SG CH 15 2009
| Jurisdiction | UK Non-devolved |
| Judge | Judge C G Ward |
| Judgment Date | 15 July 2010 |
| Neutral Citation | 2010 UKUT 243 AAC |
| Subject Matter | European Union law |
| Respondent | Tameside Metropolitan Borough Council |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CH 15 2009 |
| Appellant | SG |
Decision:
The appeal is allowed (although this does not help the claimant). The decision of the tribunal sitting at Stockport under reference 944/08/01569 on 17 October 2008 involved the making of an error of law and is set aside. Having made such further findings of fact as are necessary, I remake the tribunal’s decision in terms that:
The claimant’s appeal is dismissed. She is not entitled to housing benefit or council tax benefit on her claim of 28 May 2008. This is because she lacks the right to reside. Though she has comprehensive sickness insurance, at no material time has she had sufficient resources not to become a burden on the social assistance system during her period of residence in the United Kingdom (and alternatively, if it be relevant, she has become an unreasonable burden on it.)
REASONS FOR DECISION
1. This case raises two issues of wide concern to those who advise citizens of other EU Member States on benefit matters:
a. do the provisions of Regulation (EEC) No. 1408/71 applicable to the receipt by an EU citizen of National Health Service care mean that she has “comprehensive sickness insurance cover in the host member State?” and
b. when and how does the test of “sufficient resources” fall to be applied?
in each case, for the purposes of the right of residence for more than three months conferred by Article 7 of Directive 2004/38/EC.
2. The claimant is a Polish national, born in 1969. She had for many years lived in Sweden, where she had faced domestic violence from her (possibly former) husband and problems with his family. She came to the United Kingdom in August or September 2007 from Sweden, leaving her children (whose age is not stated) there. She stayed with her sister, who at that time lived in London, for 2-3 weeks. At that point, she returned to Sweden on the stated ground that her son was “abducted”. She moved into a home for single mothers in Sweden until December 2007, when she returned to the United Kingdom. From December 2007 until February 2008 she stayed with her sister. It is not possible to make further findings about that arrangement. At this point her (ex)-husband found out where she was. She said that he would have created problems. She left and moved to the Manchester area where she stayed with friends from February to May 2008. No further findings can be made about that arrangement either. They helped her find accommodation of her own, a one-bedroomed housing association flat, her tenancy commencing on 26 May 2008. (The submission on the claimant’s behalf that she had clocked up “almost nine months of self-sufficient residence” by this time is not borne out by the claimant’s own evidence to the appeal tribunal and my findings in this regard are as above.)
3. She had been since 1993 and continued to be in receipt of a monthly payment of an invalidity pension from the Försäkringskassa, the relevant body in Sweden, pursuant to a lifetime award, equating to a sum assumed for the purposes of the present appeal to be £121.68 weekly. She did not think about how she would support myself. She did not know about the cost of living in the U.K. She found that the pension was “not enough to live on”.
4. Her stated disabilities were epilepsy and depression. She did not work and was not seeking work. Her stay in the UK was envisaged to be permanent.
5. On 28 May 2008 she applied to the First Respondent local authority for housing benefit and council tax benefit and, by a decision dated 12 June 2008, was refused on the grounds, in effect, that she lacked the “right to reside”.
6. Her appeal was heard on 17 October 2008 and a decision issued three days later in the following terms:
“The Housing benefit and Council Tax benefit appeal is disallowed.
The decision of the Respondent in relation to Housing Benefit and Council Tax Benefit issued on 12/06/2008 is confirmed.
I am satisfied that Housing benefit and Council tax benefit are a form of social assistance. There is no evidence to suggest that the claimant would only need to claim either benefit for a short period. In those circumstances I consider that she would make herself an unreasonable burden on the public purse by making an indefinite claim to such benefits while remaining in the United Kingdom and being incapable of work. The claimant does not have any comprehensive sickness insurance. She may have something that equates to an E111 certificate but this is basic rather than comprehensive insurance.
For the foregoing reasons I dismiss the appeal.”
7. A statement of reasons issued on 17 November 2008 included the following passage:
“The claimant’s representative argued that the claimant should have a right to reside on the basis that she should have been treated as a self- sufficient person, having regard to the income she brought with her from Sweden. It certainly seemed to me to be the case that the Swedish pension exceeded the level below which social assistance might be granted. However, the second qualifying provision that relates to a self-sufficient person is that he or she is covered by comprehensive sickness insurance in the United Kingdom. The claimant had not taken out any form of sickness insurance.
It was argued by the claimant’s representative that the standard sickness cover in the form of an E111 should meet this proviso.
I accepted that the claimant had an income higher than state benefit level on the face of it. She did not, however, have any comprehensive sickness insurance and as a consequence did not meet the qualifying conditions for a self-sufficient person. Accordingly, I dismissed this appeal.”
9. The claimant sought permission to appeal to challenge the conclusion on the insurance issue only and the First-tier Tribunal judge who had heard the case granted it. In giving Directions, I intimated a provisional view that regardless of the outcome on the comprehensive insurance point, it appeared to be possible that the decision might fall to be affirmed on other grounds and invited submissions. I joined the Secretary of State as a party, who was prepared to concede that the claimant had sufficient health insurance. In this he was lately supported by the local authority. The reasons why this is so are set out from [20] – [28] below. However, both the Secretary of State and local authority argued that the claimant did not have the right to reside, on the grounds of a lack of self-sufficiency, and that benefit was correctly refused. For the claimant, it was argued that the claimant (as well as having the necessary health insurance, as was now conceded) had had sufficient resources and that, relying if need be on the decision in C-184/99 Grzelczyk v Centre Public d’Aide Sociale d’Ottignies-Louvain-la-Neuve [2002] 1 CMLR 19, she was entitled to the benefits claimed.
10. I held an oral hearing at the Manchester Civil Justice Centre on 8 June 2010 at which the claimant was represented by Mr K Kleinschmidt, welfare rights officer and the Secretary of State by Mr S Cooper, solicitor. I am very grateful to both for their assistance. The local authority was content to adopt the position of the Secretary of State and did not play an active part in the oral hearing.
11. The claimant did not attend the oral hearing. Mr Kleinschmidt had very properly indicated beforehand to the Upper Tribunal that:
“despite numerous attempts and discussion with staff at [the claimant’s] former housing association, I have been unable to contact [her]. To the best of my knowledge she is now likely living in Sweden.”
He felt able to proceed with the appeal to the Upper Tribunal on the basis of the claimant’s original signed authorisation to him.
12. As a preliminary point, I note that the decision refused the appeal on more than one ground (unreasonable burden by claiming social assistance and inadequate insurance), but the ground of refusal in the statement of reasons was based on inadequate insurance only. The two documents are, without explanation, mutually inconsistent in a significant respect and I regard that of itself as sufficient to cause the tribunal’s decision to be in error of law.
13. Turning to the substance, assuming she was otherwise entitled to housing benefit (as, on income grounds alone, she would have been), the claimant would not qualify if she fell foul of regulation 10 of the Housing Benefit Regulations 2006 which at the material time was in the following terms:
“(1) A person from abroad who is liable to make payments in respect of a dwelling shall be treated as if he were not so liable…
(2) In paragraph (1), “person from...
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