CPAG search

Summary

The claimant was refused UC on the basis that she did not have a right to reside. The First-tier Tribunal upheld that decision. This was despite the fact that the claimant had been issued with a registration certificate and fell to be an ‘extended family member’ of her unmarried partner who was a migrant European Union (EU) worker, and had been so for a continuous period of over five years.

Judge Poole QC allowed the claimant’s further appeal, and substituted a decision that the claimant had a permanent right to reside and therefore satisfied the basic condition of being ‘in Great Britain’. This permanent right to reside had been acquired after five years as the extended family member (with a registration certificate) of her unmarried partner, a migrant EU worker. The tribunal had erred in failing to identify that (paragraph 5). The extended family member status was by virtue of regulation 7(3) of the Immigration (European Economic Area) Regulations 2006, No.1003 (the ‘right to reside regulations’, revised in 2013). The permanent right to reside after five continuous years with that status was by virtue of regulation 15(1)(a) of those regulations (paragraphs 3 and 5).

The appeal was supported by the Secretary of State. It was accepted that (as held by the First-tier Tribunal) jobseeker status could not be an effective right to reside for the claimant’s entitlement to UC, as that status was specifically excluded by regulation 9(3)(aa) of the Universal Credit Regulations 2013, No.376 (paragraph 3). The judge also agreed that the claimant did not fall to be treated as ‘in Great Britain’ by satisfying any of the categories set out in regulation 9(4) – eg, the claimant was not herself a migrant EU worker or self-employed person. But the situations in regulation 9(4) were not the only bases on which a person could be ‘in Great Britain’ (ie, have an effective right to reside for UC) (paragraph 5). On the facts, the claimant had a right to reside, namely a permanent right to reside under regulation 15(1)(a) of the right to reside regulations.

Comment from CPAG

This decision is a reminder that the specific categories mentioned in regulation 9 of the Universal Credit Regulations are not a complete statement of right to reside categories, and that the mere fact that someone is a jobseeker, although not an effective right to reside for UC in itself, does not actually bar a claimant from having some other effective right to reside.

Decision in brief

Medical report regarding industrial injuries disablement benefit assessment made after ‘case discussion’ with another person but details of that person’s identity and substance of the discussion not disclosed – tribunal erred in failing to adjourn to get that information – issue primarily one of fairness to the claimant and it is irrelevant that the tribunal considered the missing information immaterial.

Decision in brief

CA is a separate benefit from the attendance allowance paid to the disabled person and cannot be treated as part of a single benefit with it so as to allow the competent state for attendance allowance to be competent also for the CA.

Note from CPAG 

This is one of a series of five decisions made by the same judge (Judge Jacobs) involving issues relating to European Union (EU) co-ordination rules where the claimant has become habitually resident in another EU state. The individual decisions are freestanding, but the judge provides a helpful Appendix summarising the decisions in all five. See also KR v SSWP (DLA) [2019] UKUT 85 (AAC) and SSWP v TG (DLA) [2019] UKUT 86 (AAC). Two of the five decisions concerned regulation (EEC) 1408/71, which was replaced by regulation (EC) 883/04 for claims made on or after 1 May 2010. Those decisions are: JG v SSWP (CA) [2019] UKUT 83 (AAC) and SSWP v MC (DLA) [2019] UKUT 84 (AAC).

Decision in brief

Claimant entitled to contributory employment and support allowance and so ‘insured’ for purpose of old age – may still be able to export if not ‘insured’ but not explored on the facts of this case. See also the note to GK v SSWP (CA) [2019] UKUT 87 (AAC)

Decision in brief

 Competent state in these circumstances is the state where the claimant is habitually resident. See also the note to GK v SSWP (CA) [2019] UKUT 87 (AAC).

Decision in brief

Benefit entitlement on basis of exception in reg 2(1) and para 3 of the Schedule to the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000, No.636 could not apply – alternative argument of derivative right to reside under the Immigration (European Economic Area) Regulations relied on ‘Zambrano’ rights and did not afford benefit entitlement.

Decision in brief

Stated purpose was to remove duplicated documents from a large bundle, but in fact unduplicated documents were also removed – tribunal should have noticed inadequacies in registrar’s reasoning and considered the issue for itself – tribunal was not automatically required to exclude claimant’s recording and transcript of his medical examination, even if made covertly.

Decision in brief

Claimant subsequently failed to disclose increases in the pension – recovery of the overpayment was not restricted to an amount equivalent only to the annual increases, rather than the full amount of the pension – claimant had been placed under a clear and unambiguous duty to report changes in the amount of the pension – the amount recoverable is the full amount that would not have been paid but for the failure to disclose.

Decision in brief

Evidence of regular failure by Secretary of State to provide DLA evidence even when directed to do so is very concerning – compliance with directions is mandatory and failure can be referred to Upper Tribunal for consideration for fine/imprisonment.

Decision in brief

Need to consider both familiar and unfamiliar journeys – need to consider need to be accompanied (eg, parts of a journey outside the car) – need to address claimant’s argument that she could not use public transport – ability to plan and follow a journey on foot must be considered (MH v SSWP (PIP) [2016] UKUT 531 (AAC), reported as [2018] AACR 12, cited).

Decision in brief

Whether the relevant person is at school or college is a question of fact – person was full time at a Talmudical college and although no longer registered on the facts it was accepted that it was a college.

Decision in brief

No specific such right to reside in the rules – no valid analogy with decision in Saint Prix v SSWP, Case C-507/12, reported as [2014] AACR 8 – that concerned stopping work in late-stage pregnancy and it being established that that was a ‘special’ case (ie, concerning pregnant women still in the labour market) rather than creating a category of workers forced to stop work – no argument based on proportionality – that only applies to ‘lacuna-filling’ an unintended gap in the relevant European Union law ( (SPC) [2017] UKUT 179 (AAC) and LO v SSWP (IS) [2017] UKUT 440 (AAC)) – giving up work in these circumstances not an unintended gap – clear authority that a parent who has left the labour market to care for her children does not retain the status of worker (SSWP v Dias [2009] EWCA Civ 809 cited).