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

Where a Union citizen who previously satisfied the self-sufficiency conditions in Article 7(1)(b) seeks social assistance, the host state must not use an automatic link between the benefit claim and absence of a right to reside. It must instead undertake the individual and collective assessment required by Brey.

The assessment concerns the claimant’s present personal circumstances, including needs, resources, the amount and sustainability of income or support in kind, the likely duration of the award, and the resulting burden on the social-assistance system as a whole. It does not require investigation of the claimant’s past integration or hypothetical alternatives. The later decisions in Dano, Alimanovic and Garcia-Nieto confine Brey to its proper context, but do not displace it there.

The appellant, a Dutch national resident in the United Kingdom since 2006, claimed state pension credit from 17 January 2013. The Secretary of State refused the claim on 15 July 2013 because she lacked a right to reside. She had previously held savings and, after receiving a Dutch pension from December 2012, had comprehensive sickness insurance cover. Her income and support from relatives and other sources required further factual investigation.

In an earlier interim decision, the Upper Tribunal set aside the First-tier Tribunal’s decision for error of law. This supplemental decision addressed whether the personalised assessment required by Pensionsversicherungsanstalt v Brey remained applicable after subsequent Court of Justice and Supreme Court decisions, and what that assessment required before the decision could be remade.

1. The First-tier Tribunal had made a further error of law. Neither it nor the Secretary of State had undertaken the assessment required by Pensionsversicherungsanstalt v Brey. The appeal could not yet be finally remade, so the Upper Tribunal gave directions for further evidence and submissions.

2. Brey applied. In the context of Article 7(1)(b) of Directive 2004/38/EC, a claimant’s application for state pension credit cannot automatically establish that she lacks sufficient resources or is an unreasonable burden. Articles 7(1)(b) and 8(4) require an overall assessment of the burden of granting the benefit on the social-assistance system as a whole, by reference to the claimant’s personal circumstances.

3. The subsequent authorities did not remove that requirement in its proper field. Dano, Alimanovic and Garcia-Nieto concerned categories governed by the Directive’s express structure and derogations. Mirga and Samin v SSWP rejected a free-standing proportionality argument by persons with no relevant Article 7 status. Those decisions did not displace the assessment mandated by Articles 7(1)(b) and 8(4) where a claimant had previously been self-sufficient and the issue was whether present resources made her an unreasonable burden.

4. Scope of the assessment. It must address present needs and resources, including regular and sustainable financial support and support in kind, the amount and likely duration of the benefit, and the collective impact of comparable claims. The statutory applicable amount may be a starting point but is not conclusive. Resources supplied by third parties may count. Past social integration, and hypothetical events that might have produced a different residence position, were not relevant factors.

5. Directions. Further evidence and sequential written submissions were ordered so that the Upper Tribunal could carry out the assessment and remake the decision under section 12 of the Tribunals, Courts and Enforcement Act 2007.

• Upper Tribunal (Administrative Appeals Chamber): In an earlier interim decision dated 27 October 2015, the Upper Tribunal held that the First-tier Tribunal had erred in law and set its decision aside. In this second interim decision, it found a further error and directed further evidence before remaking the decision.
• First-tier Tribunal: Its decision on the refusal of state pension credit was set aside for error of law. No citation is stated in the judgment.
• Secretary of State: On 15 July 2013, the claim for state pension credit was refused for want of a right to reside.