UKUT Dismisses Appeal on Disability Living Allowance Eligibility

[2019] AACR 21 ([NAME] v [NAME]) ([NAME] v [NAME])

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[2019] AACR 21 ([NAME] v [NAME] ([NAME]) [NAME] v [NAME]([NAME])) [2016] UKUT 547 (AAC)

Judge Jacobs

CDLA/0373/2016 12 December 2016 CA/0224/2015

[NAME] - [NAME] allowance and disability living allowance - “genuine and sufficient link to the [NAME]”

The Upper Tribunal considered two appeals which raised questions under Regulation (EC) 883/2004 (‘the [NAME]’). Firstly, whether residence in another member state could be aggregated with presence in the UK to satisfy the domestic past presence test for disability living allowance (‘[NAME]’) and attendance allowance (‘[NAME]’). Secondly whether the legislation requiring ‘a genuine and sufficient link’ to the UK’s [NAME] was valid under [NAME] (‘[NAME]’) law. The relevant legislation governing entitlement to [NAME] was set out in section 71(6) of the [NAME] Act 1992 (the ‘Act’) with conditions found in the [NAME] (Disability Living Allowance) Regulations 1991 (SI No 2890). The provisions in respect of [NAME] were found in section 64(1) of the Act with conditions set out in regulation 2 and 2A of the [NAME] (Attendance Allowance) Regulations 1991 (SI No 2740). Section 84(2) of the Welfare Reform Act 2012 applied to both benefits and required that the UK be the ‘competent state’ and that the [NAME] was a relevant [NAME] regulation for the purpose of that section. The first claimant, [NAME], was a 16 [NAME] old Irish national who had lived in Ireland, apart from a break of one [NAME], until 2013 when he returned to the UK with his [NAME]. His mother had last worked, in Ireland, for four months before he was born and had received a domiciliary care allowance for him there as well as her own carer’s allowance. His application for [NAME] was refused by the Secretary of State on the basis that he did not have a ‘genuine and sufficient’ link to the UK for a period of 104 weeks out of the previous 156 weeks. The First-tier Tribunal upheld this decision on appeal deciding that he could not aggregate his residence in Ireland with his residence in the UK to satisfy the past presence test. The second claimant [NAME] was a [NAME] who came to the UK in 2013 having lived continuously in Germany since 1998. Her claim for [NAME] was refused by the Secretary of State on the basis that she had no UK or other EEA state pension and did not satisfy the conditions of having been present in the UK for 104 weeks out of the last 156 weeks. The First-tier Tribunal allowed her appeal and decided that her residence in Germany could be aggregated with her residence in the UK so that she satisfied the past presence test. [NAME] appealed to the Upper Tribunal with the permission of the First-tier Tribunal and the Secretary of State appealed in [NAME]’s case with the permission of the Upper Tribunal.

Held, dismissing, [NAME]’s appeal and allowing the Secretary of State’s appeal in respect of [NAME] that:

1. Article 6 of the regulation did not allow aggregation of mere residence. [NAME] v Secretary of State for Work and Pensions (C-503/09) laid down a general principle, derived from Article 21(1) of the Treaty on the Functioning of the [NAME] (‘[NAME]’), that a Member State may insist on a claimant demonstrating ‘a genuine and sufficient link’ with that State as a condition for awarding benefit. It would render that decision nugatory if a claimant’s residence in another Member State could be aggregated under Article 6 as Article 6 could not be interpreted in a way that was inconsistent with [NAME]. 2. [NAME] also accepted that it was permissible to have a past presence test, provided it was supplemented by a genuine and sufficient link test for [NAME]; 3. legislation requiring a genuine and sufficient link to the United Kingdom’s [NAME] was not valid under [NAME] law and the proper approach for [NAME] and the First-tier Tribunal was to apply [NAME] and to disregard the words ‘[NAME]’ in the legislation.

[2019] AACR 21 ([NAME] v [NAME]) ([NAME] v [NAME])

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DECISION OF THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER)

CDLA/0373/2016 This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007: The decision of the First-tier Tribunal under reference SC167/14/00319, made on 25 September 2015 at Aldershot, did not involve the making of an error on a point of law.

CA/0224/2015 As the decision of the First-tier Tribunal (made on 6 August 2014 at [ADDRESS] under reference SC064/14/00290) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007 and the decision is RE-MADE. The decision is: on her claim, treated as made on 19 June 2013 and refused on 19 November 2013, the claimant was not entitled to an attendance allowance. Permission to appeal to the Court of Appeal By agreement, I reduce the time within which an application may be made for permission to appeal against my decision to the Court of Appeal to 2 months from the date when this decision is issued to the parties. As I said at the hearing, I consider that the issues in this case merit the attention of that Court and will give permission if an application is made.

Contents A. Introduction 1 B. History and background

[NAME] 2-4 [NAME] 5-6 Concessions 7 The oral hearing 8 C. The legislation

Disability living allowance 9 Attendance allowance 10 [NAME] 11 [NAME] 883/2004 12-13 [NAME] 987/2009 14-15 [NAME] v Secretary of State for Work and Pensions Case (C-503/09) ECLI:[NAME]:C:2011:500 16-17 E. Article 6 does not allow aggregation of mere residence 18-27

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[NAME] permits a link with the member State not with its [NAME] 28- 31 G. Presence as a link 32 H. Habitual residence in the genuine and sufficient link test 33 I. There is no need for a reference 34 J. Disposal - [NAME] 35-40 K. Disposal – [NAME] 41-43

REASONS FOR

DECISION A. Introduction 1. These are two lead cases on issues that have arisen under Regulation (EC) 883/2004. One issue is whether residence in another Member State can be aggregated with presence here in order to satisfy the domestic past presence test for disability living allowance and attendance allowance. My answer is: no. The other issue is whether the legislation requiring a genuine and sufficient link to the United Kingdom’s [NAME] is valid under [NAME] law. My answer is: no. B. History and background [NAME] 2. [NAME] is Irish. He was born on [DATE] and, apart from a break in 2003-2004, lived in Ireland until 26 June 2013, when he came to this country with his mother. She is [NAME] and last worked (in Ireland, for four months) before [NAME] was born. While in Ireland, [NAME] received a domiciliary care allowance and his mother received a carer’s allowance. 3. [NAME]’s claim for a disability living allowance was made on 28 June 2013 and refused on 3 September 2013. The grounds for the decision were recorded by the decision-maker: It has been decided that he does not have a genuine and sufficient link to the UK as* he has not been present in the UK for a period of 104 weeks out of the previous 156 weeks and therefore is not entitled to [NAME] from 28/06/13. * The decision-maker may have meant and rather than as, which would fit better with the structure of the legislation. The First-tier Tribunal dismissed the appeal, deciding that neither the claimant nor his mother satisfied the genuine and sufficient link test and that he could not aggregate his residence in Ireland with his residence in this country in order to satisfy the past presence test.

4. The tribunal gave the claimant permission to appeal to the Upper Tribunal. [NAME] 5. [NAME] is [NAME]. She was born on [DATE] and came to this country on 29 May 2013, having lived continuously in Germany since 1998. Her claim for an attendance allowance was treated as made on 19 June 2013 and refused on 19 November 2013. The grounds for the decision were recorded by the decision-maker:

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“The customer has moved to GB on 29/05/13 from an EEA country. They do not have a UK state pension or a pension from an EEA state. She does not satisfy the conditions of being present in the UK for 104 weeks out of the last 156 weeks”. The First-tier Tribunal allowed the appeal, deciding that the claimant’s residence in Germany could be aggregated with her residence in this country, with the effect that she satisfied the past presence test.

6. The tribunal refused the Secretary of State permission to appeal to the Upper Tribunal, but I gave the Secretary of State permission. Concessions 7. The Secretary of State conceded that: (i) both claimants were within the scope of Regulation 883/2004; (ii) they were both habitually resident in Great Britain; and (iii) the United Kingdom was the competent State for the payment of sickness benefits. Neither party challenged the generally accepted view that the care component of disability living allowance and attendance allowance were sickness benefits. The oral hearing 8. I directed an oral hearing of these appeals, to be heard together. The hearing took place on 4 November 2016. [NAME] of counsel appeared for the claimants. [NAME] of counsel appeared for the Secretary of State. I am grateful to both of them for their written and oral arguments as well as for the subsequent written submissions that they provided on outstanding issues. As always, the Upper Tribunal is grateful for the support that the [COMPANY] has given by representing both claimants. C. The legislation Disability living allowance 9. Disability living allowance is governed by sections 71 to 76 of the [NAME] Act 1992. Section 71(6) provides: (6) A person shall not be entitled to a disability living allowance unless he satisfies prescribed conditions as to residence and presence in Great Britain. Those conditions are prescribed by the [NAME] (Disability Living Allowance) Regulations 1991 (SI No 2890): 2 Conditions as to residence and presence in Great Britain (1) Subject to the following provisions of this regulation and regulations 2A and 2B, the prescribed conditions for the purposes of section 71(6) of the Act as to residence and presence in Great Britain in relation to any person on any day shall be that– (a) on that day– (i) he is habitually resident in the United Kingdom, the Republic of Ireland, the Isle of Man or the Channel Islands; and (ib) he is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999 or section 115 of that Act does not apply to him for the purposes of entitlement to disability living allowance by virtue of regulation 2 of the [NAME]

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(Immigration and Asylum) Consequential Amendments Regulations 2000, and (ii) he is present in Great Britain; and (iii) he has been present in Great Britain for a period of, or for periods amounting in the aggregate to, not less than 104 weeks in the 156 weeks immediately preceding that day; 2A Persons residing in Great Britain to whom a relevant [NAME] applies (1) Regulation 2(1)(a)(iii) shall not apply where on any day– (a) the person is habitually resident in Great Britain; (b) a relevant [NAME] applies; and (c) the person can demonstrate a genuine and sufficient link to the [NAME]. (2) For the purpose of paragraph (1)(b) and regulation 2B, ‘relevant [NAME]’ has the meaning given by section 84(2) of the Welfare Reform Act 2012. Section 84(2) of the Welfare Reform Act 2012 provides: 82 No entitlement to disability living allowance where UK is not competent state … (2) Each of the following is a ‘relevant [NAME]’ for the purposes of this section- … (b) Regulation (EC) No. 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of [NAME] systems. Attendance allowance 10. Attendance allowance is governed by sections 64 to 67 of the [NAME] Act 1992. Section 64(1) provides: (1) A person shall be entitled to an attendance allowance if … he satisfies … prescribed conditions as to residence and presence in Great Britain. Those conditions are prescribed by the [NAME] (Attendance Allowance) Regulations 1991 (SI No 2740): 2 Conditions as to residence and presence in Great Britain (1) Subject to the following provisions of this regulation and regulations 2A and 2B, the prescribed conditions for the purposes of section 35(1) of the Act* as to residence and presence in Great Britain in relation to any person on any day shall be that– (a) on that day– (i) he is habitually resident in the United Kingdom, the Republic of Ireland, the Isle of Man or the Channel Islands; and (ib) he is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999 or section 115 of

