Upper Tribunal rules claimant entitled to housing benefit
📌 In brief
The Upper Tribunal ruled that the claimant was entitled to housing benefit because he had a sufficient right to reside and comprehensive sickness insurance. This decision was made in favour of the claimant who had lived in Wales since 1986.
⚖️ Legal holding
A person with settled status and comprehensive sickness insurance is entitled to housing benefit.
📖 Technical summary
The claimant's appeal against the refusal of housing benefit was successful due to his right to reside.
📜 Headnote Official document
The claimant appealed the refusal of housing benefit from 19 December 2016 to 5 June 2019. The Upper Tribunal found the claimant had a sufficient right to reside and was entitled to housing benefit, provided he met other conditions of entitlement.
📚 Full judgment Official document
[NAME] v Powys CC and SSWP [2022] UKUT 203 (AAC)
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IN THE UPPER TRIBUNAL Appeal No. UA-2019-001384-HB ADMINISTRATIVE APPEALS CHAMBER Previously CH/1602/2019
On appeal from the First-tier Tribunal (Social Entitlement Chamber)
Between: [NAME] Appellant - v –
1. Powys County Council 2. Secretary of State for Work and Pensions Respondents
Before: Upper Tribunal Judge Ward
Decision date: 25 July 2022 Decided on consideration of the papers
Representation: Appellant:
[redacted] First Respondent:
[redacted] Second Respondent: [redacted]
Government Legal Department
DECISION
The decision of the Upper Tribunal is to remake the decision under appeal as follows:
The Appellant’s appeal to the First-tier Tribunal (“FtT”) against the First Respondent’s decision of 3 July 2017 refusing him housing benefit on and from 19 December 2016 is allowed. He had a sufficient right to reside for housing benefit purposes and, provided he continued to fulfil the other conditions of entitlement, remained entitled to housing benefit between 19 December 2016 and 5 June 2019.
[NAME] v Powys CC and SSWP [2022] UKUT 203 (AAC) Case no: UA-2019-001384-HB
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REASONS FOR DECISION
1. By an interim decision dated 14 September 2021 I set aside for error of law the decision of the First-tier Tribunal dated 8 March 2019 for failing to address a submission put to it by the Appellant regarding proportionality (see “the second issue” below). The issues in the appeal before me fell into two main groups: the first involved a series of points which, even by the standards of European and domestic law relating to the right to reside and social security co-ordination, were highly technical. They were the subject of the Interim Decision. The conclusion was, put shortly, that the Appellant could not rely on [NAME] (“[NAME]”) derived from his economic activity in Germany many years previously. That was a logical precondition to dealing with the second issue, which was the possible application of the doctrine of proportionality, so that when remaking the decision the Upper Tribunal should disapply the legislative requirements of which (as it at that stage appeared) the Appellant’s claim had fallen foul. The Secretary of State was joined as Second Respondent because of the potential wider implications of the case.
2. I gave Directions on the proportionality issue and received submissions from all parties. However, before a decision was given, the Court of Justice of the European Union gave judgment in C-247/20 VI v HMRC. When considering “the United Kingdom’s public sickness insurance system offered free of charge by the National Health Service” the Court held at [69] that “once a Union citizen is affiliated to such a public sickness insurance system in the host Member State, he or she has comprehensive sickness insurance within the meaning of Article 7(1)(b).” 3. It is common ground that as the present case relates to a period falling before the Brexit ”IP completion day” of 31 December 2020, the Appellant is entitled to rely on this decision.
4. The Appellant has lived in Wales since 1986 and would be considered for healthcare purposes to have ordinary residence there. He has given evidence that he was an NHS patient between 1986 and 2016. He was for a long time of independent means, the first sign of any difficulty in that regard being in around 2014. In those circumstances, there will have been a period of considerably more than the 5 years needed to qualify for the right of permanent residence (introduced in 2006 by art.16 of Directive 2004/38) during which he fulfilled both limbs of art.7(1)(b) of the Directive (sufficient resources not to become a burden on the social assistance system of the host Member State during his period of residence and [NAME]). There is no suggestion on the evidence that any such period while the right was being acquired will have been materially interrupted. Once acquired, such a right of permanent residence can only be lost through absence from the host Member State for a period exceeding two consecutive years (and there is no suggestion of that here either).
5. Neither of the Respondents has sought to contend that the anti-test case rule in sched.7, para 18 of the Child Support, Pensions and Social security Act 2000 applies. They are correct not to do so, as the definition of “relevant authority” in para 1 of the Schedule refers to “an authority administering housing benefit” which of course HMRC, the respondent in VI’s case, is not.
3 6. Consequently, the Appellant meets the requirements of reg. 10 of the relevant Housing Benefit regulations for the period between when his claim was disallowed for lack of a right to reside until the date when, having acquired “settled status” under Appendix EU of the Immigration Rules, he had once again become eligible in any event.
C.G.Ward
Judge of the Upper Tribunal
Authorised for issue on 25 July 2022
⚖️ What tends to weigh in cases like this
✅ Tends to be accepted
- The claimant had a sufficient right to reside for housing benefit purposes.
- The claimant was entitled to rely on the judgment in C-247/20 VI v HMRC because the case related to a period before Brexit.
- Affiliation to the UK's public sickness insurance system (NHS) counts as comprehensive sickness insurance.
- The claimant had lived in Wales since 1986 and was an NHS patient between 1986 and 2016, establishing ordinary residence.
- The claimant had more than 5 years of sufficient resources and comprehensive sickness insurance to qualify for permanent residence.
- The anti-test case rule did not apply because HMRC, the respondent in the VI case, does not administer housing benefit.
❌ Tends to be rejected
- The claimant could not rely on a right derived from his economic activity in Germany many years previously.
Patterns observed in similar cases in this collection — every case is unique.
❓ Frequently asked questions
What did this decision decide?
The claimant was entitled to housing benefit from 19 December 2016 to 5 June 2019.
What was the dispute about?
The dispute was over whether the claimant had a sufficient right to reside and was therefore entitled to housing benefit.
How did the court decide, and why?
The court decided in favour of the claimant because he had lived in Wales since 1986 and had comprehensive sickness insurance, thus meeting the criteria for a right to reside.
Which laws or rules were applied?
Regulation 10 of the Housing Benefit regulations and Article 7(1)(b) of Directive 2004/38 were applied.
What was the argument that mattered most?
The argument that mattered most was that the claimant had lived in Wales since 1986 and had comprehensive sickness insurance, which established his right to reside.
Was the decision for or against the person who brought the case?
The decision was for the person who brought the case.
What does this mean for someone in a similar situation?
Someone in a similar situation may also be entitled to housing benefit if they have a sufficient right to reside and comprehensive sickness insurance.
What evidence or documents mattered?
Evidence of the claimant's long-term residence in Wales and his comprehensive sickness insurance mattered in the decision.