Secretary of State for Work and Pensions v NZ (ESA) (Final decision)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Ward |
| Neutral Citation | [2019] UKUT 250 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | European Union law,European Union law - Agreement on European Economic Area,European Union law - free movement,Ward,C |
| Date | 13 August 2019 |
| Published date | 12 September 2019 |
SSWP v NZ (ESA) (final decision) [2019] UKUT 250 (AAC)
1
IN THE UPPER TRIBUNAL Case No: CE/98/2015
ADMINISTRATIVE APPEALS CHAMBER
Before UPPER TRIBUNAL JUDGE WARD
Decision: The decision of the First-tier Tribunal sitting at Margate on 28
August 2014 under reference SC1511/12/01269 having previously been set
aside, I remake the decision in the following terms:
The claimant’s appeal against the decision of 16 January 2012 refusing
her claim dated 29 September 2011 for employment and support
allowance on the ground that she lacked the right to reside for that
purpose is allowed. She had such a right to reside by virtue of Art.17 of
Directive 2004/38/EC (and its implementing domestic legislation).
I direct the Secretary of State to proceed to determine any remaining aspects
of the claim not previously decided upon there may be.
I further direct that sums already paid on account of employment and support
allowance in respect of the period 10 October 2011 to 3 July 2013 or part
thereof shall be offset against any entitlement the claimant may have in
respect of that period or corresponding part thereof in consequence of this
decision.
REASONS FOR DECISION
1. On 16 January 2012, the Secretary of State refused the claimant’s claim for
employment and support allowance (“ESA”) on the ground that she lacked the
right to reside for that purpose. On 28 August 2014, the First-tier Tribunal
(“FtT”) allowed the claimant’s appeal. The Secretary of State appealed
further, with permission given by a judge of the FtT.
2. A subsequent decision, dated 2 September 2014, awarded the claimant
ESA with effect from 11 April 2014. The present appeal thus concerns a
“closed” period.
3. The appeal has been the subject of three interim decisions in the Upper
Tribunal, to which reference should be made for their detail. However, in
summary:
(a) The First Interim Decision (dated 9 June 2016) set aside the
decision of the FtT for error of law and gave directions for the further
conduct of the appeal.
(b) The Second Interim Decision (dated 20 June 2017) held that from
an unknown date no earlier than 1 April 2007 and no later than 11
November 2007 the claimant had “permanent incapacity to work” for
the purposes of Article 17 of Directive 2004/38/EC (“the Directive”) and
To continue reading
Request your trial