MM v Secretary of State for Work and Pensions (ESA)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Ward |
| Neutral Citation | [2017] UKUT 437 (AAC),[2017] UKUT 437 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | European Union law,European Union law - free movement,Ward,C |
| Date | 10 October 2017 |
| Published date | 09 November 2017 |
MM v SSWP (ESA) [2017] UKUT 437 (AAC)
IN THE UPPER TRIBUNAL Case No CE/4503/2014
ADMINISTRATIVE APPEALS CHAMBER
Before UPPER TRIBUNAL JUDGE WARD
Decision: The appeal is dismissed. The decision of the First-tier Tribunal
sitting at Enfield on 11 February 2014 under reference SC921/12/01122 did
not involve the making of an error of law.
REASONS FOR DECISION
1. The appellant is a young woman of Swedish nationality and Somali origin,
born in May 1991. She has right-sided hemiplegia and learning disabilities
and at the time of her claim for employment and support allowance (“ESA”)
was in receipt of DLA. There is some confusion about the date of decision(s)
under appeal to the First-tier Tribunal (“FtT”) and their associated claim(s). A
claim appears to have been made on 8 May 2010 with a decision on 4
September 2010 (which may not have been notified to the appellant) and a
further claim made on 21 July 2011 leading to a decision on 19 September
2011. It appears to be common ground that the appeal is to be taken as
relating to the latter. Both had held that the appellant lacked the right to
reside under reg 70 of the Employment and Support Allowance Regulations
2008/794 and so was not entitled to ESA.
2. The overall amount of time which has passed is very considerable and is
regrettable. It is in substantial degree (though not entirely) caused by, first, a
series of necessary adjournments in the FtT to seek evidence relating to any
work record of the appellant’s father and stepfather and the benefits history of
her mother; and then a series of delays, principally during the Upper Tribunal
proceedings, while key decisions in other cases made their way through the
higher courts. To that must be added delays caused by pressure of work and
I apologise for any inconvenience caused as a result.
3. The appellant had (and still has) the advantage of legal help from solicitors
and counsel (Mr Desmond Rutledge), who had prepared written submissions
in connection with the FtT proceedings, but who would not have been in a
position under the Legal Help scheme to attend the FtT hearing and did not
do so. The submissions had evolved, responding to emerging case law. By
the time of the FtT hearing they were:
(a) the appellant had a right to reside as a child of a migrant worker in order to
access education under (then) Art 12 of Regulation 1612/68 (now Art 10 of
Regulation 492/2011);
(b) the decision of the Court of Justice of the European Union (CJEU) in C-
140/12 Brey required the FtT to carry out an overall assessment of the
specific burden which granting the benefit would place on the social
assistance system of the UK as a whole, by reference to the claimant’s
personal circumstances;
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JS v Secretary of State for Work and Pensions (IS)
...in this appeal to more recent decisions of the Upper Tribunal in JK –v- SSWP (SPC) [2017] UKUT 179 (AAC), MM -v- SSWP (ESA) [2017] UKUT 437 (AAC), and LO – v- SSWP (IS) [2017] UKUT 440 (AAC); all of which the parties’ representatives have been able to address. These decisions set out, to my......