JK v Secretary of State for Work and Pensions (SPC)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Rowland |
| Neutral Citation | [2017] UKUT 179 (AAC),[2017] UKUT 179 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | European Union law,Residence,presence conditions,European Union law - free movement,presence conditions - right to reside,Rowland,M |
| Date | 28 April 2017 |
| Published date | 19 May 2017 |
JK v Secretary of State for Work and Pensions (SPC) [2017] UKUT 0179 (AAC)
CPC/1179/2015 1
IN THE UPPER TRIBUNAL Case No. CPC/1179/2015
ADMINISTRATIVE APPEALS CHAMBER
Before Upper Tribunal Judge Rowland
Decision: The claimant’s appeal is allowed. I set aside the decision of the First-tier
Tribunal dated 16 December 2014 and substitute a decision that the claimant had a
right of residence in the United Kingdom for the purposes of her claim to state
pension credit made on or about 16 September 2013. Other issues arising on that
claim are to be determined by the Secretary of State.
REASONS FOR DECISION
1. This is an appeal, brought by the claimant with my permission, against a
decision of the First-tier Tribunal dated 16 December 2014, whereby it dismissed the
claimant’s appeal against a decision of the Secretary of State dated 5 December
2013 to the effect that the claimant was not entitled to state pension credit on her
claim made on or about 16 September 2013 because she did not have a relevant
right of residence in the United Kingdom, the Channel Islands, the Isle of Man or the
Republic of Ireland and therefore could not be treated as habitually resident in Great
Britain.
2. The original ground of appeal to the Upper Tribunal was submitted by Ms
Charlotte Frost of the Citizens’ Advice Bureau in Swale, who represented the
claimant in the proceedings before the First-tier Tribunal by way of written
submissions but not at the hearings. She then passed the case to Mr Graham Tegg,
solicitor, of Kent Law Clinic, who submitted further grounds of appeal in response to
a direction from me and who appeared before me at the subsequent oral hearing of
the claimant’s application for permission. In a helpful written submission, Mr Michael
Page now concedes on behalf of the Secretary of State that the appeal should be
allowed.
3. The claimant is a Polish national. She has lived in the United Kingdom with
her son, who is also a Polish national, since late 2006. She was receiving disability
living allowance at the material time but has otherwise been dependent on her son
since her arrival. She attained pensionable age on 6 November 2010 but did not
complete a claim for state pension credit until 16 September 2013, as a result of
which she appears to have been treated as having claimed from 24 June 2013. She
argued that she had a right of residence under European Union law (and domestic
law giving effect to the relevant European Union law) as a dependent member of her
son’s family, but the Secretary of State and the First-tier Tribunal decided that, at the
material time, he had a right of residence only as a jobseeker and, as is common
ground, jobseekers and their dependants are excluded from entitlement to state
pension credit by virtue of the terms of regulation 2(2) and (3) of the State Pension
Credit Regulations 2002 (SI 2002/1792), as amended. The Secretary of State
argued that a formerly self-employed person does not retain that status while
involuntarily unemployed and that, because he had been self-employed immediately
before he last became unemployed, the claimant’s son had not had the status of a
worker at any time between the date of the claimant’s claim and the date of the
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3 cases
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JS v Secretary of State for Work and Pensions (IS)
...indebted in arriving at my conclusions 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 ......
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MM v Secretary of State for Work and Pensions (ESA)
...at [12] and SSWP v AC [2017] UKUT 130 (AAC) at [10]. The reason is that given by Upper Tribunal Judge Rowland in JK v SSWP (SPC) [2017] UKUT 0179 (AAC) at [21], where he also explains the link between the need for a lacuna and the conclusions reached – albeit not expressed by reference to t......
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Secretary of State for Work and Pensions v LM (ESA)
...misses meeting the conditions to qualify, as in C-413/99 Baumbast. However, in JK v Secretary of State for Work and Pensions (SPC) [2017] UKUT 0179 (AAC) the Secretary of State made, and Upper Tribunal Judge Rowland accepted, a concession that it would be disproportionate to enforce against......