Secretary of State for Work and Pensions v GS (PC)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Ward |
| Neutral Citation | [2016] UKUT 394 (AAC),[2016] UKUT 394 (AAC),[2017] AACR 7 |
| Subject Matter | European Union law,European Union law - Council regulations 1408/71/EEC,(EC) 883/2004,European Union law - free movement,Ward,C |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Date | 16 August 2016 |
[2017] AACR 7
(SSWP v GS)
1
[2017] AACR 7
(Secretary of State for Work and Pensions v GS (PC)
[2016] UKUT 394 (AAC))
Judge Ward CPC/2676/2014
16 August 2016
European Union law – free movement of workers – whether European Health Insurance
Card provides comprehensive sickness insurance for purposes of self-sufficiency under
Directive 2004/38/EC
In 2004 the claimant, an Italian national, returned to the UK to live, having previously worked here as well as in
Italy, Switzerland and Spain. Initially he lived off his savings and stayed with his son, who had dual British and
Italian nationality, before successfully claiming jobseeker’s allowance in 2009. In 2012 he successfully appealed
against the Secretary of State’s refusal of his claim for state pension credit, the First-tier Tribunal (F-tT) holding that
he h ad a right of permanent residence under Article 16 of Directive 2004/38/EC based upon his residence since
2004, and that he satisfied the requirement for comprehensive sickness insurance cover under Article 7 by his
possession of a European Health Insurance Card (EHIC). The Secretary of State appealed against that decision to the
Upper Tribunal and among the issues before it were whether the claimant was habitually resident in the UK (or here
only to “stay”), whether an EHIC satisfied the requirement for comprehensive sickness insurance cover, and which
Member State was the competent state.
Held, allowing the appeal, that:
1. as the claimant’s habitual centre of interests had become the UK, he h ad therefore become habitually
resident in it. It followed that the UK was not the temporary centr e of his interests, and he was not engaged in a
“stay”: I v Health Service Executive, C-255/13, EU:C:2014:1291 applied. The Italian authorities would have been
justified under Article 22 in refusing any claim for the reimbursement of his medical costs on the basis of his EHIC
(paragraphs 32 to 33);
2. at the date of hi s claim for state pension credit the claimant did not satisfy th e requirement for
comprehensive sickness insurance cover to a sufficient extent to establish a permanent right of residence un der
Article 16 of th e Directive. It did not follow that there were no cir cumstances in which an EHIC could satisfy that
requirement but the conditions governing the scope of the coverage must be considered and applied to the
circumstances of the particular case (paragraphs 38 to 40);
3. enforcement of the comprehensive sickness insurance cover requirement was not disproportionate
(paragraphs 42 to 46);
4. there was insufficient evidence of dependency by the claimant on his son for th e requisite five years and
nor was there evidence of such dependence at the date of claim for state pension credit (paragraphs 48 to 56);
5. any rights that might be conferred upon the claimant because of h is Swiss retirement pension could not
help him (paragraphs 58 to 59);
6. the claimant’s right to reside immediately before his claim for state pension credit was solely as a jobseeker
and the claimant no longer had any scope for requiring a personalised assessment of his circumstances to be carried
out: Alimanovic, C-67/14, EU:C:2015:597 (paragraph 60).
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
Mr S Cooper, solicitor, appeared for the appellant.
Mrs B King, Islington Law Centre, appeared for the respondent.
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.
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1 cases
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OB v Secretary of State for Work and Pensions (ESA)
...Kingdom is temporary and the card is issued by the holder’s home country (see Secretary of State for Work and Pensions v GS (SPC) [2016] UKUT 394 (AAC)). By 2011, the claimant in this case was not staying temporarily in the United Kingdom and it has not been suggested that she had any other......