Secretary of State for Work and Pensions v MR

This is a long-standing appeal before the Upper Tribunal, brought by the Secretary of State, concerning the law on ‘right to reside’ and how it affected the respondent claimant’s entitlement to universal credit from 5 June 2021.

My decision in summary is that I am satisfied on the arguments before me that the First-Tier Tribunal (“FTT”) erred in law in the decision to which it came on 20 June 2022 and that its decision should be set aside as a result. The FTT failed to provide an adequate explanation, in its fact-finding and reasoning, for why the claimant had a right to reside in Great Britain on the basis of his being a self-sufficient person. That issue will now need to be considered afresh by a newly constituted FTT, along with any other relevant arguments the claimant wishes to pursue.

I need only sketch in sufficient of the relevant background to make sense of the legal issue which arises on this appeal. As the appeal is being remitted to a new FTT to be redecided afresh, it will be open to the claimant, if he wishes, to remake to that new FTT the arguments on which he did not succeed before the FTT on 20 June 2022, as well as the self-sufficiency argument.

The claimant is a Portuguese national who at the relevant time was married to an Indian national. They had (and have) two dependent children. The claimant came to Great Britain on 26 April 2018. On 5 June 2021 he made a joint claim for universal credit with his wife. He had pre-settled status until 3 January 2025. The claim for universal credit was refused by a decision-maker on behalf of the Secretary of State on 28 June 2021. This was on the basis that the claimant had failed to show that he had right to reside in Great Britain and therefore was not treated as habitually resident in Great Britain from 5 June 2021.

The legal basis of the decision is found in regulation 9 of the Universal Credit Regulations 2013, under which only certain types of residence in the United Kingdom count as a qualifying ‘right to reside’. The issue before the FTT was whether the claimant had one of those qualifying rights to reside.

The FTT by its decision of 20 June 2022 allowed the claimant’s appeal. It set aside the Secretary of State’s decision on the basis that the claimant had a right to reside in Great Britain as a self-sufficient person. In so doing, the FTT rejected arguments made by the claimant that he had a qualifying right to reside on any other basis. As this appeal comes before the Upper Tribunal by way of the Secretary of State’s challenge to the FTT’s finding of self-sufficiency, I need say no more about the arguments of the claimant which the FTT rejected.

In its Decision Notice the FTT found in favour of the claimant on self-sufficiency as follows (though of course these were not intended as the full reasoning and fact-finding of the FTT on the issue):

“19.

[The claimant] has been self-sufficient whilst in the UK. [His wife] has worked 6 hours a day, five days a week. Further, [the claimant] has been entitled to child benefit for both children and Personal Independence Payment for himself.

20.

He has lived with his brother. They share rent, utility and food bills. On occasion his brother pays a higher proportion of the household bills….

21.

I find that [the claimant] has been affiliated with comprehensive sickness insurance via access to the National Health System as and when he has required medical assistance. He has never been asked to pay for this. Therefore, I do find the appellant to be self-sufficient.”

The FTT expanded on this in its later reasons for its decision, as follows and insofar as is relevant to ‘self-sufficiency’:

“6.

REASONS AND FINDINGS

……

c)

[The claimant] stated that his brother did not “sponsor” him to the UK. He arrived in the UK in his own right. His brother has shared his own accommodation with [the claimant] and his family, assisted him both financially and provided food due to his disablement, from arrival to date….

e)

[The claimant] provided evidence that he was supported by his brother (paragraph [c)] above). His wife was able to contribute to the household from her part time earnings. The Tribunal accepted that [the claimant] is in receipt of a non means benefit, PIP. Also, the household receive child benefit for the children. Non means tested benefit do not prevent them from being social assistance. However, [the claimant] is not entirely reliant on this benefit to fund his household. [The claimant] was able to fund himself before he began receiving PIP, which is a benefit in relation to his physical disability. [The claimant] relied on the income of his wife upon which she paid taxes. Therefore, on balanced the Tribunal found that [the claimant’s] entitlement to benefit in itself did not constitute an unreasonable burden. I find that [the claimant] is sufficient so as not to become an unreasonable burden on the UK social assistance system.

f)…..[The claimant’s] income included PIP, child benefit and his wife’s monthly income of £855.36…...

k)……[the claimant] satisfies Regulation 6(1)(d) EEA Regulations 2016….

l)

With the exception of [the claimant] being unable to provide a plausible explanation for the variation of his work situation, the Tribunal overall found [the claimant] to provide uncontradictory consistent evidence with regard to the remainder of his appeal.”

