Secretary of State for Work and Pensions v W V (UC)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Ward |
| Neutral Citation | [2023] UKUT 112 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Published date | 02 June 2023 |
| Subject Matter | European Union law - Agreement on European Economic Area,Ward,C |
SSWP v WV (UC)
[2023] UKUT 112 (AAC)
1
IN THE UPPER TRIBUNAL Appeal No. UA-2021-001684-USTA
ADMINISTRATIVE APPEALS CHAMBER (previously known as CUC/686/2021)
On appeal from First-tier Tribunal (Social Entitlement Chamber)
Between: Secretary of State for Work and Pensions Appellant
- v –
WV Respondent
Before: Upper Tribunal Judge Ward
Hearing date: 7 November 2022 (with post-hearing submission)
Representation:
Appellant: James Cornwell, instructed by Government Legal Department
Respondent: Martin Williams, Child Poverty Action Group
DECISION
The decision of the Upper Tribunal is to allow the Secretary of State’s appeal
but to remake the decision in favour of the claimant. The decision of the First-tier
Tribunal made on 7 January 2021 under number SC200/20/00413 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 remake it as follows:
The claimant’s appeal against the decision of 13 August 2020 is allowed. He is to be
treated as being in Great Britain for the purposes of section 4(1)(c) of the Welfare
Reform Act 2012, with the consequence that universal credit is to be paid on the joint
claim by the claimant and his wife by reference to the couple rate and not the single
person rate.
SSWP v WV (UC) [2023] UKUT 112 (AAC)
Case no: UA-2021-001684-USTA
2
REASONS FOR DECISION
The issue
1. This appeal raises a previously untested point at Upper Tribunal level concerning
the ability of an EU national to assert that he has sufficient resources for the
purposes of regs 4 and 6 of the Immigration (European Economic Area) Regulations
2016 (“the 2016 Regulations”) and art.7(1)(b) of Directive 2004/38/EC (“the
Directive”). In the interests of preserving a degree of anonymity, I refer in the
remainder of this decision, without disrespect, to the claimant as “C” and his wife as
“J”. J is a UK citizen. C is a Belgian national. The issue, put at its shortest, is
whether in asserting self-sufficiency, C can rely on benefits that were in payment to J,
given that she is a UK national, and what follows if he can. The context is the
change from legacy benefits, the majority of which did not require a claimant’s
partner to have a right to reside, to universal credit, which does. The consequence of
that was that SSWP’s decision under appeal, taken on the joint claim of C and J for
universal credit, awarded it only at the single person’s rate. The detail of the phased
introduction of universal credit is not needed here, but the obligation to claim
universal credit rather than legacy benefits was triggered when C and J moved to a
new area.
2. The point is an interesting, if somewhat technical, one, which has been pursued
with vigour and clarity by both representatives, to whom I am grateful.
3. It is accepted that C meets the further requirement for asserting self-sufficiency, to
have comprehensive sickness insurance cover, in the light of the decision in C-
247/20 VI v HMRC.
Preliminary
4. SSWP’s decision under appeal was taken on 13 August 2020 and thus falls within
the “implementation period” for the UK’s withdrawal from the European Union.
Accordingly, EU law is to be applied.
5. C, who held pre-settled status at the time of SSWP’s decision, was subsequently
awarded settled status and has been entitled to universal credit since 22 May 2022.
The present appeal thus concerns a “closed” period from 28 July 2020 to 21 May
2022.
6. C’s appeal to the FtT was allowed following a telephone hearing on 7 January
2021. In barest summary, the FtT’s decision rested (a) on the Court of Appeal’s
judgment in Fratila and Tanase v SSWP [2020] EWCA Civ 1741, which was
subsequently reversed by the Supreme Court; and (b) on the view that as there was
a perceived lacuna in the legislation in its failure to make provision for some EU
citizen carers, it would be disproportionate to apply the Directive and the 2016
Regulations so as to hold that C did not have the right to reside. Mr Williams does
not invite me to uphold the FtT’s decision in his client’s favour on either of these
bases and I say no more about them.
7. Because of the subsequent course of the Fratila litigation and the close link of the
issues in Fratila with those in C-709/20 CG v Department for Communities in
Northern Ireland, the present case was at one time seen as a potential lead case to
explore the issues, then unexplored at Upper Tribunal level or above, concerning the
relevance and application of the EU Charter, as referred to at [84] to [93] of CG. The
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