MN v Secretary of State for Work and Pensions

This is another long-standing appeal before the Upper Tribunal concerning the law on ‘right to reside’ and how it affected the appellant’s entitlement to universal credit from 13 December 2018 and 2 August 2019.

I am satisfied on the arguments before me that the First-Tier Tribunal (“FTT”) erred in law in the two decisions to which it came on 28 March 2022 and that its decisions should be set aside as a result.

Other grounds of appeal are relied upon in this appeal in relation to whether the FTT had adequately addressed issues concerning whether the appellant ceased to retain her self-employed status. However, the appeal can resolve itself on adequacy of the FTT’s approach to determining that on all material dates the appellant did not have a right to reside in Great Britain as a self-sufficient person. As both appeals are being remitted to new FTT to be redecided afresh, it will open to the appellant to (re)argue that she had not lost her status as a self-employed person.

The material parts of the FTT’s reasons on whether the appellant was self-sufficient on either claim for universal credit read as follows.

“Facts

19.

The Appellant did not have sufficient resources not to become a burden on the social assistance system of the UK during her period of residence.

20.

In the evidence she gave to the Tribunal, the Appellant confirmed that her and her partners means were very limited.

21.

This was confirmed by the documentary evidence which reflected that her bank balance in November 2018 was £150 and in February 2019 was £4.17.

22.

Her partner….was a jobseeker at the time that the Appellant made her claims form benefit. He confirmed to the Health Visitor that he hoped to obtain work in the future. More recently, [the partner] has received Carer’s Allowance for the day to day care that he provides to his grandmother. He indicated that he did no other work.

23.

The Appellant made two claims for Universal Credit in December 2018 and August 2019. She indicated that although she wanted to find other work, she felt unable to do anything. Although she remained within the UK following the refusal of benefit to her, the Appellant does not have sufficient resources to avoid her becoming a burden on the social assistance system of the UK.

24.

The Appellant accessed NHS treatment and was not charged to do so.

Reasons

34.

The Appellant has limited means and does not have sufficient resources not to become a burden on the social assistance system of the UK during her period of residence.

35.

The Tribunal noted the decision of the Court of Justice of the European Union in VI v HMRC [C-247/20] that the treatment the Appellant had received and her affiliation to the NHS may have fulfilled the requirement for comprehensive sickness cover in this respect, but given that the Appellant did not have sufficient resources to fulfil the criteria in this respect, no right to reside could arise.”

The FTT’s earlier Decision Notice had provided some further detail on why it had found the appellant did not have a right to reside as a self-sufficient person, as follows:

“25.

In November 2018, [the appellant]’s bank balance was £150 and in February 2019, it was £7.41. She received maternity allowance in light of her class 2 contributions when self-employed in the interim period. Since then, she indicated that she has been supported by her partner and his wider family.

26.

In addition to the limited means in her bank account, [the appellant] told the Tribunal that neither she nor her partner had sufficient finances for such things as health insurance. She told the Tribunal that she was claiming universal credit as she had no other money. She indicated that her partner….had not been working but was a jobseeker at the time of her claims. For approximately the last two years, [the partner] has received carer’s allowance for the care he provides to his elderly grandmother.”

The appellant sought permission to appeal against the FTT’s decision. Her grounds for the FTT having erred in law in relation to its conclusion that the appellant was not self-sufficient were:

“…the tribunal stated that [the appellant] did not have sufficient resources not to become a burden on the UK’s social assistance system. At the date of the decision on the first claim [for universal credit] [the appellant] was being paid Maternity Allowance and her partner was entitled to Child Benefit, Carers Allowance and Universal Credit. The tribunal has not provided any reasons to determine that at the date of the decision on her first Universal Credit claim why it considered the award of Universal Credit would be a burden on the social assistance system.

At the time of the first claim [the appellant] was being supported by her partner…They lived in her partner’s parent[s’] rented home and did not have any housing costs as [the appellant] was not the tenant. The issue of considering the burden on the social assistance system was considered in [AMS v SSWP (PC) (second interim decision) [2017] UKUT 48 (AAC)] and this tribunal failed to consider any of the factors mentioned in that decision when deciding whether there would have been a burden on the social assistance system in this case. [The appellant] was not claiming for housing costs, and she would qualify for settled status by 2024. The amount of Universal Credit she would be due would be considerably less than the amount of benefit at stake in [AMS].