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.” (The underlining is mine and has been added for emphasis.)

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.” (Again, the underlining is mine and has been added for emphasis.)

Permission to appeal having been granted to the Secretary of State by the FTT, his grounds of appeal are (the claimant is referred to as MR in those grounds):

“4.

The Secretary of State submits that the Tribunal erred in law in failing to consider adequately whether MR satisfied the requirements of a self-sufficient person under Art.7(1)(b) of Directive 2004/38/EC (“the Directive”) and reg.4(1)(c) IEEAR 2016 for the purposes of UC.

5.

There are two limbs to the requirement of self-sufficiency under Art.7(1)(b) of the Directive and reg.4(1)(c) IEEAR 2016 , namely: (1) sufficiency of resources; and (2) possession of Comprehensive Sickness Insurance (“CSI”).

6.

It is accepted, and found by the Tribunal in para 6(j) of the SOR, following the decision in VI v Commissioners of HM Revenue and Customs (Case C-247/20), that MR was closely connected and affiliated with the NHS, which can be considered as CSI. However, having CSI is only one part of the self-sufficiency two-part test, as detailed above.

7.

Under Article 7(1)(b) of the Directive, economically inactive migrants must, after the first three months’ residence, have sufficient resources not to become a burden on the social assistance system of the host Member State.

8.

Having sufficient resources is generally taken to mean that someone’s income is above that required to claim means-tested living costs benefits like UC (see Regulation 4(4)(a) IEEAR 2016). In practice this means there is very little overlapbetween, on the one hand, being a self-sufficient person and, on the other, qualifying for a means-tested benefit.

9.

It is acknowledged that claiming benefits does not automatically disqualify a person from being self-sufficient. As per the judgment in Pensionsversicherungsanstalt v Brey C-140/12 (“Brey”), in appropriate cases the public authority may need 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 characterising the individual situation of the person concerned (para 64). Factors which may be of relevance in this regard include whether or not the claimant is only experiencing temporary financial difficulties, the amount of aid which would be granted to her/him if the claim was successful and the collective impact.

10.

However, the kind of individualised assessment identified by the CJEU in Brey is, at most, only necessary where the individual has established a right of residence under Art.7(1)(b) and their circumstances then change to potentially lose that right of residence (see VP v Secretary of State for Work and Pensions [2014] UKUT 32 (AAC), [2014] AACR 25 (“VP”) at [79], [106]-[107], and AMS v Secretary of State for Work and Pensions [2017] UKUT 48, [2018] AACR 27 (second interim decision), (“AMS, 2nd Interim Decision”) at [57])).

11.

Based on the currently available evidence, this is not the case for MR. To be considered self-sufficient, MR must have sufficient resources for himself and any family member who is relying on him for a right to reside. In this case it would include MR’s wife and their two school-age children.

12.

How a claimant establishes a residence right under Art.7(1)(b) of the Directive in the first place was considered by Judge Ward in VP at paragraphs [83]-[84]. This indicates that to establish self-sufficiency the person will have to show at the start of their period of residence that they have sufficient resources for the “protection of the finances of the state” so as to enable the self-sufficiency condition to be fulfilled “during their period of residence”. Judge Ward observes “In my view 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?”. Judge Ward goes onto observe that “I do not accept that a person who could not meet the test on that basis could 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”. VP also makes clear that it is necessary for the claimant to show a degree of reliability in the claimed resources throughout the intended period of residence (VP at [89]).

13.

In this case the Tribunal found that MR arrived in the UK on 26/04/2018 [para 3] and from that date MR’s brother has shared his own accommodation with MR and his family, assisted him financially and provided him with food [para 6(c)]. MR’s third country national wife works part-time, and at the date of claim was earning £855.36 per month. MR did not provide any evidence of having savings, investments or any other sufficient resources prior to or at the commencement of his period of residence in the UK.

