MM and SI CDLA 528 2015

[2016] AACR 38

(MM & SI v Secretary of State for Work and Pensions (DLA)
[2016] UKUT 149 (AAC))

Judge Markus QCCDLA/527/2015

17 March 2016CDLA/528/2015

European Union law – application of Article 28 of the Qualification Directive to past presence test for disability living allowance for refugees

Human rights – Article 14 – whether 104-week rule for past presence in Great Britain discriminatory

The appellants were both children of refuges and had substantial disabilities. They each claimed disability living allowance (DLA) but the Secretary of State refused both claims because neither child had been present in Great Britain for 104 weeks and so failed to satisfy the past presence test (PPT) in regulation 2(1)(a)(iii) of the Social Security (Disability Living Allowance) Regulations 1991. They appealed through their mothers to the First-tier Tribunal (F-tT) arguing that the PPT unlawfully discriminated against them, contrary to Article 28 of EU Directive 2004/83/EC (the Qualification Directive) and Article 14 of the European Convention on Human Rights (ECHR). The F-tT dismissed their appeals, finding that, although the PPT discriminated against refugees and their family members as compared to other UK nationals, such discrimination was justified. They appealed to the Upper Tribunal.

Held, allowing the appeal, that:

1. Article 28 of the Qualification Directive has direct effect in its application to refugees and their family members and it is the responsibility of the national courts and tribunals to protect the rights conferred by it (paragraphs 23 to 26)
2. DLA is “social assistance” within Article 28 as the term is intended to embrace a wide range of welfare benefits so as to ensure that refugees and their families are treated equally within the benefits systems of Member States. But even if it is directed to a narrower group of subsistence benefits, DLA for these purposes is included (paragraphs 40 to 55)
3. the correct comparator with refugees for these purposes is UK nationals as a whole. There is no doubt that the PPT places refugees and their families at a particular disadvantage compared to UK nationals. Refugees and their families are intrinsically less likely to satisfy the test than UK nationals (paragraphs 59 to 67);
4. the proportionality of the PPT in its application to refugees attracts close scrutiny rather than the test of whether it is “manifestly disproportionate” (paragraphs 79 to 89).
5. although the aim of establishing a sufficiently close link with the UK is a legitimate one, the Government has not established that the application of the PPT to refugees is a proportionate means of achieving that aim. The rationale for the PPT does not apply to refugees in the way that it does to other migrants. Most refugees will have firmly established their genuine link with the UK by applying for and obtaining refugee status and severing their links with their home countries, and refugees are particularly vulnerable as a class. The respondent has not shown that it had considered the position of refugees in the context of the PPT, nor why refugees could not be exempt from the test or why other conditions could not have been formulated to provide an opportunity for refugees to satisfy the aim by other means, nor that making different provision for refugees would adversely affect the integrity of the benefits system (paragraphs 91 to 103);
6. the application of the PPT to refugees is not justified in the context of Article 14. The PPT discriminates against refugees and their family members because they are disadvantaged by the application of apparently neutral criteria and because the test failed to recognise that refugees are in a materially different situation from others to whom it applies, and the discrimination is not justified (paragraphs 104 to 110);
7. the F-tT’s decision is set aside and the decision re-made; in doing so, the offending provision in the regulations is disapplied with the consequence that at the relevant time the appellants satisfied the statutory residence and presence conditions for DLA; the Secretary of State must determine their claims accordingly.

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

Mr Michael Spencer, Legal Officer, Child Poverty Action Group, appeared for the appellants.

Mr Alasdair Henderson of counsel appeared for the respondents.

DECISION

The decision of the Upper Tribunal is to allow the appeals.

The decision of the First-tier Tribunal made on 31 October 2014 under number SC154/14/00966 was made in error of law. Under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007 I set that decision aside and re-make the decision in the following terms:

At the time of the respondent’s decisions (24 September 2013 and 19 September 2013) the appellants satisfied the conditions as to residence and presence in Great Britain in accordance with section 71(6) Social Security Contributions and Benefits Act 1992.

REASONS

Introduction

1. These appeals raise the important question whether the application to refugees and their family members of the past presence test (PPT) in regulation 2(1)(iii) of the Social Security (Disability Living Allowance) Regulations 1991 (SI 1991/2890) amounts to unlawful indirect discrimination contrary to the provisions of Article 28 of EU Directive 2004/83/EC (the Qualification Directive), or Article 14 of the European Convention on Human Rights (ECHR).
2. I have decided that the PPT is unlawfully discriminatory on both bases and should be disapplied. This means that, if they meet the substantive conditions of entitlement to DLA, the appellants should at the time of the decisions have been awarded DLA.

Factual background

3. For present purposes, the relevant facts can be stated very briefly.
4. Both appellants were children at the time of the decisions which are the subject of these appeals. They both have substantial disabilities. MM is a Ugandan national. His mother was granted refugee status in the UK in March 2012. MM joined his mother in April 2013 with entry clearance on the basis of family re-union. A claim was made on his behalf for DLA in August 2013. SI is a Somali national. She arrived in the UK with her mother and sister in August 2013 and they were given indefinite leave to remain on arrival. A claim was made on her behalf for DLA in August 2013. The Secretary of State refused both appeals because neither appellant had been present in the UK for 104 weeks.
5. They appealed, through their mothers who are their appointees, to the First-tier Tribunal on the ground that the PPT discriminated against them contrary to Article 28 of the Qualification Directive.

The First-tier Tribunal’s decision

6. On 31 October 2014 the First-tier Tribunal doubted that Article 28 of the Qualification Directive was directly effective but it did not need to determine that point because it dismissed the appeals for other reasons. It decided that DLA was social assistance for the purpose of the Qualification Directive and that the PPT discriminated against refugees and those whose status is dependent on their family relationship to refugees, as compared with UK nationals. The measure was indirectly discriminatory but the tribunal found that the discrimination was justified. It decided that the aim of the PPT was to direct benefits to those who are permanent long-term residents of the UK, that the imposition of a requirement for a period of residence was a rational means of achieving that aim and that the objective and the PPT were sufficiently connected for it not to be considered manifestly without reasonable foundation as a means of achieving that aim. The tribunal distinguished the case of LucyStewart v Secretary of State for Work and Pensions, C-503/09, EU:C:2011:500, [2012] PTSR 1, [2012] AACR 8 on the ground that, here, the legitimate aim was not to establish a genuine link with the UK (as in Stewart) but was to direct benefits to permanent long-term residents of the UK.

The issues in the appeal to the Upper Tribunal

7. On the basis of permission given by the First-tier Tribunal and supplemented by the Upper Tribunal, the issues in this appeal were identified as follows:

Discrimination contrary to the Qualification Directive

a)Whether Article 28 of the Qualification Directive has...