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that Act does not apply to him for the purposes of entitlement to disability living allowance by virtue of regulation 2 of the [NAME] (Immigration and Asylum) Consequential Amendments Regulations 2000, and (ii) he is present in Great Britain; and (iii) he has been present in Great Britain for a period of, or for periods amounting in the aggregate to, not less than 104 weeks in the 156 weeks immediately preceding that day; * This refers to the relevant section of the [NAME] Act 1975, which has been consolidated into section 64 of the 1992 Act. It is to be read as a reference to section 64 by virtue of section 17(2)(a) of the Interpretation Act 1978. 2A Persons residing in Great Britain to whom a relevant [NAME] applies (1) Regulation 2(1)(a)(iii) shall not apply where on any day– (a) the person is habitually resident in Great Britain; (b) a relevant [NAME] applies; and (c) the person can demonstrate a genuine and sufficient link to the [NAME]. (2) For the purpose of paragraph (1)(b) and regulation 2B, ‘relevant [NAME]’ has the meaning given by section 84(2) of the Welfare Reform Act 2012. Section 84(2) of the Welfare Reform Act 2012 is above. [NAME]

11. The parties referred to two provisions of the Treaty on the Functioning of the [NAME] ([NAME]). Article 21(1) provides:

1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect. Article 48 provides: The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure, adopt such measures in the field of [NAME] as are necessary to provide freedom of movement for workers; to this end, they shall make arrangements to secure for employed and self- employed migrant workers and their dependants: (a) aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the laws of the several countries; (b) payment of benefits to persons resident in the territories of Member States. [NAME] 883/2004 12. The parties referred to these recitals to Regulation (EC) 883/2004: Whereas:

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(1) The rules for coordination of national [NAME] systems fall within the framework of free movement of persons and should contribute towards improving their standard of living and conditions of employment. … (10) However, the principle of treating certain facts or events occurring in the territory of another Member State as if they had taken place in the territory of the Member State whose legislation is applicable should not interfere with the principle of aggregating periods of insurance, employment, self-employment or residence completed under the legislation of another Member State with those completed under the legislation of the [NAME]. Periods completed under the legislation of another Member State should therefore be taken into account solely by applying the principle of aggregation of periods. (11) The assimilation of facts or events occurring in a Member State can in no way render another Member State competent or its legislation applicable. … (13) The coordination rules must guarantee that persons moving within the Community and their dependants and survivors retain the rights and the advantages acquired and in the course of being acquired. (14) These objectives must be attained in particular by aggregating all the periods taken into account under the various national legislation for the purpose of acquiring and retaining the right to benefits and of calculating the amount of benefits, and by providing benefits for the various categories of persons covered by this Regulation. … (45) Since the objective of the proposed action, namely the coordination measures to guarantee that the right to free movement of persons can be exercised effectively, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of that action, be better achieved at Community level, the Community may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary, in order to achieve that objective.

13. The parties referred to these provisions of the Regulation:

TITLE I GENERAL PROVISIONS Article 1 Definitions For the purposes of this Regulation: … (j) ‘residence’ means the place where a person habitually resides;

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… (v) ‘period of residence’ means periods so defined or recognised by the legislation under which they were completed or considered as completed; … Article 2 Persons covered 1. This Regulation shall apply to nationals of a Member State, stateless persons and [NAME] residing in a Member State who are or have been subject to the legislation of one of more Member States, as well as to the members of their families and to their survivors. … Article 6 Aggregation of periods Unless otherwise provided for by this Regulation, the competent institution of a Member State whose legislation makes: – the acquisition, retention, duration or recovery of the right to benefits, – the coverage by legislation, or – the access to or the exemption from compulsory, optional continued or voluntary insurance, conditional upon the completion of periods of insurance, employment, self-employment or residence shall, to the extent necessary, take into account periods of insurance, employment, self-employment or residence completed under the legislation of any other Member State as though they were periods completed under the legislation which it applies. TITLE II DETERMINATION OF THE LEGISLATION APPLICABLE Article 11 General rules 1. Persons to whom this Regulation applies shall be subject to the legislation of a single Member State only. Such legislation shall be determined in accordance with this Title.

2. For the purposes of this Title, persons receiving cash benefits because or as a consequence of their activity as an employed or self-employed person shall be considered to be pursuing the said activity. This shall not apply to invalidity, old-age or survivors' pensions or to pensions in respect of accidents at work or occupational diseases or to sickness benefits in cash covering treatment for an unlimited period.

3. Subject to Articles 12 to 16: (a) a person pursuing an activity as an employed or self-employed person in a Member State shall be subject to the legislation of that Member State;

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(b) a civil servant shall be subject to the legislation of the Member State to which the administration employing him is subject; (c) a person receiving unemployment benefits in accordance with Article 65 under the legislation of the Member State of residence shall be subject to the legislation of that Member State; (d) a person called up or recalled for service in the armed forces or for civilian service in a Member State shall be subject to the legislation of that Member State; (e) any other person to whom sub-paragraphs (a) to (d) do not apply shall be subject to the legislation of the Member State of residence, without prejudice to other provisions of this Regulation guaranteeing him benefits under the legislation of one or more other Member States. TITLE V MISCELLANEOUS PROVISIONS Article 83 Implementation of legislation Special provisions for implementing the legislation of certain Member States are referred to in Annex XI.

ANNEX XI SPECIAL PROVISIONS FOR THE APPLICATION OF THE LEGISLATION OF THE MEMBER STATES

UNITED KINGDOM … 2. For the purposes of applying Article 6 of this Regulation to the provisions governing entitlement to attendance allowance, career’s allowance and disability living allowance, a period of employment, self-employment or residence in the territory of a Member State other than the United Kingdom has be taken into account in so far as is necessary to satisfy conditions as to required periods of presence in the United Kingdom, prior to the day on which entitlement to the benefit first arises. [NAME] 987/2009 14. The parties referred to this recital to Regulation (EC) 987/2009: Whereas: (1) Regulation (EC) No 883/2004 modernises the rules on the coordination of Member States’ [NAME] systems, specifying the measures and procedures for implementing them and simplifying them for all the players involved. Implementing rules should be laid down.

15. The parties referred to these provisions of the Regulation:

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TITLE 1 GENERAL PROVIONS CHAPTER III Other general provisions for the application of the basic Regulation Article 9 Other procedures between authorities and institutions 1. Two or more Member States, or their competent authorities, may agree procedures other than those provided for by the implementing Regulation, provided that such procedures do not adversely affect the rights or obligations of the persons concerned.

2. Any agreements concluded to this end shall be notified to the Administrative Commission and listed in Annex 1 to the implementing Regulation.

3. Provisions contained in implementing agreements concluded between two or more Member States with the same purpose as, or which are similar to, those referred to in paragraph 2, which are in force on the day preceding the entry into force of the implementing Regulation and are included in Annex 5 to Regulation (EEC) No 574/72, shall continue to apply, for the purposes of relations between those Member States, provided they are also included in Annex 1 to the implementing Regulation. Article 11 Elements for determining residence 1. Where there is a difference of views between the institutions of two or more Member States about the determination of the residence of a person to whom the basic Regulation applies, these institutions shall establish by common agreement the centre of interests of the person concerned, based on an overall assessment of all available information relating to relevant facts, which may include, as appropriate: (a) the duration and continuity of presence on the territory of the Member States concerned; (b) the person’s situation, including: (i) the nature and the specific characteristics of any activity pursued, in particular the place where such activity is habitually pursued, the stability of the activity, and the duration of any work contract; (ii) his family status and family ties; (iii) the exercise of any non-remunerated activity; (iv) in the case of students, the source of their income; (v) his housing situation, in particular how permanent it is; (vi) the Member State in which the person is deemed to reside for taxation purposes.

2. Where the consideration of the various criteria based on relevant facts as set out in paragraph 1 does not lead to agreement between the institutions concerned, the person’s intention, as it appears from such facts and circumstances, especially the reasons that

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led the person to move, shall be considered to be decisive for establishing that person’s actual place of residence. Article 12 Aggregation of periods 1. For the purposes of applying Article 6 of the basic Regulation, the competent institution shall contact the institutions of the Member States to whose legislation the person concerned has also been subject in order to determine all the periods completed under their legislation.

2. The respective periods of insurance, employment, self-employment or residence completed under the legislation of a Member State shall be added to those completed under the legislation of any other Member State, insofar as necessary for the purposes of applying Article 6 of the basic Regulation, provided that these periods do not overlap.

3. Where a period of insurance or residence which is completed in accordance with compulsory insurance under the legislation of a Member State coincides with a period of insurance completed on the basis of voluntary insurance or continued optional insurance under the legislation of another Member State, only the period completed on the basis of compulsory insurance shall be taken into account.

4. Where a period of insurance or residence other than an equivalent period completed under the legislation of a Member State coincides with an equivalent period on the basis of the legislation of another Member State, only the period other than an equivalent period shall be taken into account.

5. Any period regarded as equivalent under the legislation of two or more Member States shall be taken into account only by the institution of the Member State to whose legislation the person concerned was last compulsorily subject before that period. In the event that the person concerned was not compulsorily subject to the legislation of a Member State before that period, the latter shall be taken into account by the institution of the Member State to whose legislation the person concerned was compulsorily subject for the first time after that period.

6. In the event that the time in which certain periods of insurance or residence were completed under the legislation of a Member State cannot be determined precisely, it shall be presumed that these periods do not overlap with periods of insurance or residence completed under the legislation of another Member State, and account shall be taken thereof, where advantageous to the person concerned, insofar as they can reasonably be taken into consideration. [NAME] v Secretary of State for Work and Pensions Case (C-503/09) ECLI:[NAME]:C:2011:500 16. This case concerned the residence and presence conditions for an award of incapacity benefit in youth to a claimant who lived with her parents in Spain. One of the conditions was that the claimant had been present in Great Britain for not less than 26 weeks in the previous 52 weeks. [ADDRESS] of Justice of the [NAME] decided that it was not compatible with [NAME] law, as the condition deterred the claimant’s freedom of movement. Its analysis led to the introduction of the genuine and sufficient link for disability living allowance and attendance allowance:

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85. Legislation, such as that at issue in the main proceedings, which makes acquisition of the right to short-term incapacity benefit in youth subject to a condition of past presence is likely, by its very nature, to deter claimants such as the appellant from exercising their right to freedom of movement and residence by leaving the Member State of which they are nationals to take up residence in another Member State. Indeed, while claimants who have not made use of the opportunities offered by the Treaty in relation to freedom of movement and residence can easily satisfy the above-mentioned condition, that is not the case for claimants who have taken advantage of them. It is actually very probable that the latter, because they have taken up residence in another Member State, do not satisfy that condition.

86. Such national legislation, which disadvantages some nationals of a Member State simply because they have exercised their freedom to move and to reside in another Member State, amounts to a restriction on the freedoms conferred by Article 21(1) [NAME] on every citizen of the Union (see [NAME], paragraph 35; Pusa, paragraph 20; [NAME], paragraph 39; and [NAME], paragraph 73).

87. Such a restriction can be justified, under [NAME] law, only if it is based on objective considerations independent of the nationality of the persons concerned and is proportionate to the legitimate objective of the national provisions (see [NAME], paragraph 40; [NAME] and [NAME], paragraph 33; [NAME], paragraph 37; and [NAME], paragraph 74).

