Social Security Case Law - Summer 2024

Headnote

The Universal Credit child element is not a social security family benefit for the purposes of Regulation EC 883/2004.

Background

The claimant, who is Slovakian had a son while resident there in 2002 before coming to the United Kingdom in 2005. After years of employment, she was able to establish a permanent right of residence in October 2017. In July 2017, she made a successful claim for Universal Credit that included a child element, despite evidence of the child living in Slovakia. However, in October 2017 the Secretary of State revised her entitlement and removed the child element from her award.

The claimant appealed the decision to the First-Tier Tribunal and was successful as they stated she satisfied the ‘main responsibility test’ despite her child living abroad. However, the Secretary of State appealed the decision to the Upper Tribunal  where the judgment was overturned as they held that the claimant was not responsible for her child under domestic provision and could not rely on European Union law to protect her entitlement to the child element.

The claimant submitted her appeal to the Court of Appeal.

Legal Issue

The Court of Appeal was tasked to determine whether EU law under non-discrimination Regulations (EC) No.883/2004 provides entitlement to the child element of Universal Credit where the claimant’s children or qualifying young person are not resident in the United Kingdom.

Relevant Legislation

• Regulation EEC (of the Council of 14 June 1971) No 1408/ 71
• Universal Credit Regulations 2013
• Welfare Reform Act 2012
• Agreement on The Withdrawal of The United Kingdom of Great Britain and Northern Ireland from the European Union and European Atomic Energy Community (“The Withdrawal Agreement”)
• Regulation (EC) No 883/2004

Relevant Case Law

• Case C – 299/05 Commissioner v Parliament [2007] ECR 75695
• Bartlett, Gonzalez Ramos and Taylor v Secretary of State for Work and Pensions (C-537/09) [2012] PTSR 535)
• Case C-709/20 CG v Department for Communities in Northern Ireland EU:C:2021:602
• Case 122/84 Vera Hoeckx v Centre Public D’aide Sociale de Kalmthout [1985] ECR 973

Decision

The appeal by the claimant was unsuccessful as they agreed with the Upper Tribunal in that the Regulation does not undermine the essential freedom of Member States to share their own social security systems and that generalised, composite benefits schemes are outside the scope of the Regulation as stated at paragraph [52].