Court of Appeal dismisses Secretary of State’s appeal in Secretary of State for Work and Pensions v Versnick and Jarvis-Wingate [2024] EWCA Civ 1454 (29 November 2024)
4 December 2024
This case concerned whether an EU national with pre-settled status could rely on benefits paid to his wife, a British citizen, to be entitled to Universal Credit (‘UC’) as a self-sufficient person, pursuant to Art.7(1)(b) Citizens Rights Directive. Under Art.7(1)(b), a person will be self-sufficient if they have sufficient resources not to become an unreasonable burden on the state’s social assistance system during their residence.
The Second Respondent (‘J’) was severely disabled and in receipt of benefits in her own right. After her marriage to the First Respondent (‘V’) in 2017, V moved in and began providing full-time care for her. He began to receive Carer’s Allowance, and J’s ESA award was increased to couple rates with a carer premium added; but J lost the severe disability premium, and V’s Carer’s Allowance was deducted from the award. That meant that the overall amount of ESA being paid to J decreased as a result of V entering the household.
After moving to another area in 2020, the couple were required to claim UC. The SSWP refused their joint claim on the basis that V had not demonstrated a qualifying right to reside to be entitled, and instead paid UC to J at the single person rate. V successfully appealed to the First-tier Tribunal; the SSWP further appealed to the Upper Tribunal.
In the Upper Tribunal, UTJ Ward remade the FTT’s decision in favour of V. The UT held that the Directive is concerned with social assistance, rather than welfare benefits generally, and Carer’s Allowance is not social assistance, but ESA is. Therefore, when V joined the household, the burden on the social assistance system decreased, as the ESA payable to J decreased overall. It also held that V could rely on resources made available to him by his wife: not all of those benefits paid to her were social assistance and those that were social assistance were paid to her in her own right. The UT considered that V did not need to demonstrate that he had sufficient resources for both himself and his wife, as she was a British citizen and therefore does not come within the scope of the Directive.
Applying Brey,[1] the UT held that the correct approach to take is an individualised assessment to consider whether granting benefit would place an unreasonable burden on the state’s social assistance system. This meant considering the difference between: a) the amount that the couple were actually receiving with b) how much additional social assistance would be paid by allowing V’s UC claim. The UT assessed this to be a difference of £347 each month, over a period of 23 months until V would become eligible for settled status (and so would be entitled to UC as of right). It considered that the cohort of people in a similar position to V would be a narrow group. As a result, the overall burden on the UK’s social assistance system would not be an unreasonable one.
The SSWP appealed to the Court of Appeal on the basis that the UT had erred:
- By taking into account V’s resources derived from J’s social assistance at all when considering whether V was self-sufficient;
- In its consideration of whether the level of resources was sufficient; and
- In its approach to assessing the burden that would be placed on the UK’s social assistance system if UC was awarded to V.
The Court of Appeal dismissed the appeal on all three grounds.
In relation to ground 1, the critical part of UTJ Ward’s reasoning was that the unusual facts of this case meant that V’s entering the household led to no increase in the burden on the UK social assistance system. The UT had correctly applied a causal link test by considering that there must be a causal link between V’s exercise of free movement rights and an additional burden on the UK’s social assistance system of the host State. As such, the UT did not fall into error.
In assessing the level of resources, the Court of Appeal held that the UT had not erred. It correctly interpreted Art.8(4) of the Directive, which establishes a ceiling amount above which a person must be regarded as having sufficient resources, but precludes the state imposing a minimum floor below which a person lacks sufficient resources without addressing the circumstances of the individual case. In its assessment, the UT correctly applied the household rate, rather than the single person rate, and so did not impermissibly ‘stretch’ the household resources. UTJ Ward was right to hold that V did not need to show sufficient resources for himself and J, as J is a British citizen and so is entitled to social assistance benefits in her own right.
The Court of Appeal noted that some of the SSWP’s criticisms in relation to ground 3 were challenges to matters of fact, assessment or evaluation by the UT and therefore beyond the CA’s jurisdiction. The CA referred to the dicta of Hale LJ in Cooke,[2] which noted the specialist experience of the social security tribunals and that this should be taken into account by appellate courts. In relation to the points of law: the UT did not err in its approach to the time periods relevant to the assessment of the burden, and was right to say that once V attained settled status then there would be no relevant burden on the UK social assistance system.
The judgment of the Court of Appeal can be found here.
Tom Royston leading Alexa Thompson acted for the Second Respondent, instructed by Claire Hall and Martin Williams at Child Poverty Action Group.
[1] Pensionsversicherungsanstalt v Brey (Case C-140/12) [2014] 1 WLR 1080.
[2] Cooke v Secretary of State for Social Security [2001] EWCA Civ 734; [2002] 3 All ER 279, [15].
