Secretary of State for Work and Pensions v LM (ESA)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Ward |
| Neutral Citation | [2017] UKUT 485 (AAC),[2017] UKUT 485 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Contributions,credits,European Union law,Tribunal procedure,practice,credits - credits,credited earnings,European Union law - free movement,practice - evidence,Ward,C |
| Date | 12 December 2017 |
| Published date | 02 January 2018 |
SSWP v LM (ESA) [2017] UKUT 485 (AAC)
IN THE UPPER TRIBUNAL Case No CE/2386/2016
ADMINISTRATIVE APPEALS CHAMBER
Before UPPER TRIBUNAL JUDGE WARD
Interim Decision:
1. I make an order under rule 14 prohibiting the publication of any matter
likely to lead members of the public to identify the claimant in these
proceedings or her children.
2. The case is to be known as SSWP v LM (ESA) (Interim Decision). LM
are not the claimant’s true initials.
3. The appeal is allowed to the extent that I conclude that the decision of the
First-tier Tribunal sitting on 27 April 2016 under reference SC319/15/01641
involved the making of an error of law and is set aside.
4. With a view to remaking the decision under section 12(2)(b) of the
Tribunals, Courts and Enforcement Act 2007, I find as fact that :
(a) the claimant was last employed between 11 May 2011 and 16 December
2011. Her employment was in work that was genuine and effective;
(b) without a material break she then became entitled to employment and
support allowance until 15 June 2012 and then to credits for unemployment
until around 5 October 2012;
(c) during the period in (b) and notwithstanding that on 15 June 2012 she was
found not to have Limited Capability for Work for the purposes of employment
and support allowance and subsequently claimed jobseekers allowance and
received credits for unemployment she was incapable of work; during such
period such incapacity was temporary;
(d) from 5 October 2012 or thereabouts to 21 November 2013 or thereabouts
she continued to be incapable of work and such incapacity was temporary;
(e) by a date on or around 21 November 2013 her incapacity had become
permanent for the purposes of Article 17 of Directive 2004/38 and Regulations
5 and 15 of the Immigration (European Economic Area) Regulations 2006.
5. Each party must, within one month, file a submission as to how Article 17
and/or Regulations 5 and 15 should be applied in the light of the above
findings.
SSWP v LM (ESA) [2017] UKUT 485 (AAC)
REASONS FOR DECISION
1. This case, concerned as it is with a Polish national whose illness and other
circumstances are matters for considerable sadness, while an extreme case,
highlights the evidential difficulties which an EU national may face in
establishing whether or not they have a right to reside derived from EU law or
the UK implementing regulations. The case and has required considerable
investment of time and care by the Upper Tribunal in order to exercise its
inquisitorial jurisdiction.
2. One aspect of this case which I hope may assist others concerned with
establishing the work and benefits history of EU nationals in difficult or
uncertain circumstances may be found in the detailed evidence provided in
this case by the National Insurance Contributions Office (“NICO”) through the
Data Protection Unit – PAYE & Self Assessment Unit of HMRC as to how the
contributions record which not infrequently forms part of the First-tier
Tribunal’s (“FtT’s”) papers in cases of this type should be interpreted. The
contributions record was a key part of the evidence that was before the FtT in
this case and appears in redacted form as Appendix 2. It was printed on 3
September 2015 and records data up to and including the 2012/13 tax year,
but none is recorded for 2013/14 or 2014/15. I am grateful to those who have
provided full and helpful answers on behalf of NICO to a number of detailed
questions. The key findings based on that evidence are set out in Appendix 1
to this decision and are commended to those with an interest in the area,
whether or not they wish to read the decision as a whole. Whilst some of the
material in Appendix 1 may be either obvious or widely known, other parts
may not be.
3. The respondent claimant had appealed successfully to the FtT against the
DWP’s decision dated 29 June 2015 that, in effect, her claim for employment
and support allowance (“ESA”) failed because she lacked the right to reside.
4. The FtT accepted an apparent concession by the Secretary of State that
the claimant had acquired worker status during her period of employment with
I Ltd which had ended on 24 April 2009. The FtT’s key reasoning was set out
in its decision notice (which it subsequently endorsed in its statement of
reasons):
“[The claimant] has a diagnosis of schizophrenia. She has lived a
chaotic lifestyle as a result of her condition and has spent periods in
hospital. I find that when she was not claiming benefits then she was
suffering the effects of temporary illness. She is literate and skilled and
there is every reason to believe that she is able to undertake genuine
and effective work in the future when she is sufficiently recovered.
Given that a period of 5 years has elapsed during which [the claimant]
has retained worker status I find that she has a permanent right to
reside in the UK from 27 April 2015.”
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