88. The United Kingdom Government submits in that regard that there are objective justifications permitting acquisition of the right to short-term incapacity benefit in youth to be made subject to a condition of past presence in the [NAME]. It submits that the national legislation is intended to guarantee, first, the existence of a continuous effective link between that Member State and the recipient of the benefit and, second, the financial balance of the [NAME]. 89. [ADDRESS] has already held that it is legitimate for the [NAME] to wish to ensure that there is a genuine link between a claimant to a benefit and the [NAME] (see, to that effect, [NAME] v [NAME].Case C-224/98, paragraph 38, and Case C-138/02 [NAME] [2004] ECR I-2703, paragraph 67), as well as to guarantee the financial balance of a [NAME] (see, to that effect, [NAME] v Union des caisses de maladie Case C-158/96, paragraph 41, and Petersen Helga Petersen and Peter Petersen v Finanzamt Ludwigshafen ( C-544/11; [NAME]:C:2013:124) paragraph 57).

90. It follows that the objectives of national legislation such as that at issue in the main proceedings which seek to establish a genuine link between a claimant to short- term incapacity benefit in youth and the [NAME] and to preserve the financial balance of the [NAME], constitute, in principle, legitimate objectives capable of justifying restrictions on the rights of freedom of movement and residence under Article 21 [NAME].

91. The United Kingdom Government argues, further, that the condition of past presence in the [NAME] is proportionate in the light of the objective pursued, since it requires only a short period of presence of 26 weeks in total. In addition, the claimant has to satisfy that condition only on the date on which the claim is made. Moreover, in that government’s submission, there is no other means which

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enables both the existence of a sufficient link with the United Kingdom to be established and the integrity of the [NAME] to be protected.

92. In circumstances such as those in the main proceedings, where acquisition of entitlement to a non-contributory benefit is not subject to conditions as regards contributions, it can be considered to be legitimate for a Member State to award such benefit only after it has been established that there was a genuine link between the claimant and the competent State.

93. The existence of such a link could effectively be established, in particular, by a finding that the person in question had been, for a reasonable period, actually present in that Member State.

94. In this case, the condition of past presence in the [NAME] means, under the national legislation, that, to be eligible for short-term incapacity benefit in youth, the claimant must have been present in Great Britain for a period of, or for periods amounting in aggregate to, not less than 26 weeks in the 52 weeks immediately preceding the date of the claim. In addition, under Article 16(6) of the SSIBR [regulation 16(6) of the [NAME] (Incapacity Benefit) Regulations 1994 (SI No 2946)], as the United Kingdom Government argues, it suffices if that condition of past presence is satisfied on the date on which the claim is made.

95. While the rules for applying that condition do not, in themselves, appear to be unreasonable, none the less that condition is too exclusive in nature. Indeed, by requiring specific periods of past presence in the [NAME], the condition of past presence unduly favours an element which is not necessarily representative of the real and effective degree of connection between the claimant to short-term incapacity benefit in youth and that Member State, to the exclusion of all other representative elements. It therefore goes beyond what is necessary to attain the objective pursued (see, by analogy, [NAME], paragraph 39).

96. In fact, [it] is not inconceivable that the existence of such a connection could be established from other representative elements.

97. Such elements must be sought, in the first place, in the relationship between the claimant and the [NAME] of the [NAME]. In that regard, the decision making the reference states that the appellant is already entitled, under United Kingdom legislation, to disability living allowance.

98. Moreover, it is apparent from that decision that the appellant is credited with United Kingdom national insurance contributions which are added each week to her national insurance account.

99. It follows that [NAME] is already, in a certain way, connected to the [NAME] in question. 100. Other elements capable of demonstrating the existence of a genuine link between the claimant and the [NAME] may, secondly, be apparent from the claimant’s family circumstances. In the case in the main proceedings, it is common ground that [NAME], who is incapable of acting on her own behalf because of her disability, remains dependent on her parents who care for her and represent her in her relations with the outside world. [NAME]’s mother and her father receive retirement pensions under United Kingdom legislation. In addition, her father worked in

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that Member State before retiring, whereas her mother previously received, also under United Kingdom legislation, incapacity benefit. 101. Finally, it is common ground that the appellant, a United Kingdom national, has passed a significant part of her life in the United Kingdom. 102. The elements mentioned in paragraphs 97 to 101 of the present judgment appear to be capable of demonstrating the existence of a genuine and sufficient connection between the appellant and the [NAME]. 103. The foregoing considerations also apply with regard to the objective of guaranteeing the financial balance of the [NAME]. In fact, the necessity of establishing a genuine and sufficient connection between the claimant and the [NAME] enables that State to satisfy itself that the economic cost of paying the benefit at issue in the main proceedings does not become unreasonable. 104. Consequently, national legislation, such as that at issue in the main proceedings, which makes acquisition of the right to short-term incapacity benefit in youth subject to a condition of past presence in the [NAME] to the exclusion of any other element enabling the existence of a genuine link between the claimant and that Member State to be established, goes beyond what is necessary to attain the objective pursued and therefore amounts to an unjustified restriction on the freedoms guaranteed by Article 21(1) [NAME] for every citizen of the Union.

17. The relevant part of the Court’s ruling was: Article 21(1) [NAME] precludes a Member State from making the award of such a benefit subject: ⎯ to a condition of past presence of the claimant in that State to the exclusion of any other element enabling the existence of a genuine link between the claimant and that Member State to be established, or ⎯ to a condition of presence of the claimant in that State on the date on which the claim is made. E. Article 6 does not allow aggregation of mere residence 18. I have come to this decision for this reason. As [NAME] argued, [NAME] lays down a general principle that a Member State may insist on a claimant demonstrating a genuine and sufficient link with that State as a condition for awarding benefit. If a claimant’s residence in another State could be aggregated under Article 6, it could render the Court’s decision nugatory and would do so in these cases. [ADDRESS] derived that principle from Article 21(1) [NAME], and so it operates independently of Regulation 1408/71 (with which the Court was otherwise concerned) and of Regulation 883/2004. Article 6 cannot be interpreted in a way that is inconsistent with [NAME].

19. This argument was the subject of submissions after the hearing. [NAME] argued that the supposed difficulty does not arise as a matter of [NAME] law. It only arises as a result of the structure of the domestic legislation. [NAME] replied that [NAME] accepted that it was permissible to have a past presence test, provided it was supplemented by a genuine and sufficient link test for [NAME]. [NAME]’s argument does not undermine the ground on which I have made my decision. All States require some kind of connection before awarding benefit. One possibility is an insurance or contribution scheme. The most obvious alternatives are ones based on presence or residence. On [NAME]’s argument, Article

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6 would render any such scheme almost completely irrelevant. It is not possible to magic away the domestic conditions of entitlement as irrelevant, because the use of presence or residence conditions form the background against which the Court reasoned in [NAME]. One way to read the judgment is that residence or presence together with other elements form a composite test for attaining the objective of requiring a connection with the State in question. [ADDRESS] accepted at paragraph 93 that a reasonable period of presence could provide a link, but went on to say that it could not be used exclusively in the case of [NAME]. It said at paragraph 96 that the link ‘could be established from other representative elements’ and went on to apply that approach to the facts of the case. If Article 6 is allowed to operate in a way that will satisfy the presence test without reference to any other element that will bypass the role that other elements play under [NAME] and by virtue of Article 21(1).

20. I refer to the other arguments put by [NAME]. They are, mostly, valid arguments and provide an alternative basis for the decision I have reached. 21. [NAME] argued that these general principles applied: • Regulation 883/2004 was concerned with coordination, not harmonisation. • Each State was entitled to decide for itself what [NAME] provision to make. • There was no guarantee that the exercise of freedom movement between member States would be neutral in its effects.

• [ADDRESS] of Justice of the [NAME] had recognised that it was legitimate for States to protect their public finances and to prevent the economic cost of the benefit bill becoming unreasonable. 22. [NAME]’s approach to the aggregation issue was this: • Mere residence could not be aggregated, only residence that equates to insurance in a Member State.

• The purpose of Article 6 was to preserve accrued rights. • Its effect was not to aggregate periods of residence, but to aggregate periods of residence ‘completed under the legislation of any other Member State’.

• ‘Period of residence’ was defined by Article 1(v) as meaning ‘periods so defined and recognised by the legislation under which they were completed’.

• ‘Residence’ was defined by Article 1(j) as meaning habitual residence, but that did not apply to ‘period of residence’. I am not sure that this is right, but I do not have to decide it.

• Neither claimant had completed any period of residence under relevant legislation in any other Member State.

• Asked whether any Member State had a residence-based insurance system, she said that this provision took account of the position in Sweden and Iceland. That is a matter of evidence and there is no evidence to that effect on either file. I was not referred to any preparatory material relevant to the Regulation.

[2019] AACR 21 ([NAME] v [NAME]) ([NAME] v [NAME])

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• Article 12 of Regulation 987/2009 provided for one State to obtain information from another. The Secretary of State did not go behind the information provided. I do not need to decide if that is the correct approach.

• Article 12 would not be necessary if mere residence could be aggregated as claimants themselves could easily provide evidence of residence.

• Annex XI of Regulation 883/2004 was consistent with Article 6. If it was not, it had to give way to the Article, which is the operative provision in the Regulation. 23. [NAME] essentially relied on the wording of Article 6 read together with Annex XI.

24. Broadly, I accept [NAME]’s argument. It produces an interpretation that is consistent with the right of States to insist on a genuine and sufficient link as explained in [NAME]. It makes sense of the language of Article 6, which refers to periods of residence under the legislation of another State. How does someone accumulate residence under legislation that is not insurance- or contribution-based? There are plenty of examples of provisions that require a claimant to be ordinarily or habitually residence in a country in order to qualify for an award. But that hardly fits the language of the definition in Article 1(v). Just because a person has to be habitually resident to qualify does not mean that this leads to a period of residence being defined, recognised or completed. Indeed, the [NAME] concept of habitual residence (unlike the domestic concept of the same name) allows a person to establish habitual residence so quickly, as the Secretary of State has conceded occurred in these cases, that it is difficult to describe the time involved as a period.

25. As to paragraph 2 of Annex XI, this is consistent with [NAME]’s argument, although not for the reasons she gave. What the paragraph does is to take account of the past presence test in domestic legislation. It provides for periods of residence in another State to count towards satisfying the presence test. This is a necessary supplement to Article 6, which only provides for aggregation of residence abroad with residence here. It does not permit aggregation of residence abroad with presence here. On its own, Article 6 would not assist a claimant who had completed periods of residence under the legislation of another State. The flaw in [NAME]’s argument is to assume that the purpose of Annex XI is to make clear that disability living allowance and attendance allowance are within Article 6. That is not why the Annex is relevant. What it does is to adjust the application of that Article, when it is satisfied, in order that it can apply to the past presence test.

26. As to the decision of the Court of Appeal in Secretary of State for Work and Pensions v Garland [2014] EWCA Civ 1550, the reasoning in that case was concerned with Regulation (EEC) 1408/71. I prefer to rely on the terms of Regulation 883/2004 rather than read across from the similar, but different, provisions of the earlier Regulation. 27. [NAME] showed me the forms that are now completed in order to implement Article 12 of Regulation 987/2009. These forms do not assist me with the interpretation of the Article. They assume what [NAME] sought to prove – that Article 6 only applies to contributory benefits. But they would be needed for those benefits anyway, even if that Article were not so limited. I have not relied on the forms in coming to my decision on this issue.

