BK v Secretary of State for Work and Pensions

Article 6 of Regulation (EC) 883/2004 does not permit the aggregation of mere residence in another Member State with presence in Great Britain. It applies only to periods of residence completed under the legislation of that other State. Paragraph 2 of Annex XI adjusts that aggregation rule for the domestic past-presence test; it does not extend it.

A claimant subject to the Regulation may be required to show a genuine and sufficient link with the United Kingdom. EU law requires a link with the Member State, not exclusively with its social-security system. Past presence may itself establish the link, alone or with other relevant circumstances.

These conjoined lead appeals concerned claims for disability living allowance and attendance allowance by EU citizens who had recently moved to Great Britain from Ireland and Germany respectively. Both claimants were habitually resident in Great Britain, within the scope of Regulation (EC) 883/2004, and the United Kingdom was the competent State.

BK’s First-tier Tribunal appeal had been dismissed because he failed both the domestic past-presence condition and the genuine-and-sufficient-link condition. MM’s appeal had been allowed because the tribunal aggregated her German residence with her British presence. The central issues were whether Article 6 permitted that aggregation and whether domestic regulations could require a link with the United Kingdom social-security system.

1. BK’s appeal was dismissed. The First-tier Tribunal was correct to refuse aggregation under Article 6 and Annex XI of Regulation (EC) 883/2004. Foreign residence can count only if it was a period defined, recognised or completed under the legislation of the other Member State. Proof that ordinary or habitual residence was merely a condition of entitlement to an Irish benefit did not prove such a period.

2. The Secretary of State’s appeal in MM was allowed. The First-tier Tribunal had erred by aggregating MM’s German residence. Its decision was set aside and remade: MM was not entitled to attendance allowance on her claim.

3. Stewart v Secretary of State for Work and Pensions, ECLI:EU:C:2011:500, establishes that a Member State may require a genuine and sufficient connection with that State before awarding a non-contributory benefit. Article 6 cannot be construed so as to bypass that requirement by treating mere foreign residence as satisfying the domestic past-presence condition.

4. The words requiring a claimant to demonstrate a genuine and sufficient link to the United Kingdom social security system were not authorised by Stewart v Secretary of State for Work and Pensions. Decision-makers and tribunals must disregard those words and assess all relevant links with the United Kingdom. A connection through family members may be relevant, particularly for a child, but BK’s own lack of connection and his mother’s limited connections did not establish a sufficient link.

5. Past presence is one possible means of establishing the necessary link. It may be sufficient alone or in combination with other factors. Neither claimant, having only recently arrived, could rely on it. An advance award under regulation 13A could not assist because neither would qualify within three months without a change of circumstances.

• Upper Tribunal (Administrative Appeals Chamber): BK’s appeal from the First-tier Tribunal decision at Aldershot, dated 25 September 2015, was dismissed. The Secretary of State’s appeal from the First-tier Tribunal decision at Fox Court, dated 6 August 2014, was allowed; that decision was set aside and remade.
• First-tier Tribunal: BK’s appeal was dismissed. MM’s appeal was allowed on the basis that her German residence could be aggregated with her British presence.