…..the tribunal has failed to apply the correct legal test when considering [the appellant’s] right to reside as a self-sufficient person with comprehensive sickness insurance. The tribunal specifically failed to carry out any meaningful assessment whether she would actually be a burden on the UK’s social assistance scheme.”

The FTT gave the appellant permission to appeal expressly (though the grant of permission was not limited) on the basis that:

“It is arguable that the Tribunal erred in concluding that notwithstanding that the Appellant had accessed NHS treatment and was not charged to do so and remained in the UK without the support of benefits, that she had no right to reside as a self-sufficient person.”

Regulation 9 of the Universal Credit Regulations 2013 is, insofar as is relevant, in the following terms:

“9.

—(1) For the purposes of determining whether a person meets the basic condition to be in Great Britain, …a person is to be treated as not being in Great Britain if the person is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.

(2)

A person must not be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland unless the person has a right to reside in one of those places.”

Regulation 6(1)(d) of the Immigration (European Economic Area) Regulations 2016 (the EEA Regs) provided pre-Brexit (and still provides for certain saved cases, such as this one) that ““a qualified person” means a person who is an EEA national and in the United Kingdom as a self-sufficient person”.

Regulation 4 of the EEA Regs provided, so far as is relevant on this appeal, that:

“4.

—(1) In these Regulations—

(c)“self-sufficient person” means a person who has—

(i)

sufficient resources not to become a burden on the social assistance system of the United Kingdom during the person’s period of residence..

(3)

In sub-paragraphs (1)(c)….

(a)

the requirement for the self-sufficient person….to have sufficient resources not to become a burden on the social assistance system of the United Kingdom during the intended period of residence is only satisfied if the resources available to the…..self-sufficient person and any of their relevant family members are sufficient to avoid the self-sufficient person …and all their relevant family members from becoming such a burden….

(4)

In paragraph (1)(c)…and paragraph (3), the resources of the ….self-sufficient person and, where applicable, any of their relevant family members, are to be regarded as sufficient if—

(a)

they exceed the maximum level of resources which a British citizen (including the resources of the British citizen’s family members) may possess if the British citizen is to become eligible for social assistance under the United Kingdom benefit system; or

(b)

paragraph (a) does not apply but, taking into account the personal circumstances of the person concerned and, where applicable, all their relevant family members, it appears to the decision maker that the resources of the person or persons concerned should be regarded as sufficient.”

As a matter of EU law, the equivalent provisions are found in Directive 2004/38/EC. Articles 7(1)(b) and 8(4) of that Directive provide so far is material to the issue on this appeal as follows:

“Right of residence for more than three months

7:-1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they….

(b)

have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence….

8:- 4. Member States may not lay down a fixed amount which they regard as ‘ sufficient resources ’, but they must take into account the personal situation of the person concerned. In all cases this amount shall not be higher than the threshold below which nationals of the host Member State become eligible for social assistance, or, where this criterion is not applicable, higher than the minimum social security pension paid by the host Member State.”

The Secretary of State initially did not support the appellant’s appeal in his first submissions on the appeal of 26 May 2023. That position has subsequently altered somewhat, which means I need not set out any of those earlier submissions here.

In her submissions in reply, of 21 June 2023, the appellant’s representative argued as follows (on self-sufficiency):

“13.

I would submit that the First-tier Tribunal has not provided adequate reasons for not accepting that [the appellant] was not self-sufficient at the date of her first claim as she was in receipt of Maternity Allowance up until June 2019. The tribunal has failed to give an adequate assessment regarding the amount of Universal Credit which would have been due to [the appellant] and this must be considered when making a decision on whether any award would be a substantial burden to the state. In SSWP v WV (UC) [2023] UKUT 112 (AAC) this issue has been considered by Judge Ward.

14.

Judge Ward has considered these issues (self-sufficiency/burden to the state) and as a minimum the DWP must at least carry out a meaningful assessment of the cost to the state of granting benefit. In this case there was no assessment of the amount of extra benefit which would have been paid to [the appellant] if Universal Credit was awarded. At the date of her first Universal Credit claim she was entitled to Maternity Allowance and at the date of the decision made on the first UC claim the Maternity Allowance income would have reduced the amount paid to her and her partner as Universal Credit.