[2019] AACR 21 ([NAME] v [NAME]) ([NAME] v [NAME])

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[NAME] permits a link with the member State not with its [NAME]

28. I accept [NAME]’s argument on this issue.

29. For both attendance allowance and disability living allowance, the regulations require a claimant to ‘demonstrate a genuine and sufficient link to the [NAME].’ Those final words are not authorised by [NAME]. [ADDRESS] repeatedly referred to a connection with the Member State without any addition of the words ‘[NAME]’. See paragraphs 90, 92, 95, 100 and 102, and the terms of the Court’s ruling. [ADDRESS] did refer to connection with the [NAME] in paragraph 97, but only with the qualification ‘in the first place’. And having dealt with links with the [NAME] in paragraphs 97-99, the opening words of paragraph 100 refer to ‘Other elements capable of demonstrating the existence of a genuine link between the claimant and the Member State’, which can only mean links other than with the [NAME]. Finally, the Court mentioned in paragraph 101 that the claimant had spent a significant part of her life in the United Kingdom, which of itself would not be relevant to show a link to the [NAME]. It is a small point, but I note that my analysis coincides with the way that the Court of Appeal summarised the effect of [NAME] in Garland at [23], where it refers to a link to the Member State, not to its [NAME]. 30. [NAME] relied on the references by the Court to [NAME] benefits. She is right that the Court referred in detail to the [NAME] position of the claimant and her parents. But, as I pointed out at the hearing, that is because that was the information that I had given the Court in the reference. [ADDRESS] does not, when dealing with a reference, undertake an investigation. It relies on the information provided by the referring court. I had included details of the [NAME] benefits because they were potentially relevant to some of the questions that I had referred, which in the event the Court did not need to answer. I had not anticipated the Court’s answer, so I had not undertaken a wider investigation. The reference to the family’s benefit history was relevant as a matter of fact in applying the genuine and sufficient link test. [ADDRESS] did not use it to show that benefits were the only relevant connection.

31. It follows that the proper approach for decision-makers and the First-tier Tribunal is to apply [NAME] and to disregard the words ‘[NAME]’ in the legislation. I note that, despite the language of the legislation, the guidance to decision-makers on genuine and sufficient link that [NAME] provided states in paragraph 071787 that they ‘need to make a balanced judgement based on all the facts of the case. Among the relevant elements that may be considered are …’ The factors that follow are closely based on [NAME]. That guidance, if applied strictly according to its terms, allows a decision-maker to comply with [NAME] rather than with the terms of the legislation. G. Presence as a link 32. I accept [NAME]’s argument that presence alone may demonstrate a genuine and sufficient link. The longer the period of past presence required in the legislation, the more likely that a case might occur in which a claimant has spent a relatively long period in a country. The past period required in [NAME] was 26 weeks, which the Court described at paragraph 95 as ‘not … unreasonable’. The period required for disability living allowance and attendance allowance is four times as long. There may be an argument that that such a period would be unreasonable. That does not arise here, because both claimants had only just arrived in this country at the time of their claims. It is also doubtful whether that argument is the correct approach. It only arises because the domestic legislation treats the past presence

[2019] AACR 21 ([NAME] v [NAME]) ([NAME] v [NAME])

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period and the genuine and sufficient link as separate. That is not how [NAME] analysed it. [ADDRESS] said that States were entitled to require a link, that presence for a reasonable period would establish a link, but that other elements had to be considered to prevent an impediment to the freedom of movement. In other words, presence was merely one way of establishing the necessary connection. It might be sufficient on its own (see paragraph 93 of the judgment) or as one of a number of elements (see paragraph 101). The domestic legislation can be reconciled with [NAME] in its application if decision-makers and tribunals attach greater significance to presence in this country the closer the period comes to satisfying the past presence test. H. Habitual residence in the genuine and sufficient link test 33. I asked the Secretary of State about the requirement that the claimant be habitually resident in Great Britain. Does the Secretary of State apply the domestic approach to habitual residence or the [NAME] approach? [NAME] told me that decision-makers applied the [NAME] approach as this was an [NAME] context. She provided a copy of the guidance to that effect. This is not an issue that arises for decision, but I record it as (so far as I know) it is not generally known that this is the test applied. Article 11 of Regulation 987/2009 sets out the approach to be applied for Regulation 883/2004.

I. There is no need for a reference 34. I consider that the legal position is clear without the need for a reference to the Court of Justice of the [NAME]. Which is not to say that the issues are not difficult, which is why I have said that I will give permission to appeal to the Court of Appeal if an application is made. J. Disposal - [NAME]

35. The tribunal was right on the aggregation issue by refusing to apply Article 6 and Annex XI. In his submissions after the hearing, [NAME] argued that [NAME] had been ordinarily resident in Ireland in order to be in receipt of domiciliary care allowance and his mother had been habitually resident there in order to be in receipt of carer’s allowance. As foreign law, those matters have to be proved as fact. I accept [NAME]’s submissions as providing that evidence. I reject his argument and rely on one of the arguments put in reply by [NAME]. She pointed out that [NAME] had not shown that the requirements for Article 6 were satisfied. In particular, he appeared to have overlooked the definition of ‘period of residence’ in Article 1(v). This has the effect that the periods taken into aggregation must be ones defined or recognised by the legislation. Nothing I have seen shows that the Irish legislation defines or recognises such periods. All that he has shown is that ordinary or habitual residence was a condition of entitlement. That is not the same thing.

36. The tribunal misdirected itself on the genuine and sufficient link issue by limiting its consideration to links with this country’s [NAME]. That raises the issue whether the mistake was material. I have considered [NAME]’s case for [NAME] but decided that it does not show a sufficient link.

37. This was the case he put in his amended grounds of appeal: The Appellant may rely upon his genuine and sufficient link to the United Kingdom at date of decision: a dependence upon his mother, his mother’s citizenship, her past residence in England and her entitlement to [NAME] benefits in her own right

[2019] AACR 21 ([NAME] v [NAME]) ([NAME] v [NAME])

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under United Kingdom legislation. Also relevant is that his mother returned to the country of which she is a citizen so as to avoid domestic violence, thereby seeking refuge in her own country.

38. I can see no relevance in the fact that the claimant and his mother came to this country to escape domestic violence. It explains why they came here, but it does not show or contribute to showing a sufficient link. I was referred to PB v Secretary of State for Work and Pensions [2016] UKUT 0280 (AAC), in which Upper Tribunal Judge Wright explained why he had accepted the Secretary of State’s concession that the claimant had established a sufficient link through his sister. On the basis of the judge’s reasoning, albeit only set out to explain why he accepted the concession, it is possible to establish a link through someone else. That is consistent with [NAME] where the Court took account not only of the claimant’s links, but also of her parents’. In the case of a child, it is difficult to see how a link could otherwise be established. However, the connections identified with this country essentially rely on inheritance. [NAME] himself has no connection and his mother’s connection has been relatively minor, certainly throughout his life. My conclusion is that, on the evidence, the tribunal could not properly have come to a different decision even if it had directed itself correctly on the law.

39. A decision-maker and a tribunal should always consider, when appropriate, the possibility of an advance award under regulation 13A of the [NAME] (Claims and Payments) Regulations 1987. That regulation cannot assist [NAME]. It only applies if a claimant will qualify within 3 months provided that there is no change of circumstances. Therein lies the problem: the position for [NAME] is the reverse of when regulation 13A applies. He cannot qualify unless and until there is a change of circumstances – either through presence or through a genuine and sufficient link.

40. That is why I have dismissed [NAME]’s appeal. K. Disposal – [NAME]

41. The tribunal misdirected itself in law by applying Article 6. The claimant did not satisfy the past presence test. On the evidence, the tribunal could not properly have found that that her connections with this country were sufficient to show a sufficient link. I have re-made the decision to that effect.

42. For the record, some of the evidence in this case was in [NAME]. It was not translated. I told the parties that if either wished to rely on this, it would have to be translated. Neither provided a translation, so I have not been able to rely on it.

43. As to an advance award, [NAME] cannot benefit from this for the same reason as [NAME].

[2019] AACR 21 ([NAME] v [NAME])

1

[2019] AACR 21 ([NAME] & [NAME] v The Secretary of State for Work and Pensions) [2016] EWCA Civ 272

(Sir Terence Etherton MR, McCombe LJ, Hadden-Cave LJ) C3/2017/1052 C3/2017/1056 C3/2017/1058 7 March 2019 [NAME] - [NAME] allowance and disability living allowance - “genuine and sufficient link to the [NAME]”

[ADDRESS] of Appeal (Civil Division) considered whether the Upper Tribunal (AAC) had erred in concluding that [NAME] and [NAME] could not demonstrate at the material time that they had a “genuine and sufficient” link with the UK because it failed to take proper account of all the relevant circumstances in each case, in particular [NAME]’s intention to settle in the UK to be cared for by her daughter and [NAME] and his mother’s reasons for coming to the UK and their links to the UK. Whether presence in the UK could by itself demonstrate, demonstrate a “genuine and sufficient link” to the UK. [NAME] applied for disability living allowance, on the basis that he satisfied the conditions set out in the [NAME] (Disability Living Allowance) Regulations 1991 as amended. [NAME] applied for attendance allowance, on the basis that she satisfied the conditions set out in the [NAME] (Attendance Allowance) Regulations 1991, as amended. Held, allowing the appeals and dismissing the Secretary of State’s cross-appeal, that 1. Notwithstanding the right of [NAME] to freedom of movement within the [NAME], member states might specify proportionate conditions limiting the right of nationals of other member states to social benefits in the [NAME] in order reasonably to limit the financial burden on its [NAME]. Such a condition might be a requirement that the applicant had to demonstrate a sufficient link or connection with the [NAME] and where there was a condition requiring such a link or connection, the [NAME] had to take into account all relevant evidence as to whether it had been established. Although the condition of a genuine and sufficient link to the United Kingdom would be an appropriate and proportionate condition, in imposing the condition of a “genuine and sufficient link to the [NAME]”, regulation 2A(1)(c) of the [NAME] (Disability Living Allowance) Regulations 1991 and regulation 2A(1)(c) of the [NAME] (Attendance Allowance) Regulations 1991 were too narrow and prescriptive to be lawful and were, therefore, to be interpreted and applied as if they required a genuine and sufficient link to the United Kingdom;

2. In assessing whether a genuine and sufficient link to the United Kingdom had been established, objective evidence of the link was plainly critical but evidence of the applicant’s motives, intentions and expectations was not to be ignored if it was relevant to proof of the link and was convincing and 3. In each case the Upper Tribunal had erred in failing to take into account the claimant’s motives, intentions and expectations, which had been relevant to the question of whether the claimant had a genuine and sufficient link to the United Kingdom; that, on the facts, both claimants had such a genuine and sufficient link at the time of their claims and certainly at the time their claims were rejected.