14.

Whilst MR has been receiving PIP from 28/11/2020 and Child benefit for his children from 06/04/2020, it is argued that it would be fundamentally contrary to the objective of Art.7(1)(b) of, and Recital (10) to, the Directive if a claimant could rely on welfare benefits (whether paid directly or indirectly) as a basis for establishing a right of residence, in order to then claim further social assistance benefits. Similar considerations are currently being addressed in the UT appeal of Versnick UA-2021-001684-USTA.

15.

In para 6(e) of the SOR the Tribunal found that MR was able to fund himself before he started receiving PIP, but did not explore this adequately, including how MR supported himself or his family prior to, or after, its receipt. It is argued that, despite referencing the support provided by MR’s brother, the Tribunal did not make any specific fact findings as to the nature of that support, such as the detail of what this entailed, or how frequently or regularly this was received.

16.

In addition, whilst MR stated that he was supported by his wife’s earnings of £855.36 per month at time of the UC claim, the Tribunal made no findings so as to analyse MR’s outgoings to see whether his wife’s earnings and brother’s support was sufficient to consider MR and his dependent family members self-sufficient.

17.

Departmental records also indicate that MR made previous unsuccessful claims to UC on 06/07/2019, 06/02/2020, and 06/12/2020.

18.

Currently there is insufficient evidence to show that MR had sufficient resources to establish a pre-existing right to reside on self-sufficiency grounds prior to his UC claim, nor is it clear what change of circumstances there have been to potentially lose that right, such as to lead to an individual assessment of his circumstances under the principles in Brey (see paragraph 10 above).

19.

Further, it is submitted that even if MR had obtained a right to reside on self-sufficiency grounds, which currently is not accepted based on the evidence, then any Brey proportionality assessment would lead to the conclusion that he was not entitled to UC in any event for the following reasons.

20.

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 (C-67/14 Alimanovic at [62]). See also AMS 2nd Interim decision, which confirms that what is required is a collective assessment, i.e., the burden on the social assistance system as a whole (paragraph 51).

21.

Guidance on the approach to such an assessment is also given in AMS 2nd interim decision, per Judge Ward at [46]. That assessment required consideration of at least the following factors:

a.

The claimant’s “personal circumstances” which characterized his “individual situation” (AMS, [46.a]).

b.

The UK’s statutorily prescribed level of benefit requirements (AMS, [46.b]).

c.

The likely future duration of his residence in the UK (AMS, [46.c]).

d.

The amount and regularity of his income (AMS, [46.d]).

e.

The burden which granting the benefit would place on the UK’s social assistance system

As part of this, it is also necessary to consider the extent to which the claim may be temporary (AMS [46.f]).

22.

In this case “the specific burden which granting that benefit would place on the social assistance system as a whole by reference to the personal circumstances characterising the individual situation of the person concerned would be roughly £905.02 per month (see Judge Ward’s comments at paragraph 22 of AMS v SSWP (PC) (final decision) [2018] AACR 27 (“AMS, Final Decision”).

23.

MR submitted that he is not looking for work due to his disability and there is no indication that at the date of claim support provided by MR’s brother would increase, or that his wife’s earnings were to shortly increase. So it is reasonable to conclude that such reliance on social-assistance would not be minimal, just to cover “temporary difficulties” (see paragraph 46(f), AMS 2nd Interim Decision and Recital 16 of the Directive), but could be “open-ended” (see paragraph 25 AMS Final Decision). To reiterate the comments at paragraph [14] above, it would be fundamentally contrary to the objective of Art.7(1)(b) of, and Recital (10) to the Directive if a claimant could rely on welfare benefits (whether paid directly or indirectly) as a basis for establishing a right of residence, in order to then claim further social assistance benefits. The Secretary of State invites the Tribunal to infer such reliance would be an unjustifiable burden.

24.