15.In the tribunal decision (paragraph 24) it was simply stated it was not satisfied that at the time of the decisions that [the appellant] had sufficient resources not to become a burden on the social assistance system. I would submit that the tribunal has not carried any assessment to calculate the amount of benefit which would have been payable to [the appellant] and at what point this would be considered as a burden on the state. The tribunal stated that [the appellant] had insufficient finances for things such as health insurance (paragraph 26 of the full statement). I would submit that this amounts to an error of law as [the appellant] had no need to pay for health insurance as they were covered by the NHS. I would submit that the First-tier Tribunal appears to have given weight to the fact that [the appellant] could not pay for health insurance when they had no need to pay for something which they were already covered for. It is not clear why this factor would be relevant when considering whether an award of benefit could be considered as a burden to the state.”

This appeal was stayed by Upper Tribunal Judge Markus on 19 February 2024 pending the Secretary of State’s appeal to the Court of Appeal from SSWP v WV (UC) [2023] UKUT 112 (AAC). One issue in that appeal was whether PIP and child benefit may count towards a claimant being self-sufficient. The Secretary of State now accepts, in the light of the Court of Appeal’s decision in that appeal (SSWP v Versnick and Jarvis-Wingate [2024] EWCA Civ 1454), that PIP and child benefit may legitimately be taken into account as resources from which a claimant may be found to have been self-sufficient. I have not heard any argument on this point, but in principle I cannot see why Carer’s Allowance (as an income replacement benefit) or Maternity Allowance should not also count as such a resource (and the Secretary of State in her submissions below would seem to accept that the latter does count).

A subsequent stay was granted by Upper Tribunal Juge Church on 9 January 2025 while the Secretary of State was considering whether to seek permission from the Supreme Court to appeal to that court from the Court of Appeal’s decision in Versnick. The Secretary of State decided against that course, and the parties then filed further submissions on ‘self-sufficiency’ in the light of Versnick.

The Secretary of State filed his submissions on 10 April 2025. The material parts of those submissions (which replaced the earlier submissions) read (ignoring references):

“4.

MN is a national of Slovakia. She says that she arrived in the UK on 4 January 2018, and has been living with her partner since then. Together they have one child, born on 31 October 2018. MN was granted pre-settled status on 2 August 2019.

5.

The key facts are as follows:

a.

The FTT found that MN was a self-employed cleaner from January 2018 until 1 August 2018, earning up to £100 per week.

b.

MN’s 2017/18 tax return states that her net profits were £4500, and that the “books” for her business or accounts were made up to 15 September 2018. It is assumed that she would not have paid any income tax, but she made Class 2 national insurance contributions of £34.20 in that year.

c.

At the time that she gave up her cleaning work on 1 August 2018, MN was 23 weeks’ pregnant.

d.

MN received Maternity Allowance from 20 November 20182 to 8 July 2019, at a weekly rate of £145.18 and then £148.58 from April 2019.

e.

MN’s daughter was born on 31 October 2018.

f.

MN made claims for UC on 13 November 2018 and 2 August 2019.

g.

MN completed Habitual Residence Test interviews on 27 November 2018 and 9 August 2019. The first one recorded her as having said that she did not intend to return to work in the near future, but was currently looking for work. At the second one, she was recorded as not intending to return to work in the near future, and not looking for work.

6.

On 13 December 2018, SSWP decided that MN was not entitled to UC as her only right to reside was as a jobseeker. A mandatory reconsideration request was made on 21 June 2019 but no mandatory reconsideration decision was undertaken. A second mandatory reconsideration was requested on 1 July 2020

7.

On 14 August 2019, SSWP again decided that MN did not have a right to reside. That decision was maintained on mandatory reconsideration.

8.

As the FTT found, MN has some medical issues which appear, at least to a significant extent, to have pre-dated her pregnancy: see e.g. the medical records entries of 26 April 2018 (longstanding right hand pain) and 13 September 2018 (right knee problem since the age of 9 years).

9.

As to MN’s resources at the material times:

a.

As already set out, she worked for a brief period only and has not worked since.

b.