DECISION OF THE COURT OF APPEAL

[NAME] (instructed by [COMPANY]) appeared for the first appellant

[NAME] (instructed by [COMPANY]) appeared for the second appellant

[NAME] and [NAME] (instructed by the Government Legal Department) for the Respondent

[2019] AACR 21 ([NAME] v [NAME])

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Sir Terence Etherton MR, Lord Justice McCombe and Lord Justice Haddon-Cave:

Introduction

1. This appeal concerns entitlement to non-contributory [NAME] benefits by claimants recently arrived in the UK from another Member State of the [NAME] (“the [NAME]”).

2. Shortly after their respective arrivals in the UK from the [NAME] (“[NAME]”), an Irish national and a minor, claimed disability living allowance (“[NAME]”) and [NAME] (“[NAME]”), a [NAME], claimed attendance allowance (“[NAME]”). The Secretary of State for Work and Pensions (“the [NAME]”) refused both claims.

3. The appellants appeal the decision dated 12 December 2016 of Judge Edward Jacobs, sitting as the Upper Tribunal (Administrative Appeals Chamber) (“the [NAME]”), that neither [NAME] nor [NAME] was entitled to the benefits claimed.

The Facts

4. [NAME] was born in [DATE]. She left Somalia in 1998 for Germany and resided in Germany for 14 years where she received means-tested benefits and acquired [NAME] citizenship. Judge Jacobs, sitting as the First-tier Tribunal (Social Entitlement Chamber) (“the [NAME]”), found that she came to the UK on 29 May 2013 (then aged 65) with a settled intention of living in the UK. The deterioration in her health meant that she could no longer live on her own and required the care of her daughter in the UK. She gave up her home and family in Germany and had no income from Germany. The [NAME] was satisfied that she became habitually resident in the UK. She made a claim for [NAME] with effect from 19 June 2013. On 19 November 2013¸ the [NAME] refused [NAME]’s claim for [NAME].

5. [NAME] was born on [DATE] and is an Irish national. He lived in Ireland until 26 June 2013, apart from a brief period between 2003 to 2004 when he moved temporarily to the UK with his mother. [NAME]’s mother, who is a [NAME] national, moved to Ireland when she was 12 years old, briefly returning to the UK in 1998. Judge M [NAME], sitting as the [NAME], found that she had last worked in the UK in 1998, and had not paid national insurance contributions or tax here. She did not work in Ireland. She claimed domiciliary care allowance for her son and carer’s allowance for herself from the Irish welfare system, following her son’s diagnosis in 2011 of Asperger’s syndrome. She left Ireland following domestic violence. Two days after his arrival in the UK, on 28 June 2013, when [NAME] was 12 years of age, [NAME] made an application for [NAME]. On 3 September 2013, the SSHD refused [NAME]’s application for [NAME].

The legal framework

Domestic legislation

Disability living allowance ([NAME]) - legislation

6. [NAME] is governed by sections 71 to 76 of the [NAME] Act 1992 (“SSCBA”). Section 71(6) provides:

“(6) A person shall not be entitled to a disability living allowance unless he satisfies prescribed conditions as to residence and presence in Great Britain.”

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7. Those conditions are prescribed by the [NAME] (Disability Living Allowance) Regulations 1991 (SI No 2890) (“the [NAME]”) which, so far as relevant, are as follows:

“2 Conditions as to residence and presence in Great Britain

(1) Subject to the following provisions of this regulation and regulations 2A, 2B and 2C, the prescribed conditions for the purposes of section 71(6) of the Act as to residence and presence in Great Britain in relation to any person on any day shall be that– (a) on that day– (i) he is habitually resident in the United Kingdom, the Republic of Ireland, the Isle of Man or the Channel Islands; and (ib)…, and (ii) he is present in Great Britain; and (iii) he has been present in Great Britain for a period of, or for periods amounting in the aggregate to, not less than 104 weeks in the 156 weeks immediately preceding that day.”

“2A Persons residing in Great Britain to whom a relevant [NAME] applies

(1) Regulation 2(1)(a)(iii) shall not apply where on any day– (a) the person is habitually resident in Great Britain; (b) a relevant [NAME] applies; and (c) the person can demonstrate a genuine and sufficient link to the [NAME]. (2) For the purpose of paragraph (1)(b) … , ‘relevant [NAME]’ has the meaning given by section 84(2) of the Welfare Reform Act 2012.”

8. Section 84(2) of the Welfare Reform Act 2012 provides:

“82 No entitlement to disability living allowance where UK is not competent state … (2) Each of the following is a ‘relevant [NAME]’ for the purposes of this section- … (b) Regulation…. 883/2004 …”

[NAME]- summary

9. Pursuant to section 71(6) of the SSCBA, a person is not entitled to [NAME] if, among other things, he or she does not satisfy prescribed conditions as to residence and presence in Great Britain. Those conditions are prescribed by regulations 2 and 2A of the [NAME]. So far as is material to this appeal, the applicable conditions are as follows:

i) habitual residence in the UK, the Republic of Ireland, the Isle of Man or the Channel Islands;

ii) presence in Great Britain; and

[2019] AACR 21 ([NAME] v [NAME])

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iii) past presence in Great Britain for a period of, or for periods amounting in the aggregate to, not less than 104 weeks in the 156 weeks immediately preceding that day (“the “past presence test”).

10. The “past presence test” does not apply where, on any day (regulation 2A):

i) a person is habitually resident in Great Britain;

ii) Regulation (EC) No. 883/2004 of the European Parliament and the Council of 29 April 2004 on the co-ordination of [NAME] systems (“Regulation 883/2004”) applies; and

iii) the person can demonstrate a genuine and sufficient link to the UK’s [NAME].

11. Regulation 2A was introduced by the [NAME] (Disability Living Allowance, Attendance Allowance and Carer’s Allowance) (Amendment) Regulations 2013 (SI 2013/389), following the decision of the Court of Justice of the [NAME] (“the ECJ”) in Case C-503/09 [NAME] v [NAME] [2012] 1 CMLR 337 [2012] AACR 8 (see further below). Whether or not a person is habitually resident is a question of fact.

[NAME] - legislation

12. [NAME] is governed by sections 64 to 67 of the SSCBA. Section 64(1) provides, so far as relevant:

“(1) A person shall be entitled to an attendance allowance if … he satisfies … prescribed conditions as to residence and presence in Great Britain.”

13. Those conditions are prescribed by the [NAME] (Attendance Allowance) Regulations 1991 SI 1991/2740 (“the [NAME])):

“2 Conditions as to residence and presence in Great Britain (1) Subject to the following provisions of this regulation and regulations 2A and 2B and 2C, the prescribed conditions for the purposes of section 35(1) of the Act as to residence and presence in Great Britain in relation to any person on any day shall be that– (a) on that day– (i) he is habitually resident in the United Kingdom, the Republic of Ireland, the Isle of Man or the Channel Islands; and (ib) …, and (ii) he is present in Great Britain; and (iii) he has been present in Great Britain for a period of, or for periods amounting in the aggregate to, not less than 104 weeks in the 156 weeks immediately preceding that day.”

“2A Persons residing in Great Britain to whom a relevant [NAME] applies (1) Regulation 2(1)(a)(iii) shall not apply where on any day– (a) the person is habitually resident in Great Britain; (b) a relevant [NAME] applies; and (c) the person can demonstrate a genuine and sufficient link to the [NAME]. (2) For the purpose of paragraph (1)(b) …,‘relevant [NAME]’ has the meaning given by section 84(2) of the Welfare Reform Act 2012.”

[2019] AACR 21 ([NAME] v [NAME])

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14. Section 84(2) of the Welfare Reform Act 2012 is set out above.

[NAME]- summary

15. Pursuant to section 64(1) of the SSCBA, a person is not entitled to [NAME] if, among other things, he does not satisfy prescribed conditions as to residence and presence in Great Britain.

16. There is no material difference between the relevant conditions applicable to [NAME] and those applicable to [NAME] in the [NAME] (see regulations 2 and 2A of the [NAME]).

[NAME]

17. The [NAME] published guidance for decision-makers on the genuine and sufficient link test, permitting a broad range of factors to be taken into account when determining whether a person has a genuine and sufficient link with the UK’s [NAME]. The guidance states that decision-makers will need “to make a balanced judgment based on all the facts of the case” and that the relevant elements that may be considered are:

i) personal factors, eg whether the claimant is receiving a UK benefit;

ii) periods of residence or work in the UK, eg whether the claimant has spent a significant part of their life in the UK, or whether the claimant has worked and paid national insurance contributions here;

iii)if the claimant is a family member within the meaning of regulation 883/2004 (a spouse, child under 18 or dependent child over 18), family factors.

European law

Treaty on the Functioning of the [NAME] ([NAME])

18. Article 21(1) [NAME] provides:

“21(1). Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.”

19. Article 48 of the [NAME] provides, so far as relevant:

“48. The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure, adopt such measures in the field of [NAME] as are necessary to provide freedom of movement for workers; to this end, they shall make arrangements to secure for employed and self- employed migrant workers and their dependants: (a)…; (b) payment of benefits to persons resident in the territories of Member States.”

Regulation 883/2004

20. Regulation 883/2004 provides as follows, so far as relevant:

[2019] AACR 21 ([NAME] v [NAME])

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Article 1 “Definitions For the purposes of this Regulation: … (j) ‘residence’ means the place where a person habitually resides; …

Article 2 Persons covered

1. This Regulation shall apply to nationals of a Member State, stateless persons and [NAME] residing in a Member State who are or have been subject to the legislation of one of more Member States, as well as to the members of their families and to their survivors. … Article 3 Matters covered

1. This Regulation shall apply to all legislation covering the following branches of [NAME]:

(a) sickness benefits; …

Article 4 Equality of treatment

Unless otherwise provided for by this Regulation, persons to whom this Regulation applies shall enjoy the same benefits and be subject to the same obligations under the legislation of any Member State as the nationals thereof.”

[NAME] law - Free Movement

21. The right of [NAME] to reside in other Member States is provided for by Article 21 [NAME]. It is not an unconditional right: it is subject to the limitations and conditions in the Treaty and the measures adopted to implement it, in particular Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of [NAME] of the Union and their family members to move and reside freely within the territory of the Member States (“Directive 2004/38”).

22. Under the scheme established by Directive 2004/38, there are different rights and conditions for residence in another Member State for up to three months, for more than three months and for more than five years.

23. Recital (1) and Article 7(1)(b) have been of particular significance in the jurisprudence relevant to these appeals. Recital (10) is as follows:

“(10) Persons exercising their rights of residence should not … become an unreasonable burden on the [NAME] of the [NAME] during an initial period of residence. Therefore, the right of residence for [NAME] and their family members for periods in excess of three months should be subject to conditions.”

24. Article 7(1)(b) provides as follows:

[2019] AACR 21 ([NAME] v [NAME])

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“1. [NAME] shall have the right of residence on the territory of another Member State for a period of longer than three months if they:

(a) …

(b) have sufficient resources for themselves and their family members not to become a burden on the [NAME] of the [NAME] during their period of residence and have comprehensive sickness insurance cover in the [NAME]: or …”

Claiming benefits in a [NAME] - summary

25. There are two main types of benefit under [NAME] law:

i) social assistance benefits, which in the UK includes means-tested benefits such as Income Support.

ii) [NAME] benefits, which are subject to special [NAME] law co-ordination and conflict of law rules in regulation 883/2004. [NAME] benefits may be contributory or non-contributory. It is common ground that [NAME] and [NAME] are non- contributory [NAME] benefits.

