AMS v Secretary of State for Work and Pensions (PC): [2017] UKUT 48 (AAC) : [2018] AACR 27
Upper Tribunal Administrative Appeals Chamber decision by Judge Ward on 2 February 2017.
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Judicial Summary
Reported as [2018] AACR 27
Right to reside – whether CJEU’s decision in Brey had continued effect – need for an overall assessment of specific burden on social assistance system by reference to the claimant’s personal circumstances
The claimant was a national of the Netherlands. Her late husband had been a British national and their children were British nationals. In 2006 she came to the UK and lived on her savings and other financial help. In April 2013, her savings having been eroded, she made a claim for state pension credit (PC) which the Department for Work and Pensions (DWP) rejected on the basis that she did not have a qualifying right to reside as required under the State Pension Credit Regulations (SI 2002/1792). Under Article 7(1)(b) of Directive 2004/38 all EU citizens shall have the right of residence in another Member State for a period of longer than three months if they have sufficient resources not to become a burden on the social assistance system of the host Member State and also have comprehensive sickness insurance cover (CSIC) in the host Member State. Although the claimant was able to support herself prior to her claim she had been without CSIC until 2012, when she became entitled to a modest state retirement pension from the Netherlands. Therefore she did not have five years’ residence in the UK in accordance with Article 16 of Directive 2004/38. After the First-tier Tribunal (F-tT) rejected her appeal the claimant appealed to the Upper Tribunal (UT). In its first interim decision the UT set aside the F-tT’s decision for failing to consider the submission that it was disproportionate to enforce the requirement for CSIC for a five year period. The UT eventually held that it had not been disproportionate and invited further submissions on the relevance of the decision of the Court of Justice of the European Union in C-140/12 Pensionsversicherungsanstalt v Brey [2014] 1 WLR 1080. In a second interim decision the UT held that, as the claimant had CSIC and sufficient resources for the purposes of Article 7(1)(b) for a period prior to her claim, the need to apply Brey was triggered making it necessary to carry out an overall assessment of the specific burden which granting PC would place on the social assistance system as a whole by reference to the claimant’s personal circumstances. The UT issued Directions to enable it to make such an assessment so that it could make a final decision on the appeal.
Held, dismissing the appeal, that:
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the specific burden that granting PC to the claimant upon the UK’s social assistance system as a whole would have been some £13,200 a year for at least four years and was therefore neither a limited top-up nor a short-term expedient (paragraph 22 of the final decision);
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the evidential burden of assessing the collective impact was the responsibility of the Secretary of State for Work and Pensions: Kerr v Department for Social Development [2004] UKHL 23; [2004] 1 WLR 1372) or EU law (eg principles of effective remedial protection and effet utile) (paragraph 23 of the final decision).
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the number of new PC claims by EU nationals was sufficient to infer that the claimant’s circumstances were not unusual and would create a burden to the State of open-ended claims by people of advanced years, whose material circumstances were unlikely to change, for four-figure monthly sums. Consequently, the claimant’s claim represented an unreasonable burden on the UK’s social assistance system, with the result that, even when Brey was applied, as interpreted in the second interim decision, she lacked the right to reside and her claim accordingly failed (paragraph 25 of the final decision).
Updates to this page
Last updated 28 February 2020 + show all updates
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Decision selected for reporting as [2018] AACR 27
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First published.