AMS v Secretary of State for Work and Pensions (PC) (final decision)

An EU national who has not acquired permanent residence may be refused state pension credit where, after the individual assessment required by EU law, the award would impose an unreasonable burden on the host state's social assistance system. The assessment may take account of the full statutory value of pension credit and benefits automatically passported by it. It is not confined to the claimant's immediate budgetary deficit or to the amount the claimant says she needs.

The likely duration of the award and the collective effect of comparable open-ended claims are relevant. Strong personal and family links with the United Kingdom do not alter that assessment. A claimant cannot bind herself not to claim a statutory benefit for which she would otherwise be entitled.

The claimant, a Dutch national living in the United Kingdom near her British children, claimed state pension credit in April 2013 after her capital had reduced. The Secretary of State decided on 15 July 2013 that she lacked a qualifying right to reside. The First-tier Tribunal upheld that decision on 28 July 2014.

The Upper Tribunal had set aside the First-tier Tribunal's decision for failing to address proportionality. In an earlier interim decision, AMS v SSWP (PC) [2017] UKUT 0048 (AAC), it held that the approach in Brey required an overall assessment of the burden of the proposed award. The final issue was whether, on the further evidence, granting pension credit and its passported benefits would impose an unreasonable burden on the United Kingdom's social assistance system.

1. The claimant's appeal was dismissed. The First-tier Tribunal had made an error of law and was set aside, but the Upper Tribunal remade the decision under section 12(2)(b) of the Tribunals, Courts and Enforcement Act 2007. The claimant was not entitled to state pension credit because she lacked a right to reside.
2. Applying the assessment required by Brey, the tribunal assessed the specific burden of the award by reference to the claimant's personal circumstances and the social assistance system as a whole. The relevant value was not merely her monthly shortfall of under £200. Pension credit would have been approximately £558.58 monthly and would automatically have passported her to housing benefit and council-tax reduction estimated at approximately £541.67 monthly.
3. Although family members and benevolent organisations supported the claimant, those payments did not reduce the statutory pension-credit entitlement in the way suggested. Nor could the claimant irrevocably undertake not to claim housing benefit or another statutory benefit for which she met the conditions.
4. The likely burden was at least £13,200 yearly for at least four years and potentially longer. The claimant's advanced age, absence of evidence of a condition likely to shorten the claim, and the open-ended nature of the entitlement were material. The tribunal could infer a collective impact from evidence of pension-credit claims by EEA nationals and the duration of such claims. It concluded that the claim would impose an unreasonable burden on the United Kingdom's social assistance system.
5. In observations unnecessary to the result, later evidence may be used where it relates to circumstances at the date of the Secretary of State's decision. The assessment of resources should not rest on speculative contingencies and should not require discretionary support to be guaranteed.

• Upper Tribunal (Administrative Appeals Chamber): The First-tier Tribunal's decision was set aside for error of law. Following an interim decision, AMS v SSWP (PC) [2017] UKUT 0048 (AAC), and further fact-finding, the Upper Tribunal remade the decision and dismissed the claimant's appeal.
• First-tier Tribunal: Sitting at Weymouth on 28 July 2014, it upheld the Secretary of State's decision of 15 July 2013 that the claimant lacked a qualifying right to reside for state pension credit.