26. In relation to both social assistance and [NAME] benefits, Member States are entitled to set entitlement conditions which are designed to ensure that benefit claimants have a genuine link with that Member State.

The Tribunal decisions

[NAME] – decisions

27. By its decision dated 8 August 2014 the [NAME] allowed [NAME]’s appeal from the decision of the [NAME], on the ground that [NAME] could aggregate her residence in Germany to her residence in the UK pursuant to Article 6 of regulation 883/2004, so as to satisfy the past presence test.

28. On 25 September 2015, the [NAME] rejected [NAME]’s appeal from the decision of the [NAME], on the ground that his residence in Ireland could not be aggregated to his residence in the UK, so as to enable him to meet the past presence test. The [NAME] also found as a fact that neither [NAME] nor his mother had a “genuine and sufficient link” to the UK’s [NAME] so as to entitle [NAME] to claim [NAME].

[NAME] decisions

29. On 10 March 2016, the [NAME] joined [NAME]’s case and [NAME]’s case, since both cases raised similar issues in relation to the application of the aggregation rule in Article 6 of regulation 883/2004.

30. On 12 December 2016, the [NAME] published its decision that neither [NAME] nor [NAME] was entitled to the benefits claimed. The [NAME] held against [NAME] and [NAME] on four main bases:

i) First, the [NAME] held that [NAME] and [NAME] were not entitled under regulation 883/2004 to aggregate their residence overseas with their residence in the UK to meet the past presence test (such as to entitle them to benefit under domestic law) on the basis that “mere” residence cannot be aggregated.

[2019] AACR 21 ([NAME] v [NAME])

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ii) Second, the [NAME] held that neither [NAME] nor [NAME] could demonstrate a genuine and sufficient link to the UK under regulation 2A of the [NAME] and regulation 2A of the [NAME] respectively, such as to entitle them to the benefits claimed.

iii) Third, the [NAME] held (at [32]) that “presence alone may demonstrate a genuine and sufficient link”; but found on the facts that neither [NAME] nor [NAME] demonstrated such a link by mere presence alone.

iv) Fourth, the [NAME] held that neither [NAME] nor [NAME] was entitled to an “advance award” under regulation 13A of the [NAME] (Claims and Payments) Regulations 1987 (“the 1987 Regulations”) because neither could demonstrate qualification within the three month period, absent a change of circumstances.

31. On this appeal, [NAME] and [NAME] challenge the [NAME]’s findings (ii) and (iii) above and [NAME] challenges finding (iv). They have abandoned their appeal in respect of (i).

32. The [NAME] challenges the [NAME]’s statement (in [32] of its decision) that “presence alone may demonstrate a genuine and sufficient link”. The [NAME] also originally challenged the [NAME]’s decision that the requirement of regulation 2A(i)(c) of the [NAME] and the [NAME] that it is necessary to demonstrate a genuine and sufficient link to the UK social system rather than just the UK was contrary to [NAME] law. This challenge has not been pursued.

The issues on appeal

33. The issues before the Court can conveniently be summarised as follows:

i) First issue: whether the [NAME] erred in concluding that [NAME] and [NAME] could not demonstrate that at the material time they had a genuine and sufficient link with the UK in that the [NAME] failed to take proper account of all the relevant circumstances in each case, in particular (1) [NAME]’s intention to settle permanently in the UK in order to be cared for by her daughter and (2) [NAME] and his mother’s reasons for coming to the UK and their links to the UK.

ii) Second issue: whether the [NAME] erred in concluding that [NAME] did not qualify under the “advance award” provisions of regulation 13A of the 1987 Regulations.

iii) Third issue: whether presence in the UK, could, by itself, demonstrate a genuine and sufficient link to the UK.

Discussion

The starting point

34. The starting point is that both [NAME] and [NAME] are nationals of a Member State other than the UK. They fall within regulation 883/2004, which is a “relevant [NAME]” within regulation 2A of the [NAME] and regulation 2A of the [NAME].

35. It is common ground that, at the date of the initial claim of [NAME] for [NAME] and of [NAME] for [NAME], they were both habitually resident in the UK.

36. Provided, therefore, that they can satisfy the “genuine and sufficient link” test in regulation 2A(1)(c), neither [NAME] nor [NAME] was required to satisfy the past presence test in regulation 2(1)(a)(iii) of the [NAME] and the [NAME] respectively.

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The jurisprudence

37. As stated above, regulation 2A of the [NAME] and regulation 2A of the [NAME], with their substitution of the “genuine and sufficient link” test for the past presence test for those within a relevant [NAME] regulation, were introduced following the decision of the ECJ in [NAME]. That case concerned a claim for short-term incapacity benefit in youth pursuant to section 30A(2A) of the SSCBA. By section 30A(2A)(d) of the SSCBA and regulation 16 of the [NAME] (Incapacity Benefit) Regulations 1994, the award of the benefit was conditional upon, among other things, the claimant on the day of the claim (1) being ordinarily resident in Great Britain, (2) being present in Great Britain and (3) having been present in Great Britain for a period of, or for periods amounting in aggregate to, not less than 26 weeks in the 52 weeks immediately preceding that day. That latter condition was, in other words, a past presence condition analogous to regulation 2(1)(a)(iii) of the [NAME] and the [NAME] (although for a considerably shorter period).

38. The claimant in [NAME] was a [NAME] national, who suffered from severe long-term disability. She had moved to Spain with her parents when she was aged 11 and had resided there since then. She had been credited with UK national insurance contributions and received [NAME]. Her parents both received UK retirement pensions. Her mother claimed short- term incapacity benefit in youth from her 16th birthday. The [NAME] rejected the claim on the ground that the claimant was not present in Great Britain on the date of the claim.

39. The [NAME] referred various questions to the ECJ for a preliminary ruling, including the question whether Article 10(1) of Regulation 1408/71 of 14 June 1971, on the application of [NAME] schemes to employed persons, self-employed persons and members of their families moving within the Community, precluded a member state from making the award of an invalidity benefit subject to conditions requiring the claimant’s ordinary residence or presence in that member state.

40. Article 10(1) provided, so far as relevant, as follows:

“Save as otherwise provided in this Regulation, invalidity … cash benefits … acquired under the legislation of one or more member states shall not be subject to any reduction, modification, suspension, withdrawal or confiscation by reason of the fact that the recipient resides in the territory of a member state other than that in which the institution responsible for payment is situated.”

41. The ECJ said that the purpose of Article 10 was to protect the persons concerned against any adverse effects that might arise from the transfer of their residence from one Member State to another. It held, accordingly, that Article 10(1) precluded the acquisition of entitlement to short-term incapacity in youth from being made subject to a condition of ordinary residence in the [NAME].

42. Turning to the past presence condition, the ECJ said (at [77]) that, in exercising their powers to legislate for the conditions for entitlement to benefits, Member States must comply with the law of the [NAME] and, in particular, with [NAME] provisions giving every citizen of the [NAME] the right to move and reside within the territory of the Member States. The court pointed out (at [78]) that Article 20 [NAME] conferred on every person holding the nationality of a Member State the status of citizen of the Union, and (at [80]) that the status of citizen of the Union enables those among such nationals who find themselves in the same situation to receive, as regards the material scope of the Treaty, the same treatment in law irrespective of their nationality, subject to such exceptions as are provided for in that regard.

43. The ECJ said (at [86]) that national legislation disadvantaging some nationals of a Member State simply because they have exercised their freedom to move and to reside in

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another Member State amounts to a restriction on the freedoms conferred by Article 21(1) [NAME] on every citizen of the Union, and (at [87]) that

“[s]uch a restriction can be justified, under [NAME] law, only if it is based on objective considerations independent of the nationality of the persons concerned and is proportionate to the legitimate objective of the national provisions …”

44. The court referred (at [89]) to Case C-224/98 [NAME] v Office national de l’emploi [2004] ICR 137 and Case C-138/02 [NAME] v Secretary of State for Work and Pensions [2005] QB 145 and reiterated, as was said in those cases, that it is legitimate for the [NAME] to wish to ensure that there is a genuine link between a claimant to a benefit and the [NAME], as well as to guarantee the financial balance of a [NAME]. It said (at [90]) that the objectives of national legislation which seek to establish a genuine link between a claimant to short-term incapacity benefit in youth and the [NAME] and to preserve the financial balance of the [NAME], constitute, in principle, legitimate objectives capable of justifying restrictions on the rights of freedom of movement and residence under Article 21 [NAME].

45. The ECJ held (at [95]), however, with regard to the specific past presence condition in issue in the case, that it was too exclusive in nature. The ECJ said:

“… by requiring specific periods of past presence in the [NAME], the condition of past presence unduly favours an element which is not necessarily representative of the real and effective degree of connection between the claimant to short-term incapacity benefit in youth and that Member State, to the exclusion of all other representative elements. It therefore goes beyond what is necessary to attain the objective pursued (see, by analogy, [NAME]’s case …. para 39).”

46. The ECJ then said (at [96]) that such a connection could be established from other representative elements. It proceeded to give examples of such “representative elements” as follows:

“97. Such elements must be sought, in the first place, in the relationship between the claimant and the [NAME] of the [NAME]. In that regard, the decision making the reference states that the claimant is already entitled, under UK legislation, to disability living allowance.

98. Moreover, it is apparent from that decision that the claimant is credited with UK national insurance contributions which are added each week to her national insurance account.

99. It follows that [NAME] is already, in a certain way, connected to the [NAME] in question.

100. Other elements capable of demonstrating the existence of a genuine link between the claimant and the [NAME] may, secondly, be apparent from the claimant's family circumstances. In the case in the main proceedings, it is common ground that [NAME], who is incapable of acting on her own behalf because of her disability, remains dependent on her parents who care for her and represent her in her relations with the outside world. [NAME]'s mother and her father receive retirement pensions under UK legislation. In addition, her father worked in that member state before retiring, whereas her mother previously received, also under UK legislation, incapacity benefit.

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101. Finally, it is common ground that the claimant, a UK national, has passed a significant part of her life in the UK.”

47. The ECJ held (at [102]) that those elements of the case were capable of demonstrating the existence of a genuine and sufficient connection between the claimant and the [NAME].

48. The ECJ’s conclusion on the issue of the past presence condition was stated in [104] as follows:

“104. Consequently, national legislation, such as that at issue in the main proceedings, which makes acquisition of the right to short-term incapacity benefit in youth subject to a condition of past presence in the [NAME] to the exclusion of any other element enabling the existence of a genuine link between the claimant and that Member State to be established, goes beyond what is necessary to attain the objective pursued and therefore amounts to an unjustified restriction on the freedoms guaranteed by Article 21(1) [NAME] for every citizen of the Union.”

49. The nature of the necessary connection between the claimant to a benefit and the competent Members State was variously described by the ECJ in [NAME] as “a genuine link” (at [89]) and “a real and effective degree of connection” (at [95]) and “a genuine and sufficient connection” (at [102]).