Taking into account similar reasoning to that put forward in paragraph 25 of AMS Final Decision, the Tribunal is invited to infer that the circumstances of an EU national in similar circumstances to MR, not otherwise entitled and without adequate funds and potentially being entitled to UC and its passported benefits for an indefinite period, is unlikely to be unusual; and that a particular burden is placed on the state by such persons with young children for whom their material circumstances are unlikely to change for some time.

25.

HK v SSWP (PC) [2020] UKUT 73 (AAC), para 41(“HK”), also finds that following AMS v SSWP, in practice it will be a very unusual case where applying a personalised assessment will lead to a conclusion in favour of the claimant.

26.

Accordingly, taking into account the findings in Brey, AMS and HK, it is submitted that the Tribunal should have found that the claim by MR represents an unreasonable burden on the social assistance system of the UK, with the consequence that even if Brey can be applied, based on the current evidence, MR lacks the relevant right to reside, and the claim should have been dismissed.

27.

I therefore respectfully request that the decision of the First-tier Tribunal on 20/06/2022 be set aside and the matter be re-determined under section 12(2) of the Tribunal, Courts and Enforcement Act 2007.”

Four aspects of these grounds are worth emphasising. First, is the issue of whether PIP and child benefit may count towards a claimant being self-sufficient. As the ground points out, similar issues were in issue in the appeal of Versnick in the Upper Tribunal. It was because the Upper Tribunal’s decision in Versnick was awaited, and then went on appeal to the Court of Appeal, that this appeal has been stayed from being decided for a considerable period of time. As will become apparent below, the Secretary of Stare now accepts 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. The second aspect to highlight is that even setting aside whether PIP and child benefit should count, it is part of the SSWP’s case that the claimant was not self-sufficient even before he was awarded PIP. A related and third point is that a live issue arises whether any Brey individualised assessment arises on the facts. The fourth point is that the remedy which the Secretary of State seeks is for the FTT’s decision to be set aside and the appeal redecided.

In a subsequent submission the Secretary of State argued the Upper Tribunal’s decision in the Versnick case did not have any particular relevance to the issues arising in this appeal. In the directions of 22 January 2024, Upper Tribunal Judge Ward questioned whether this view as to the relevance of Versnick was correct, and suggested if this appeal was allowed and remitted the new FTT would need guidance as to “whether PIP and child benefit could be taken into account as resources”. By a reply submission, the Secretary of State accepted that the Versnick case raised wider issues around self-sufficiency and so might be relevant to this appeal.

The Court of Appeal dismissed the Secretary of State’s appeal in the Versnick case at the end of November 2024: see SSWP v Versnick and Jarvis-Wingate [2024] EWCA Civ 1454. Judge Ward having by then retired as a salaried judge of the Upper Tribunal, I gave directions on 10 January 2025 seeking the views of the parties on the relevance (or otherwise) of the Court of Appeal’s decision in Versnick to this appeal. The SSWP in a submission dated 10 February 2025 argued the Court of Appeal’s decision was relevant to this appeal in the following respects:

“2.

The CoA found that the claimant in Versnick had a qualifying right to reside for Universal Credit (“UC”) purposes as a self-sufficient person under Article 7(1)(b) of the Citizens’ Rights Directive 2004/38/EC (“CRD”). The SSWP is of the view that two issues determined by the CoA in Versnick are relevant to the current appeal:

a.

Firstly, although the SSWP was unsuccessful in Versnick, the CoA accepted the SSWP’s main argument that the line of authority from Court of Justice of the European Union (“CJEU”) case law, which held that it was not relevant to look at the origin of a person’s resources, was distinguishable, as those cases were not concerned with the situation where the direct or indirect source of those resources were the social assistance system of the host state (paragraph 70 of the CoA’s judgment). However, in Versnick, the EU citizen’s presence in the household did not increase, but rather led to a decrease, in the amount of social assistance payable to his British Citizen wife, so the social assistance paid to the household could be taken into account when assessing the adequacy of his resources (paragraph 71 of the CoA’s judgment).

b.

Secondly, the CoA held that once Versnick acquired settled status under the domestic EU Settlement Scheme (EUSS), the burden on the social assistance system of the UK ceased (paragraph 99 of the CoA’s judgment).

