada treated differently, that is because those countries have an applicable reciprocal agreement with the UK and UK government choice not to legislate in the same way regarding Australia not unlawful on grounds of being unjustified