50. We were referred by counsel to [NAME] and [NAME]. They do not add anything significant to [NAME] itself. [NAME] concerned an application for a Belgian unemployment benefit for young persons. In [38] of its decision, the ECJ said that it was legitimate for the [NAME] to wish to ensure that there was “a real link” between the applicant for that allowance and the [NAME] concerned. At [39] it said that the particular condition in the Belgian legislation in issue (requiring completion of secondary education by a Belgian national at an educational establishment in Belgium) unduly favoured an element which did not necessarily represent “the real and effective degree of connection” between the applicant for the benefit and the [NAME], to the exclusion of all other representative elements.

51. [NAME] concerned a claim by a dual United States and Irish national, who had recently returned to the UK, for jobseeker’s allowance under the Jobseekers Act 1995. Under the Jobseeker’s Allowance Regulations 1996 a person was only qualified to receive this benefit if, among other things, he or she was “habitually” resident in the UK. The ECJ, citing [NAME], said (at [67]) that it is legitimate for the [NAME] to wish to ensure that there is “a genuine link” between an applicant for such a benefit and the [NAME] in question; and (at [69]) that it may be regarded as legitimate for a Member State to grant a [NAME] benefit only after it is possible to establish that “a genuine link” exists between the person seeking work and the [NAME] of that Member State. It said (at [70]) that the existence of such a link may be determined, in particular, by establishing that the person concerned has, for a reasonable period, in fact genuinely sought work in the Member State in question. It added (at [72]) that, while a residence requirement is, in principle, appropriate for the purpose of ensuring such a connection,

“if it is to be proportionate it cannot go beyond what is necessary in order to attain that objective.… the period [of residence required] must not exceed what is necessary in order for the national authorities to be able to satisfy themselves that the person concerned is genuinely seeking work in the [NAME] of the host state.”

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52. There are a number of cases, in addition to [NAME], which illustrate that it is legitimate for a Member State to impose proportionate conditions requiring a genuine connection with the Member State as a condition of the right to claim [NAME] benefits in order that such rights should not impose an unreasonable burden on the Member State.

53. In Case C-140/12 Pensionsversicherungsanstalt v Brey [2014] 1WLR 108, the principal issue, so far as relevant to the present appeal, was whether Article 7(1)(b) of Directive 2004/38 precluded national legislation in Austria which denied the grant of a benefit - in that case a supplement to [NAME] invalidity pension and carer allowance - to a [NAME] who was economically inactive in Austria on the ground that, despite having been issued with a certificate of residence, he did not meet the necessary requirements for obtaining the legal right to reside in the [NAME] for a period of longer than three months, the right of residence itself being conditional upon the applicant having sufficient resources not to require the benefit.

54. The ECJ said (at [44]) that it had consistently held that there is nothing to prevent, in principle, the granting of [NAME] benefits to [NAME] who are not economically active being made conditional on those [NAME] meeting the necessary requirements for obtaining a legal right of residence in the [NAME], but added (at [45]) that it is important that the requirements for obtaining that right of residence – such as the need to have sufficient resources not to need to apply for the compensatory supplement – are themselves consistent with [NAME] law.

55. The ECJ said (at [57]) that it followed that, while regulation 883/2004 was intended to ensure that [NAME] who made use of the right to freedom of movement for workers retained the right to certain [NAME] benefits granted by their Member State of origin, Directive 2004/38 allowed the [NAME] to impose legitimate restrictions in connection with the grant of such benefits to [NAME] who do not or no longer have worker status, so that those [NAME] do not become an unreasonable burden on the [NAME] of that Member State.

56. Having said (at [64]–[69]) that the [NAME] must take into account “the personal circumstances” of the applicant, the ECJ said the following (at [72]):

“72. By making the right of residence for a period of longer than three months conditional on the person concerned not becoming an “unreasonable” burden on the social assistance “system” of the [NAME], Article 7(1)(b) of Directive 2004/38, interpreted in the light of recital (10) to that Directive, means that the [NAME] have the power to assess, taking into account a range of factors in the light of the principle of proportionality, whether the grant of a [NAME] benefit could place a burden on that member state's [NAME] as a whole. …”

57. The ECJ concluded (at [77]-[80]) that the condition in issue was precluded by, among other things, Article 7(1)(b) of Directive 2004/38 because (as the ECJ put it in [77]) a mechanism, whereby nationals of other member states who are not economically active and whose resources fall short of the reference amount for the grant of that benefit are automatically barred by the [NAME] from receiving the benefit:

“ does not enable the competent authorities of the [NAME] to carry out—in accordance with the requirements under, among other things, Articles 7(1)(b) and 8(4) of that Directive and the principle of proportionality—an overall assessment of the specific burden which granting that benefit would place on the [NAME] as a whole by reference to the personal circumstances characterising the individual situation of the person concerned.”

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58. In Case C-33/13 Dano v Jobcenter Leipzig [2015] 1 WLR 2519 the applicants were Romanian nationals, who had resided in Germany for more than three months but less than five years and so fell within Article 7(1)(b) of Directive 2004/38. One of the questions was whether Article 24(2) of Directive 2004/38 and Article 4 of regulation 883/2004 precluded [NAME] legislation under which nationals of other Member States, who were economically inactive, were excluded from entitlement to job seekers’ benefits because their right of residence arose solely out of their search for employment. The ECJ held that such [NAME] legislation was not precluded by [NAME] provisions.

59. The ECJ reiterated (at [71]) that it is apparent from recital (10) of Directive 2004/38 that the conditions in Article 7(1), in respect of periods of residence longer than three months, are intended, among other things, to prevent persons from becoming an unreasonable burden on the [NAME] of the [NAME].

60. The ECJ said (at [74]) that, to accept that persons who do not have a right of residence under Directive 2004/38 may claim entitlement to social benefits under the same conditions as those applicable to nationals of the [NAME], would run counter to an objective of the Directive, set out in recital (10), namely preventing [NAME] who are nationals of other Member States from becoming an unreasonable burden on the [NAME] of the [NAME]. The ECJ said (at [76]) that Article 7(1)(b) seeks to prevent economically inactive [NAME] from using the [NAME]’s welfare system to fund their means of subsistence.

61. The ECJ said (at [77]) that any unequal treatment between [NAME] who have made use of their freedom of movement and residence and nationals of the [NAME] with regard to the grant of social benefits is an inevitable consequence of Directive 2004/38; and that such potential unequal treatment is founded on the link established by the [NAME] legislature in Article 7 of Directive 2004/38 between the requirement to have sufficient resources as a condition for residence and the concern not to create a burden on the social assistance systems of the Member States; and (at [78]) that a Member State must have the possibility, pursuant to Article 7, of refusing to grant social benefits to economically inactive [NAME] who exercise their right to freedom of movement solely in order to obtain another Member State’s social assistance although they do not have sufficient resources to claim a right of residence.

62. Case C-308/14 European Commission v UK [2016] 1 WLR 5049 concerned a claim for child benefit and child tax credit. The ECJ held that UK legislation which requires persons claiming that benefit to have a right lawfully to reside in the UK was not discrimination prohibited under Article 4 of regulation 883/2004. The ECJ said (at [80]) that it is clear from the ECJ’s case law that the need to protect the finances of the [NAME] justifies in principle the possibility of checking whether residence is lawful when a social benefit is granted, in particular to persons from other Member States who are not economically active, as such a grant could have consequences for the overall level of assistance which may be accorded by that Member State. It said (at [85]) that it had not been shown that the requirement of a right to reside lawfully in the UK does not satisfy the conditions of proportionality, that it is not appropriate for securing the attainment of the objective of protected public finances or that it goes beyond what is necessary to attain that objective.

63. Further guidance on what evidence is relevant to establishing the genuine link may be found in Case C-75/11 European Commission v Austria [2013] 1 CMLR 17. In that case the [NAME] Commission brought proceedings against the [NAME] Government challenging the legality of imposing on students who were nationals of member states other than Austria, and who were pursuing their studies in Austria, higher fares than [NAME] students for use of public transport. The ECJ said (at [61]) that a national scheme requiring a student to provide

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proof of a genuine link with the [NAME] could, in principle, reflect a legitimate objective capable of justifying restrictions on the right to move and reside freely in the territory of the Member States provided for in Article 21 [NAME]. It said (at [62]), citing [NAME], that the proof required to demonstrate the genuine link must not be too exclusive in nature or unduly favour an element which is not necessarily representative of the real and effective degree of connection between the claimant to reduced transport fares and the Member State where the claimant pursues his studies, to the exclusion of all other representative elements. It added (at [63]) that the genuine link required between the student claiming a benefit and the [NAME]:

“need not be fixed in a uniform manner for all benefits but should be established according to the constitutive elements of the benefit in question, including its nature and purpose or purposes. The objective of the benefit must be analysed according to its results and not according to its formal structure.”

64. [ADDRESS] held (at [65]) that Austria had not established that the [NAME] scheme of reduced transport fares for [NAME] students was objectively justified.

65. Finally, on the relevant jurisprudence, while the cases show that the test or condition for showing the link must be a proportionate one, there is not a separate and additional requirement of proportionality which must be decided for each individual applicant: [redacted] [NAME] v Secretary of State for Work and Pensions [2016] UKSC 1, [2016] 1 WLR 481. The decision of the Supreme Court in that case concerned the issue whether a [NAME] living in the UK could properly be refused income support because she did not have a right of residence in the UK and also the issue whether an [NAME] living in the UK could properly be refused to be housed as a homeless person under part VII of the Housing Act 1996 because he was not eligible for housing assistance as he did not have the right of residence in the UK. The Supreme Court held that the refusal of such benefits and assistance was lawful.

66. The Supreme Court traversed the now familiar ground of freedom of movement of [NAME] nationals and recital (10) and Article 7 of Directive 2004/38. The Supreme Court rejected the submission, made on behalf of both claimants, that consideration needed to be given to the proportionality of refusing each of them social assistance bearing in mind all the circumstances of their respective cases. Lord Neuberger, with whom the other Supreme Court Justices agreed, said (at [69]):

“Where a national of another member state is not a worker, self-employed or a student, and has no, or very limited, means of support and no medical insurance (as is sadly the position of [NAME] and [NAME]), it would severely undermine the whole thrust and purpose of the 2004 Directive if proportionality could be invoked to entitle that person to have the right of residence and social assistance in another member state, save perhaps in extreme circumstances. It would also place a substantial burden on a [NAME] if it had to carry out a proportionality exercise in every case where the right of residence (or indeed the right against discrimination) was invoked.”

Summary of principles underlying the ECJ cases

67. We would summarise as follows the principles, relevant to this appeal, to be derived from the jurisprudence we have set out above.

(1) Notwithstanding the right of [NAME] to freedom of movement within the [NAME], Member States may specify proportionate conditions limiting the right of nationals of another Member State to social benefits in the [NAME], in order reasonably to limit the financial burden on its [NAME].

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(2) Such a condition may be the requirement that the applicant for the benefit must demonstrate a sufficient link with the [NAME].

(3) Such a link has been described in various terms as a “genuine” link, a “real link”, a “real and effective degree of connection”, and a “genuine and sufficient connection”. Those expressions are all to be interpreted as meaning the same thing.