Origin of resources

3.

In the present appeal, the SSWP noted in her application for permission to appeal (“PTA”) the First-tier decision to the UT that the Respondent, at the time of his UC claim, was in receipt of both Personal Independence Payment (“PIP”) and Child Benefit (“CB”). The SSWP argued that it would be contrary to the objective of Article 7(1)(b), and Recital (10) of the CRD if a claimant could rely on welfare benefits (whether paid directly or indirectly) as a basis for establishing a right of residence in order to then claim further social assistance (see paragraph 14 of the PTA). By a submission dated 26 February 2024, the SSWP subsequently suggested that the present appeal should be stayed pending the CoA outcome in Versnick which raised wider issues around the origin of resources when establishing a right to reside on self-sufficiency grounds.

4.

The meaning of “social assistance” in the context of Article 7(1)(b) of the CRD was considered by the CJEU in Pensionsversicherungsanstalt v Brey (Case C-140/12) [2014] 1 WLR 1080 (“Brey”) [61]:

"… That concept must be interpreted as covering all assistance introduced by the public authorities, whether at national, regional or local level, that can be claimed by an individual who does not have resources sufficient to meet his own basic needs and the needs of his family and who, by reason of that fact, may become a burden on the public finances of the host Member State during his period of residence which could have consequences for the overall level of assistance which may be granted by that State…" (also see Versnick paragraph 51).

5.

In the present appeal, the Respondent made a joint claim for UC on 05 June 2021 and had been receiving PIP from 28 November 2020 and his wife was receiving CB for their children from 06 June 2020. The weekly amount of PIP and CB the household received at this point was £157.70 (i.e. £35.15 for CB for two children and £122.55 for the PIP standard rate care and enhanced mobility rate). The SSWP accepts that these benefits are not social assistance in accordance with the above Brey definition for the purposes of Article 7(1)(b) of the CRD (also see paragraph 53 of Versnick).Therefore, the SSWP accepts that these PIP and CB welfare benefit payments cannot be distinguished as “social assistance” under the principles established in Versnick.

6.

However, CB is itself subject to a right to reside test. CJEU case law has confirmed that the need to protect the finances of the host Member State justifies checking whether residence is lawful when a social benefit, such as CB, is granted to persons from other Member States who are not economically active, as such grant could have consequences for the overall level of assistance which may be accorded by that State .

7.

It is not currently clear to the SSWP what right to reside the Respondent or his wife were exercising which may have supported the initial award of CB on 06 June 2020. However, if the Respondent’s wife’s qualifying right to right to reside for CB purposes was dependent on the Respondent (see paragraph 11 below), it is submitted that the Respondent cannot rely on his wife’s receipt of CB to support his self-sufficiency claim for UC purposes. This is because entitlement to both benefits, CB and UC, would depend on the Respondent having sufficient resources for both himself and any relevant family member (or having an alternative qualifying right to reside).

8.

In any event, the SSWP submits that the receipt of PIP and CB alone does not show that the Respondent had a right to reside as a self-sufficient person for the purpose of his claim for UC. As set out in the SSWP’s PTA dated 22 March 2023, there is insufficient evidence to show that the Respondent had sufficient resources to establish a right to reside on self-sufficiency grounds (see paragraphs 15 to 18 of the SSWP’s PTA).

9.

The SSWP maintains her view that current evidence does not demonstrate that the Respondent had a right to reside as a self-sufficient person at the date of his claim for UC on 05 June 2021.

Burden on the social assistance system of the UK

10.

The SSWP submits that another issue considered by the CoA in Versnick, and relevant to the present appeal (in the context of a Brey proportionality assessment, paragraph 9 of the PTA), is whether a person receiving social assistance stops being a burden on the social assistance system of the UK once they acquire settled status under the UK’s domestic EUSS. The CoA in Versnick agreed with the UT’s findings that once the claimant in Versnick attained settled status, it could no longer be said he was imposing a burden, as his entitlement to social assistance would be derived from his own rights in the UK (see paragraph 99 of the CoA judgment).

11.

