Secretary of State for Work and Pensions CPC 2676 2014
| Jurisdiction | UK Non-devolved |
| Judge | Judge C G Ward |
| Judgment Date | 16 August 2016 |
| Neutral Citation | 2016 UKUT 394 AAC |
| Subject Matter | European Union law |
| Respondent | GS (PC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CPC 2676 2014 |
| Appellant | Secretary of State for Work and Pensions |
Attendances:
For the Appellant: Mr S Cooper, solicitor
For the Respondent Mrs B King, Islington Law Centre
Decision: The appeal by the Secretary of State is allowed. The decision of the First-tier Tribunal sitting at Fox Court on 24 July 2013 under reference SC242/13/02281 involved the making of an error of law and is set aside.
Acting under section 12(2)(b) of the Tribunals, Courts and Enforcement Act 2007 I remake the decision as follows:
The claimant’s appeal against the decision dated 20 December 2012 refusing him state pension credit on the ground that he lacked the right to reside is dismissed.
REASONS FOR DECISION
1. This decision explores issues concerning how the requirement for comprehensive sickness insurance cover (“CSIC”) may be satisfied, in order to demonstrate that a claimant is self-sufficient for the purposes of Article 7(1)(b) of Directive 2004/38/EC (“the Directive”). In particular, while Ahmad v SSHD [2014] EWCA Civ 988 provides binding authority that the ability to access NHS treatment does not of itself amount to CSIC, the present case examines whether, and if so when, it may make a difference that the person reliant on the NHS is the holder of a European Health Insurance Card (“EHIC”).
2. Article 7 provides, so far as material:
“1. All Union citizens shall have the right to residence on the territory of another Member State for a period of longer than three months if they:
(a) …; or
(b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or
(c) …; or
(d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c).”
3. By Article 2(2)(d), the expression “family member” includes “the dependent direct relatives in the ascending line”.
4. The claimant, an Italian national, was born on 16 October 1947. He had lived in the UK between 1970 and 1984, but left when he separated from his wife. At various points in his career he had also worked in Spain, Switzerland and Italy. He returned to the UK in or around January 2004 with savings of around £20,000. He had an EHIC, issued by the Italian authorities. He stayed initially with his son. He hoped to set up a coffee shop but there is no evidence going to the efforts made to do so: in any event, it did not come to fruition. In 2009 he claimed state pension credit; it appears the claim was unsuccessful and it is said that he then withdrew an appeal on advice from the DWP. Instead he claimed jobseeker’s allowance, successfully, until 16 October 2012, when he turned 65. He then claimed state pension credit. On the relevant form he indicated he planned to stay in the UK “indefinitely”.
5. In the UK the claimant has a son, who is a British/Italian dual national, and grandchildren. His ex-wife is also in the UK.
6. His claim was rejected on 20 December 2012. On 24 July 2013 the First-tier Tribunal allowed his appeal. It held that he had acquired a right or permanent residence (i.e. under Article 16 of the Directive), based on a period of 4 years 10 months from January 2004 of residing as a self-sufficient person and a further 2 months of residing as a jobseeker. As regards the requirement for CSIC, the tribunal relied on his possession of the EHIC.
7. On 28 May 2014 the Secretary of State, having been granted permission to appeal by the First-tier Tribunal, lodged notice of appeal, challenging (in particular) the reliance on the EHIC, though it is clear that he also does not accept that the tribunal was entitled to find that the claimant had sufficient resources to meet that limb of the requirements of Article 7(1)(b) either.
8. In parallel with the appeal process in the Upper Tribunal, efforts were made by both parties to establish whether the claimant had any pension rights from his former employments in Switzerland, Spain and/or Italy. He does in any event have a (partial) UK retirement pension (initially of £72.30 weekly) from his work in the UK, which has been payable to him from 16 October 2012. On 18 August 2015 the Swiss authorities awarded him a partial Swiss retirement pension (initially of SFr. 75 monthly) backdated to 1 November 2012. After a prolonged period, no replies had been received from the Italian or Spanish authorities and I indicated (without disagreement from either party) that the case was to proceed on the footing that no response of substance from those two countries would be forthcoming. Those advising the claimant have suggested that pension contributions made by him in those countries may have ended up not being credited to him.
9. I directed that the Upper Tribunal proceedings would first focus on whether the tribunal had been right to conclude that the EHIC represented CSIC. If it did not do so, then an essential requirement under Article 7(1)(b) was not met and whether or not the tribunal had been entitled to conclude that he had had sufficient resources in the period 2004-2009 would not need to be examined.
10. The case for the claimant was (in barest outline):
(a) the tribunal had correctly held that reliance on an EHIC constituted CSIC;
(b) if that was wrong, it was in any event disproportionate to enforce the requirement for CSIC against the claimant so as to deprive him of a right of permanent residence;
(c) during the 2004-09 period he had in the alternative been self-employed while trying to set up a coffee shop; and
(d) (as reformulated) during that period he was alternatively dependent on his son.
11. To that I additionally invited Mr Cooper to address whether following the decisions of the CJEU in C-333/13 Dano and C-67/14 Alimanovic and that of the Supreme Court in Mirga v SSWP [2016] UKSC 1 there remained any scope for a case by case examination of a claimant’s circumstances, as indicated in C-140/12 Brey; and if so, given that until shortly before his claim for state pension credit the claimant had had a right to reside, albeit as a jobseeker, the situation was such as to attract an obligation to carry out such an assessment.
12. I deal with these various points in turn, considering the relevant law under the section which it relates.
Could reliance on an EHIC constitute CSIC in the circumstances of this case?
13. Regulation 1408/71 and the implementing Regulation 574/72 (together “the First Regulations”) applied until 30 April 2009. Thereafter Regulation 883/2004 and its implementing Regulation 987/2009 (together the “Second Regulations”) applied. For the period January 2004- January 2009 which was relied upon it was accordingly the First Regulations which were relevant. In any event, substantially equivalent provisions can be found in the Second Regulations.
14. Article 22[1] (as amended by regulation 631/2004/EC) provided (emphasis added):
“1. An employed or self-employed person who satisfies the conditions of the legislation of the competent State for entitlement to benefits, taking account where appropriate of the provisions of Article 18, and:
(a) whose condition requires benefits in kind which become necessary on medical grounds during a stay in the territory of another Member State, taking into account the nature of the benefits and the expected length of the stay;
(b) and (c): [not material]
shall be entitled:
(i) to benefits in kind provided on behalf of the competent institution by the institution of the place of stay or residence in accordance with the provisions of the legislation which it administers, as though he were insured with it; the length of the period during which benefits are provided shall be governed, however, by the legislation of the competent State;
(ii) [not material]
…”
15. Article 1(i)[2] indicated that “stay means temporary residence”.
16. Article 36[3] dealt with reimbursement between institutions, as follows:
“1. Benefits in kind provided pursuant to this Chapter by the institution of one Member State on behalf of the institution of another Member State shall be fully refunded.
2. The refunds referred to in paragraph 1 shall be determined and made in accordance with the procedure provided for by the implementing regulation referred to in Article 98, either on production of proof of actual expenditure or on the basis of lump-sum payments.
In the latter case, the lump-sum payments shall be...
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