Social Security Case Law - Summer 2024

Headnote

Clarification of the PIP past present test for EU family members with settled status following the impact of the Withdrawal Agreement and decision to leave the European Union.

Background

The Appellant (ES) was a Polish national who resided in Scotland since 2017, and whose daughter with settled status in November 2019 cared for her. ES returned to Poland every year to visit family and travelled in December 2020 but was unable to return as intended in January 2021 due to Covid travel restrictions. After returning in August 2021, she made a claim for Personal Independence Payment in September 2021, despite being absent from the country for longer periods than allowed under the residency and presence regulations. Her claim was denied, and the decision upheld at the First-Tier Tribunal.

Legal Issue

The Tribunal was tasked to determine whether the claimant was able to satisfy the Personal Independence residency and presence requirements under Regulation 22 and whether the Frist Tier Tribunal was correct in its decision that the EU Regulations had been revoked by the Withdrawal Agreement following Brexit.

Relevant Legislation

• Schedule 77(3) and Section 84(2)(b) of the Welfare Reform Act 2012
• Regulation (EC) 883/2004
• Regulations 16(b) and 22(b) of the Social Security (Personal Independence Payment) Regulations 2013
• Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (2019/C 384 I/01)
• Article 31 Social Security Co-ordination (Revocation of Retained Direct EU Legislation and Related Amendments) (EU Exit) Regulations 2020 (S.1. 2020/1508), Regulations 1(3) and 3(a).

Decision

The Upper Tribunal decided that the Secretary of State is to proceed with ES’s Personal Independence Claim made in September 2021 on the basis that she satisfies Regulation 22 of the Social Security (Personal Independence Payment) Regulations 2013. These Regulations applied to persons residing in Great Britain to whom a relevant EU Regulation applies. In relation to this case, Regulation 16(b) which outlines the PIP residency requirements does not apply where Regulation 22 is in effect.

It was held that ES satisfied all three conditions: in being habitually resident in Great Britain, having a sufficient link to the United Kingdom social security system and that Article 31 of Regulations (EC) 883/2004 was in application and satisfies the requirement of having a relevant EU Regulation. The Upper Tribunal highlighted that it was not the effect of the Withdrawal Agreement to revoke all EU Directives and Regulations currently in place, but that under Article 31 the rules and objectives set out in Regulations (EC) 883/2004 shall continue to apply to eligible citizens as found in this case due to ES’s daughter’s settled status and their family relationship.