In the present appeal, the Respondent was granted settled status under the EUSS on 21 October 2023. The SSWP accepts that the Respondent himself could therefore not be considered a burden on the social assistance system of the UK after 21 October 2023. However, any UC awarded would be on a couple basis, and therefore, if it was determined that the Respondent had a right to reside on self-sufficiency grounds in the period before his UC claim (which is currently not accepted based on the evidence), the Respondent’s wife, who is an Indian National, would in turn derive her right to reside through the Respondent’s CRD right to reside on self-sufficiency grounds (and/or permanent residence grounds). Accordingly, it is submitted that the burden would not cease until the Respondent’s wife was also granted settled status on 17 July 2024.

12.

Consequently, the SSWP maintains her position as set out in her PTA, that even if the Respondent was considered to have had a right to reside on self-sufficiency grounds in the period before his UC claim, which is currently denied based on the evidence, a Brey proportionality assessment would conclude that the burden was such that the Respondent would not be entitled to UC in any event (see paragraphs 19 to 26 of the SSWP’s PTA).

Stay request

13.

The SSWP would like to bring the Tribunal’s attention to the recent UT case in SSWP v VB and Another UA-2021-000531-USTA [2024] UKUT 212 (AAC) (“VB”) where the UT has accepted that a 27-month period of burden on the social assistance system should be considered as “temporary difficulties”, as referred to in recital (16) CRD and in Brey at [72].

14.

It is the SSWP’s view that “temporary” in the context of a citizen’s rights under Article 7(1)(b) CRD, which provides that Union citizens only need to enjoy it for a maximum of 5 years before enjoying a permanent right of residence, must mean a matter of weeks or few months only.

15.

In the present appeal, the Respondent applied for UC on 5 June 2021 and was granted settled status on 21 October 2023, while his third country national wife was not granted settled status until 17 July 2024. He/They would therefore be relying on UC for a period of approximately 27 to 36 months before he/they acquired domestic EUSS settled status. It is the SSWP’s position that the CJEU in Brey at [69] and [72] would not have envisaged a 27 to 36 month period of difficulty as being “temporary”.

16.

The SSWP applied for permission to appeal VB to the CoA on 07 January 2025 and is currently awaiting the outcome. As the period of entitlement to UC, and therefore the burden on the social assistance system in the UK, in the present appeal is very similar to the one in VB, any further development in the CoA is likely to affect the present appeal.

17.

Should the Tribunal not accept the SSWP’s arguments above and in her previous submissions that the First-tier Tribunal had erred in law, the SSWP respectfully invites the Tribunal to use its powers to stay this case pending the outcome of the SSWP’s application for permission to appeal in the above-mentioned case and, if permission is granted, until the determination of that appeal. The SSWP believes that the Respondent would not be significantly affected by the staying of this appeal as he has been receiving UC since 24 July 2024 and is currently not in a vulnerable position.”

In subsequent correspondence to the Administrative Appeal Chamber’s office on London, dated 17 April 2025, the Secretary of State advised that the Court of Appeal had refused him permission to appeal the decision in VB, and accordingly the Secretary of State no longer sought any further stay on these appeal proceedings.

The claimant has made his own submissions on the appeal without the benefit of any assistance (legal or otherwise). He, understandably, has not been able to address the legal arguments made by the Secretary of State. His argument is that he was awarded universal credit by the FTT, he has tried to work but due to his disability has not been able to hold on to employment.

In his most recent submission the claimant argues that at the time he applied for universal credit both his children were in full time education, his wife was working but due to a physical disability he could not work. He asks that “this time” he gets a final decision on his entitlement to universal credit once and for all as the dispute has left him stressed and worried. However, the claimant said that he did not want an oral hearing of the appeal.

I regret that I cannot provide the claimant with the immediate answer about his entitlement which he seeks. That can only be arrived at after a further evidential hearing before a new FTT, which I would strongly urge the claimant to attend and give evidence. I accept the argument of the Secretary of State that there are critical evidential gaps in the FTT’s analysis of whether the claimant was “self-sufficient”. As self-sufficiency was the sole basis on which the FTT found the claimant had a qualifying right to reside, its decision was legally flawed and needs to be set aside.