(4) Where there is a condition requiring such a link or connection, the [NAME] must take into account all relevant evidence as to whether it has been established. Such evidence may include the relationship between the applicant and the [NAME] of the [NAME], family circumstances, and other personal circumstances of the applicant.

(5) There is no requirement for an additional and separate proportionality assessment for each individual applicant.

68. Applying those principles, there can be no doubt that the condition of “a genuine and sufficient link” to the United Kingdom is an appropriate and proportionate condition for limiting the financial burden on the UK of claims to [NAME] and [NAME] by the nationals of other Member States. On the other hand, it is common ground that, in requiring that link to be to “the [NAME]”, regulation 2A(1)(c) of the [NAME] and regulation 2A(1)(c) of the [NAME] are too narrow and prescriptive to be lawful. They are, therefore, to be interpreted and applied as requiring a genuine and sufficient link to the UK.

69. It is equally clear that, in assessing whether such a genuine and sufficient link is established, objective evidence of the link is plainly critical but evidence of the motives, intentions and expectations of the applicant are not to be ignored if they are relevant to proof of the link and are convincing. [NAME] and, on appeal, the courts are entitled to be cautious about self-serving statements by applicants, especially if the benefits are claimed immediately on or only shortly after arrival in the UK. Such caution is justified not only because self-serving statements as to motives, intentions and expectations may not be genuine but also because, even if they are genuine, actual realisation of the intentions and expectations of the applicant will not have been tested by the passage of time and the realities of the situation.

70. In the cases of [NAME] and [NAME], their motives for coming to the UK and their intentions and expectations in doing so have not been challenged at any stage. They were simply ignored as irrelevant at every stage by the [NAME], the [NAME] and the [NAME].

[NAME]

71. In the case of [NAME], the [NAME]’s statement of the relevant facts was very brief and as follows:

“2. [NAME] is Irish. He was born on [DATE] and apart from a break in 2003-2004, lived in Ireland until 26 June 2013, when he came to this country with his mother. She is [NAME] and last worked (in Ireland, for four months) before [NAME] was born. While in Ireland, [NAME] received a domiciliary care allowance and his mother received a carer’s allowance.”

72. The [NAME] recorded (at [7]) the concession of the [NAME] that (1) both [NAME] and [NAME] were within the scope of regulation 883/2004; (2) they were both habitually resident in Great Britain; and (3) the UK was the competent State for the payment of sickness benefit.

73. Having stated (at [36]) that the [NAME] had misdirected itself on the genuine and

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sufficient link issue by limiting its consideration to links with this country’s [NAME], the [NAME] set out (at [38]) its reasons as to why, in any event, it dismissed [NAME]’s appeal and his case that he had a genuine and sufficient link to the UK, as follows:

“I can see no relevance in the fact that the claimant and his mother came to this country to escape domestic violence. It explains why they came here, but it does not show or contribute to showing a sufficient link. I was referred to PB v Secretary of State for Work and Pensions [2016] UKUT 0280 (AAC), in which Upper Tribunal Judge Wright explained why he had accepted the Secretary of State’s concession that the claimant had established a sufficient link through his sister. On the basis of the judge’s reasoning, albeit only set out to explain why he accepted the concession, it is possible to establish a link through someone else. That is consistent with [NAME] where the Court took account not only of the claimant’s links, but also of her parents’. In the case of a child, it is difficult to see how a link could otherwise be established. However, the connections identified with this country essentially rely on inheritance. [NAME] himself has no connection and his mother’s connection has been relatively minor, certainly throughout his life. My conclusion is that, on the evidence, the [[NAME]] could not properly have come to a different decision even if it had directed itself correctly on the law.”

74. While we acknowledge the care with which the [NAME] gave its decision, we do not accept that the motives of [NAME], or rather his mother, for coming to the UK were irrelevant. They both explained and confirmed her settled intention to remain in the UK from the outset of her arrival, and they explained why the various steps that she took pursuant to that intention showed that she, and therefore [NAME], did have a genuine and sufficient link to the UK at the time of [NAME]’s claim for [NAME].

75. The [NAME] and the [NAME] should, therefore, have taken into account, but failed to take into account, the following matters advanced before the [NAME] in deciding whether or not [NAME] had a genuine and sufficient link: (1) [NAME]’s mother relocated to the UK, which was her country of nationality, consequent on domestic violence; (2) she required the support of her own mother, grandmother and two brothers, all of whom resided in England; (3) she did not believe that she could turn to her father for help in the Republic of Ireland as he was a heavy drinker and she did not consider that this was a suitable or safe environment to reside with [NAME] and his two siblings; (4) on coming to England she severed all ties with the Republic of Ireland and had had no intention of returning: she closed her sole bank account in the Republic of Ireland in the week preceding her return to England, took steps to register her children for school in England in July 2013 and they attended school in England from September 2013.

76. The decisions of both the [NAME] and the [NAME] were, therefore, flawed in principle. We see no point in remitting the matter, as we have all the material facts. We consider, having regard to the matters mentioned in the preceding paragraph, when added to the [NAME]’s concessions that [NAME] was habitually resident in Great Britain and that the UK was the [NAME] for the payment of sickness benefits, that [NAME] did have a genuine and sufficient link to the UK at the time of his claim and certainly at the time the decision was taken to reject his claim.

77. The [NAME] held that [NAME] was not assisted by the advance claims and awards provisions in regulation 13A (1) of the 1987 Regulations. The [NAME] said, on this point, as follows:

“39. A decision-maker and a tribunal should always consider, when appropriate, the possibility of an advance award under regulation 13A of the [NAME] (Claims and Payments) Regulations 1987. That regulation cannot assist [NAME]. It only applies if a claimant will qualify within 3 months provided that there is no change of circumstances. Therein lies the problem: the position for [NAME] is the reverse of when regulation 13A

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applies. He cannot qualify unless and until there is a change of circumstances – either through presence or through a genuine and sufficient link.”

78. In view of our decision that there was a genuine and sufficient link between [NAME] and the UK at the material time, the issue whether the [NAME] was correct or wrong on its application of regulation 13A (1) does not arise.

[NAME]

79. Turning to [NAME], the [NAME]’s statement of the relevant facts was, again, very brief and was as follows:

“5. [NAME] is [NAME]. She was born on [DATE] and came to this country on 29 May 2013, having lived continuously in Germany since 1998. Her claim for an attendance allowance was treated as made on 19 June 2013 and refused on 19 November 2013.”

80. The [NAME], having said that the [NAME] misdirected itself in law in applying Article 6 of regulation 883/2004 (aggregation of periods of residence etc), simply stated, by way of conclusion and reasoning:

“6. … On the evidence, the tribunal could not properly have found that that her connections with this country were sufficient to show a sufficient link. I have re-made the decision to that effect.”

81. As [NAME]’s motive, intentions and expectations were relevant, the [NAME] should have taken into account, but failed to take into account, the following matters, which have not been disputed by the [NAME], in deciding whether or not [NAME] had a genuine and sufficient link: (1) she suffered with several physical ailments including osteoporosis, rheumatoid arthritis, incontinence and high blood pressure, and used a catheter and a wheelchair; (2) she required support with mobility, washing, toilet, cooking meals, dressing and administering medication; (3) she moved to the UK to join her daughter, who was a [NAME] citizen and would provide daily care for her.

82. [NAME], for [NAME], submitted that a particularly important factor in [NAME]’s favour is that her daughter was a [NAME] citizen who, at the date of the claim, would have satisfied all the requirements, including residence requirements, for obtaining a carer’s allowance pursuant to SSCBA section 70 for looking after [NAME]. In that connection he cited Case 150/85 Drake v Chief Adjudication Officer [1987] QB 166. That case concerned the refusal of an application by the claimant, who had given up work to look after her severely disabled mother, for an invalid care allowance, which had been refused on the ground that the [NAME] Act 1975 disqualified her, as a married woman living with a husband, for entitlement to the allowance.

83. In the course of its judgment, the ECJ observed (at [23]) that different Member States provided protection against the consequences of the risk of invalidity in various ways, with some, such as the UK, providing two separate allowances, one payable to the disabled person and the other payable to a person who provides care, while other Member States “arrive at the same result” by paying an allowance to the disabled person at a rate equivalent to the sum of those two benefits. The ECJ then referred to the need to ensure that, whichever approach was adopted, the progressive implementation of the principle of equal treatment must be carried out in a harmonious manner throughout the Community. The ECJ also stated (at [24]) that “there is a clear economic link between the benefit and the disabled person, since the disabled person derives an advantage from the fact that an allowance is paid to the person caring for him”.

[2019] AACR 21 ([NAME] v [NAME])

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84. The essence of [NAME]’s submission on this point was that it would be a curious and wrong result if an applicant for [NAME] had come to the UK with the settled intention of receiving care from a person entitled to carer’s benefit but was refused [NAME] on the basis that the they did not have a genuine and sufficient link to the UK. [NAME]’s case is, however, of limited assistance. It does not lay down any rule of law that there will always be a genuine and sufficient link in those circumstances, irrespective of any other circumstances. The fact that [NAME]’s daughter would be entitled to carer’s benefit is relevant but it is only one of a number of factors to be taken into account in judging whether, in the round, the evidence demonstrates a genuine and sufficient link to the UK.

85. The decision of the [NAME] with regard to [NAME] was, therefore, flawed in principle. As in the case of [NAME], we see no point in remitting the matter, as we have all the material facts. We consider, having regard to all the relevant matters we have mentioned, including the [NAME]’s concessions that [NAME] was habitually resident in Great Britain and that the UK was the [NAME] for the payment of the relevant benefits, that [NAME] did have a genuine and sufficient link to the UK at the time of her claim and certainly at the time the decision was taken to reject her claim.

The [NAME]’s argument that mere presence is never enough

86. The [NAME] submitted in its written skeleton argument that the [NAME] was wrong to state (at [32]) that “presence alone may demonstrate a genuine and sufficient link”.

87. We understood [NAME], for the [NAME], to accept in his oral submissions that what is in issue here is whether mere presence in the UK short of the period of residence specified in regulation 2(1)(a)(iii) of the [NAME] and regulation 2(1)(a)(iii) of the [NAME] could ever be sufficient to establish a genuine and sufficient link.

88. There was debate before us as to the meaning and significance of the statement of the ECJ in [NAME] (at [93]) that:

“The existence of such a [genuine] link could effectively be established, in particular, by a finding that the person in question had been, for a reasonable period, actually present in that member state.”

89. In view of our decision that, in the case of both [NAME] and [NAME], there was a genuine and sufficient link between [NAME] and the UK at the material time, this issue of general principle raised by the [NAME] does not arise. It is inappropriate for us to address it as a hypothetical possibility. It seems highly unlikely that a period of residence in the UK will ever be the sole factor relied upon by an applicant for a benefit in seeking to demonstrate a genuine and sufficient link to the UK.

90. The [NAME]’s observations on this issue at [32] of its decision do not form part of its essential reasoning or ratio and do not, therefore, create any precedent. Nothing that we have said in this judgment should be taken to be an approval or disapproval of what was said there by the [NAME].

Conclusion

91. For the reasons we have given above, we allow these appeals of [NAME] and [NAME].