Social Security Benefit in UK Law

But, without any such misconception appearing ex facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal.

Equally, the fact that the line may have been drawn imperfectly does not mean that the policy cannot be justified. Of course, there will come a point where the justification for a policy is so weak, or the line has been drawn in such an arbitrary position, that, even with the broad margin of appreciation accorded to the state, the court will conclude that the policy is unjustifiable.

I accept Mr Sales' proposition that the European cases show that, in this area, the scope of application of the Treaty, for the purposes of article 12, includes both cases where a right of residence arises directly under the Treaty and those where it arises separately under the law of the Member State. It does not extend to cases where no right of residence exists under either the Treaty or the relevant domestic law.

Similar concerns about the impact of enlargement on the benefit system led to the amendment to the social security regulations that prevents the appellant from obtaining income support.

It seems to me, then, that the law of the Convention is settled on this point as to the scope of "possessions" for the purpose of Article 1P.

That this is a legitimate reason for imposing the right of residence test finds support in Advocate General Geelhoed's opinion in Trojani v Centre Public d'Aide Sociale de Bruxelles [2004] 3 CMLR 820, para 70 that it is a basic principle of Community law that persons who depend on social assistance will be taken care of in their own Member State.

It is contained in the statutory requirement that the payment, if it is to be the subject of assessment, must arise "from" the office or employment. For my part I think that their meaning is adequately conveyed by saying that, while it is not sufficient to render a payment assessable that an employee would not have received it unless he had been an employee, it is assessable if it has been paid to him in return for acting as or being an employee.