As the case law to which the Secretary of State has referred makes clear, the Brey individualised assessments only applies where a right of residence has arisen and has been lost. It does not apply so as to confer a right of residence on a claimant who has not previously had such a right: see VP v SSWP (JSA) [2014] UKUT 32 (AAC); [2014] AACR 25 at paragraph [79].

It follows from this that the first (and perhaps only) focus, in terms of self-sufficiency as a basis for a right to reside for the claimant, was not on any Brey type individualised assessment, but on whether the claimant had established a right to reside as a self-sufficient person. It was on that issue that, in my judgement, the FTT erred in law. It did so, in essence, because it failed to consider whether the claimant was self-sufficient throughout his period of residence in Great Britian, or at least after his first three months of residence. That the FTT had to do this is implicit in VP (see paragraphs [83]-[84] in particular, admittedly in the context of VP showing he had five years of qualifying residence as a self-sufficient person), but also 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 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 a(n unreasonable) burden on the host State.

In this case the FTT found that the claimant arrived in the UK on 26 April 2018. The award of child benefit arose just under two years later and that of PIP nearly eight months after that. Ignoring the first three months of residence, in terms of being self-sufficient the claimant had (and has) to show that he had been self-sufficient from 26 July 2018. For a period of well over a year that self-sufficiency had to be shown without the child benefit income and without the award of PIP. I accept the Secretary of State’s argument that the FTT failed to address this period (and later periods) adequately in its fact-finding and reasoning.

The FTT held in paragraph 6e) of its reasons that the claimant “was able to fund himself before he began receiving PIP”, but it nowhere in my judgement provides any adequate explanation of the nuts and bolts of how the claimant had been able to fund his and his family from 26 July 2018 onwards. For example, what was the nature of the brother’s support (other than sharing his accommodation with the claimant brother and his family) at that time, and how frequently was it provided? And what was the claimant’s wife earning in and from July 2018? Further, how (if at all) did these sources of funding align with regulation 4(3) and (4) of the EEA Regs and, per Article 8(4) of Directive 2004/38/EC the “threshold below which nationals of the host Member State become eligible for social assistance”? None of this was sufficiently answered by the FTT.

The same is also true, in my judgement, in terms of the FTT’s assessment of the sufficiency of the claimant’s resources after child benefit and then PIP were in payment to the claimant and his family. The Secretary of State now accepts, in effect, that both benefits can be taken into account as part of the claimant and his family’s income resources when deciding whether he was self-sufficient. It may be unlikely that if the claimant was self-sufficient before these benefits came into payment, he ceased to be when either or both were in payment. However, that would depend on being satisfied that the other sources of support which made the claimant self-sufficient (if this be so) after 26 July 2018 remained in a place after child benefit and then the PIP was awarded. The FTT’s findings and reasoning do not address this either.

If the claimant can establish that he was self-sufficient throughout the period from 26 July 2018 until he claimed universal credit on 5 June 2021, or if applicable until some date earlier than 5 June 2021, it may that the Brey style individualised assessment may need to be applied from 5 June 2021 (or the earlier date).

I note in terms of the claimant’s wife’s award of child benefit, the Secretary of State’s concern about child benefit also being subject to a right to reside test and whether the claimant’s wife satisfied that right to reside test in relation to child benefit (see paragraphs 7 of the SSWP’s submission set out in paragraph 13 above). That may be an issue the new FTT will need to explore. However, the SSWP will need to satisfy the FTT of the legal basis for the FTT going behind the award of child benefit given that that awarding decision was made by HMRC, the child benefit decision is not before the FTT, and it should be treated as a final decision concerning the claimant’s wife’s entitlement to child benefit: per section 17(1) of the Social Security Act 1998 (as made applicable to HMRC and child benefit by section 50(1) and (2)(e) of the Tax Credits Act 2002): see further paragraph [9] of my observations in Secretary of State for Work and Pensions v GK (ESA) [2023] UKUT 273 (AAC).

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

The Secretary of State’s success on this appeal to the Upper Tribunal on error of law says nothing one way or the other about whether the claimant’s appeal 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.