Secretary of State for Work and Pensions v W V (UC): [2023] UKUT 112 (AAC)
Upper Tribunal Administrative Appeals Chamber decision by Judge Ward on 15 May 2023.
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Judicial Summary
“C”, a Belgian national, and “J”, a UK national, a couple, were only paid at the single person rate on their Universal Credit claim, because C failed the right to reside test. The circumstances were unusual, in that J, a person with disabilities, had before their marriage been in receipt of a range of benefits, including means-tested “legacy benefits”. After their marriage, they lived on J’s benefits, plus carer’s allowance paid to C. Because of the effects on the various premiums, the amount of social assistance paid to J decreased when C joined her. It was conceded that carer’s allowance is not “social assistance”. Upon moving home, they were required to claim Universal Credit instead. Held: applying the line of cases from C-200/02 Zhu and Chen to C-93/18 Bajratari, which precludes the imposition of conditions as to the origin of resources, C had “had” the resources made available to him by J out of her benefits (plus his own carer’s allowance); these had amounted to what the State considered necessary for a couple in their position, so the amount of resources had been sufficient to meet art.8(4) of Directive 2004/38. As it was accepted following C-247/20 VI v HMRC that H had had comprehensive sickness insurance cover, he therefore, prior to the enforced claim for Universal Credit , had been self-sufficient for the purposes of art.7 of the Directive. That was sufficient to bring the case within the scope of C-140/12 Brey, so that an individualised assessment was required of C’s position. Having considered both the individual circumstances and, so far as it could be discerned, the likely collective impact, the Upper Tribunal concluded that the burden on the UK’s social assistance system which would arise by paying Universal Credit as if C fulfilled the Right To Reside requirement imposed following the joint claim for Universal Credit would not be an unreasonable one.