MN received Maternity Allowance, for a short period only, between 20 November 2018 and 8 July 2019 (but backdated to the date of the child’s birth).

c.

It is not suggested that MN (or her partner) had any savings. MN’s evidence to the FTT was that their means were very limited. Her bank account balance in November 2018 was £150, and in February 2019 it was £7.41.

d.

It appears that MN and her partner live, or at least at the material time lived, with her partner’s parents (see also entry in the medical records dated 6 October 2018).

10.

So far as MN’s partner specifically is concerned, the information available to SSWP is that:

a.

He has earned the following sums: £553.15 (27/07/18–26/09/18); £77.83 (13/09/19); £3833.40 (19/08/22–21/10/22)

b.

He acquired a permanent right of residence in October 2016 as the dependent family member of his father.

c.

He received Carer’s Allowance from 16 May 2016. He was entitled to an award of UC from 13 November 2018, but because of deductions in respect of MN’s Maternity Allowance and his Carer’s Allowance, was only paid UC for the period from 13 June 2019.

Case-law

20.

In summary, the relevant principles are as follows:

a.

The first question is whether a person meets the requirements to have a right to reside as a self-sufficient person: VP v SSWP (JSA) [2014] UKUT 32 (AAC) at [79], [106] – [107]; AMS v Secretary of State for Work and Pensions [2017] UKUT 48, [2018] AACR 27 (second interim decision) at [57]).

b.

In that respect, the claimant needs to show that they have sufficient resources for the purpose of the protection of the host state’s public finances, which includes resources to guard against being a burden. This is an important protection for the host state “against a person running short of money and needing to throw themselves on the mercy of the State [...]”: VP, [83].

c.

The requirement to have sufficient resources must be fulfilled during the period of residence. Thus, “a person wishing to assert self-sufficiency at the beginning of a five-year period (with a view to subsequent permanent residence) would have to point to “resources” to see them through five years... the question, whenever asked, remains: was the person at the beginning of year 1 – and in principle at any other times in the period – able to show sufficient resources to meet the test? … a person who could not meet the test on that basis could [not] simply lie low for five years and through a combination of luck and an unusually frugal lifestyle avoid being any kind of burden to the social assistance system and then argue that they have retrospectively shown that they had throughout had the resources to be self-sufficient. They may have been fortunate, but the risk was still there ...” VP, [84], emphasis added.

d.

The claimant must show a “degree of reliability” in the claimed resources throughout their intended period of residence (VP at [89]).

e.

Claiming benefits does not automatically disqualify a person from being self-sufficient, if they have a right to reside as a self-sufficient person. If a person has a right of residence as a self-sufficient person and then makes a claim for social assistance, then in order to decide whether or not a person will continue to enjoy a right to reside on that basis, the public authority is required to carry out an overall assessment of the specific burden which granting that benefit would place on the national social assistance system as a whole, by reference to the personal circumstances of the claimant: Pensionsversicherungsanstalt v Brey (Case C-140/12) [2014] 1 WLR 1080. Such an assessment must look at not just the effect of the individual claim on the social assistance system but the accumulation of all such individual claims (Alimanovic (C-67/14) at [62]; see also AMS 2nd Interim decision at [51]-[56]). An assessment of collective impact is necessarily somewhat rough and ready: AMS, [55]-[56].

f.

The additional factors to be taken into account on a Brey analysis include the claimant’s personal circumstances; the likely future duration of the residence; the amount and regularity of a person’s income; and whether the claim is temporary or open-ended.

g.

It will be a very unusual case where carrying out a personalised assessment leads to a conclusion in favour of the claimant: HK v SSWP (PC) [2020] UKUT 73 (AAC) at [41], referring to the Tribunal’s final decision in AMS v SSWP (PC) (final decision) [2017] UKUT 48, [2018] AACR 27. The Tribunal did reach such a decision in SSWP v VB [2024] UKUT 212 (AAC): see [60]-[98]. SSWP submits that VB turned on its own, very specific facts; in particular, the claimant in that case had substantial savings, and her partner had also been working successfully until his work was interrupted by the pandemic.

h.

The individualised assessment envisaged in Brey is not required to be carried out where the individual does not have a right of residence under Article 7(1)(b): see VP and AMS v SSWP [2017] UKUT, [2018] AACR 27 (second interim decision) at [57]-[58]; SSWP v VB [2024] UKUT 212 (AAC) at [57].

21.

In its decision in Versnick v SSWP [2024] EWCA Civ 1454, the Court of Appeal decided that when answering the question whether a claimant has sufficient resources to be considered self-sufficient, reliance on social assistance as a means of subsistence ordinarily precludes a claimant being self-sufficient. However, the position is different where an EU citizen relies on benefits paid to a spouse who is a British citizen and

there is no increase in the amount of social assistance payable to that British citizen by virtue of the EU citizen joining the British citizen’s household: [66]-[71]. The Court of Appeal acknowledged that this situation was unusual: see [71]. Fundamentally, what is needed is a causal link between the EU national’s exercise of free movement rights and the burden on the state’s social assistance system. “If part of that burden would have arisen anyway, that causal link is missing.” [83], per Singh LJ.

IV – SSWP’S SUBMISSIONS

The FTT’s decision

22.

On further reflection, SSWP considers that while the FTT’s ultimate conclusion was correct, it did not properly explain its reasoning at each stage of the analysis. For that reason alone, SSWP accepts that the FTT erred in law. However, since its ultimate conclusion was correct, its decision should either not be set aside, or alternatively the Upper Tribunal should make the same outcome decision, preserving the FTT’s findings as to MN’s resources at the material time. It is not understood that there is any controversy so far as the FTT’s findings on MN’s resources are concerned.

Issue 1 – was there a right to reside as a self-sufficient person?

23.

The first question is whether MN had a right to reside as a self-sufficient person as at the date of either of the UC decisions in her case. SSWP submits that the answer to this question, in relation to both claims, is no. For the reasons explained below, SSWP invites the Tribunal to decide this as a preliminary issue.

First claim – 13 November 2018

24.

As at the date of the claim of 13 November 2018, as a result of the combination of MN’s Maternity Allowance, and her partner’s receipt of Carer’s Allowance, the couple would not have qualified for UC, as their resources were over the relevant threshold for eligibility for UC.

25.

However, that does not mean that MN had a right to reside as a self-sufficient person as at the date of her first claim. Simple possession of resources at the relevant UC eligibility threshold on any given date does not, of itself, mean that a person holds a right to reside as a self-sufficient person, for the reasons given by Judge Ward in VP: see paras. 20 b to d above. As Judge Ward explained, a person wishing to assert self-sufficiency must point to resources to see them through the relevant period of residence.

26.

In that respect, MN came to the UK in January 2018 with no funds, appearing to fund herself initially through a short period of work. Such income as MN derived from work was short-term, fluctuating and in low-paid sectors (in that respect, see VP at [97]). MN then received Maternity Allowance, and then made a claim for UC because, as the FTT recorded her saying at para. 26 of its decision, “she had no other money.” The fact is that MN and her partner were only over the relevant UC threshold because of entitlement to Maternity Allowance (itself a sum paid by the state, even if not a social assistance benefit), and which by its nature would only be paid for a short period. More generally, MN did not have adequate resources to see her through her intended period of residence. Therefore, MN did not have a right to reside as a self-sufficient person as at the date of the November 2018 claim.

27.

But even if MN did have a right to reside as a self-sufficient person as at the date of this first claim, there would have been an entitlement of nil, so no issue arises in practice.

Second claim – 2 August 2019

28.

As at the date of the second claim, 2 August 2019, MN was no longer receiving Maternity Allowance. Moreover, at least from 13 June 2019, when MN’s partner began to receive UC, the couple was not receiving the amount stipulated in UC legislation as corresponding to their needs, and MN’s presence in the household would have increased the amount of social assistance payable. SSWP acknowledges that this, of itself, does not mean that MN was not self-sufficient, but taking the factors in para. 26 into account, it is clear that she was not.

29.

To be clear, if, contrary to SSWP’s primary position, there had been previous self-sufficiency (i.e. at the date of the first claim), then there was still no right to reside as at the date of the second claim for the reasons set out in para. 26 above, and so the claim for UC fell to be rejected accordingly.

Issue 2: Brey analysis

30.

If, contrary to the submissions above, MN had a right to reside as a self-sufficient person as at the date of the second claim, then it would be necessary to conduct a Brey assessment.

31.

In that case, SSWP would invite the Tribunal to permit both parties to file further evidence, thus providing MN (in the interests of fairness, since the matter was not explored by the FTT) with an opportunity to file any further evidence relevant to the Brey assessment, and enabling SSWP to consider the Brey assessment in the light of that evidence, and file evidence in response if needed.”

The appellant made her further submissions in reply on 2 July 2025. These raised, inter alia, an argument for which she had never previously sought permission to appeal or amend her grounds of appeal, and was well out of time for doing either: see paragraphs [21]-[26] of KS v Disclosure and Barring Service [2025] UKUT 45 (AAC). The new argument is that the FTT erred in law by not having a registered medical practitioner (“RMP”) sitting on it. Even had that ground been raised in time, I would have refused permission for it to be argued as nothing in the relevant Practice Direction enabled the FTT in this case to have an RMP siting on it.

As for “self-sufficiency”, the appellant argued in reply:

“Self-sufficiency

16.

The tribunal accepted that my client was in genuine and effective work. By 19/09/2018 the medical records indicate that my client and her partner had moved to live with her partners Parents…... They were provided with food, heating, water, housing and internet on an indefinite basis. Her partner’s father had a permanent right to reside in the UK and he was entitled to social assistance and other benefits including Personal Independence Payment. The Secretary of State has confirmed that caselaw has made it clear that the source of support is immaterial and it can come from a variety of different sources.

17.The Secretary of State has stated in paragraph 20 that there are a number of issues which need to be considered before a person can be said to be self-sufficient. The first-tier tribunal did not do this in any meaningful way. Paragraphs 25-26 of the First-tier Tribunal decision considered this issue. In paragraph 26 the tribunal stated that my client and her partner did not have sufficient finances for things such as health insurance. It is not clear what the relevance of this fact would be as my they were both entitled to NHS health care on the basis that they were ordinarily resident in the UK. Although the tribunal stated that my client was support by her partner’s family the judge did not state what this support amounted to materially and how long my client was able to rely on this support. In paragraph 26 the judge appears to have made a factual error as they stated my client’s partner had only been in receipt of Carers Allowance for a period of around two years at the date of the hearing and he was a jobseeker at the time of the UC claims (i.e not a carer). It would appear that my client’s Carers Allowance was awarded from 16/05/16 (see paragraph 10(c) page 107).

18.

At the time of the first claim my client and his partner survived on Carers Allowance and Maternity Allowance and this more than their Universal Credit applicable amount. Prior to Maternity Allowance ending they were entitled to Child Benefit. In addition to this they continued to be housed and provided with heating, water, food and internet by family members on an indefinite basis. They continue to live with the same family at the same address.

19.

Although the First-tier Tribunal considered that awarding Universal Credit to my client would place an unreasonable burden on the UK Social Assistance scheme they have not considered the amount in issue in this case. I am grateful to the Secretary of State for providing this calculation and I accept the figure they have calculated i.e. approximately £5500.

20.The factual issues set out in the Secretary of States submission, dated 22/04/2025, need to be established by a new First-tier Tribunal and I would submit that this case should be remitted to a new First-tier Tribunal so these issues can be fully considered.

21.In paragraph 20(a) (page 109) the Secretary of State has referred to two cases which were both decided prior to Brexit and prior to Case C‑247/20 which confirmed that NHS coverage is Comprehensive Sickness Insurance. The AMS case involved a pensioner coming to the UK and her claim for Pension Credit was calculated at costing £13,200 for a four year period and there was some concern that if the appeal was allowed then this would place an unreasonable burden on the Social Assistance system. This case was decided prior to Brexit and the risk of an open-ended number of pensioners coming to the UK was a relevant consideration at time. This appeal involves a much shorter period and the risk of an open-ended number of claimants coming to the UK from Europe is no longer a real possibility.

22.

VP v SSWP (JSA) can be distinguished from my client’s circumstances as VP had no other support i.e. from family and a partner.

23.The degree of reliability mentioned in the Secretary of States submission, paragraph 20(d) has been borne out over time but it was never considered by the tribunal. In paragraph 26 the Secretary of State states that the Maternity Allowance was only short term but the support from the wider family continued from September 2018 to date. This includes housing, food, water, gas, electricity and internet. In this paragraph the Secretary of State has stated that my client did not have resources to see her through her period of residence but this fails to take account of the stable support provided by her partner and in-laws. ”

I consider the Secretary of State’s concession as to the adequacy of the FTT’s analysis and reasoning is well made and is correct.

In my judgement, the FTT did not sufficiently work out in its fact-finding and reasoning all matters relevant to whether (or not) the appellant was self-sufficient throughout the periods of her residence relevant to each of her claims for Universal Credit. For example, as the appellant (rightly) points out, the FTT gave no consideration to the support the appellant received from her partner’s parents. Nor did the FTT have any evident or sufficient regard to the appellant’s and her partner’s sources of income and the amount of that income.

The effect of the Secretary of State’s submission is, however, that although the FTT erred in law (for want of adequate reasoning), that error of law was not material to the FTT’s decisions because those decisions were correct on the evidence. Although I can see the force of at least some of the Secretary of State’s arguments on this point, it seems to me that the answer may not be as clear cut as the Secretary of State contends.

For example, I note in this regard what the Secretary of State says about the appellant not qualifying for Universal Credit on her first claim because of her income of Maternity Allowance and her partner’s of Carer’s Allowance. However, whether the appellant was not entitled Universal Credit on the first claim because of her (and her partner’s) income being too high was not the basis of the Secretary of State’s decision. The decision made on that first claim was that the appellant was not entitled to Universal Credit solely because she did not have a right to rise in Great Britian. No alternative case was advanced for non-entitlement by the Secretary of State (see R(IS 2/08), and so this ‘income issue’ has never been argued or tested. It would be unfair to therefore decide the appeal against the appellant on this ‘income’ basis.

It is seemingly inherent in the Secretary of State’s argument on this income point, however, that the appellant was self-sufficient at the time of her first claim for Universal Credit. But the Secretary of State correctly argues that this alone is not enough as the appellant had to show she was self-sufficient throughout the relevant periods of residence; or at least after her first three months of residence and any other qualifying periods of residence she may have had as a worker when she was self-employed and in genuine and effective work. That the FTT had to do this is implicit in VP v SSWP (JSA) [2014] UKUT 32 (AAC); [2014] AACR 25 at paragraphs [83]-[84] in particular. But it is also the case because of the terms of regulation 4(1)(c)(i) of the EEA Regs and Article 7(1)(b) of Directive 2004/38/EC, both of which make clear that the right to reside as a self-sufficient person is conferred only for the periods of the person’s residence during which they have sufficient resources not to become an unreasonable burden on the host State.

The Secretary of State goes on to argue and assert that the appellant cannot show that she was self-sufficient at all relevant periods before the first claim for Universal Credit. However, this issue was not properly analysed by the FTT. Nor is it obvious to me that the appellant cannot establish self-sufficiency given she established an entitlement to the Maternity Allowance because of her prior self-employed work. It may be an uphill task the appellant faces, but justice dictates that she be given a proper opportunity to do so, and that is better done before a new (and local) First-tier Tribunal. There is no merit, and it would probably take longer, for the Upper Tribunal to decide this as a preliminary issue. Remitting the factual issue to the FTT also preserves the parties’ rights to challenge any fresh decision of the FTT before the Upper Tribunal for error of law, rather than trying to surmount the second appeal test in the Court of Appeal.

Different factual consideration may apply to the second claim for Universal Credit on 2 August 2019, and the appellant’s likelihood of success on the evidence may be smaller here. However (and again) all relevant issues have not been properly explored and the answer to whether the appellant might have been an unreasonable burden on the UK as at the date of the second claim might be affected by the answer to whether she was self-sufficient for the relevant periods up to the first claim.

For the reasons set out above, the appeals succeed. The Upper Tribunal is not able to re-decide the first instance appeals. Those appeals will therefore have to be re-decided afresh by a completely differently constituted FTT, after an oral hearing.

The appellant success on these two appeals to the Upper Tribunal on error of law grounds says nothing one way or the other about whether her appeals will succeed on the facts before the new FTT, as that will be for that tribunal to assess in accordance with the law and once it has properly considered all the relevant evidence.