Kavanagh & Anor v The Secretary of State for Work And Pensions

For non-contributory social-security benefits claimed by an EU national recently arriving in the UK, a Member State may impose a proportionate requirement of a genuine and sufficient link with the host State. The link is not confined to connection with the UK social-security system. Decision-makers must assess all relevant evidence, including objective ties, family circumstances, and relevant motives, intentions and expectations. They may be cautious about self-serving statements. No separate applicant-specific proportionality exercise is required. The tribunal erred by disregarding the appellants’ reasons for relocation and family circumstances. Both appellants had the required link. The hypothetical issue whether mere presence alone could establish the link was left open.

Brandon Kavanagh, an Irish minor, claimed disability living allowance shortly after arriving in the UK. Maryam Mohamed, a German national, claimed attendance allowance shortly after arriving from Germany. The Secretary of State refused both claims.

The First-tier Tribunal and the Upper Tribunal rejected the claims. The Upper Tribunal held that neither claimant had demonstrated a genuine and sufficient link with the UK and that Kavanagh could not rely on the advance-award provisions. The appeals challenged the link findings and, in Kavanagh’s case, regulation 13A of the Social Security (Claims and Payments) Regulations 1987. The Secretary of State also challenged the Upper Tribunal’s view that presence alone might suffice.

The appeals were allowed. The court held that regulation 2A of the Social Security (Disability Living Allowance) Regulations 1991 and the Social Security (Attendance Allowance) Regulations 1991 removes the past-presence requirement where the claimant is habitually resident in Great Britain, a relevant EU Regulation applies, and a genuine and sufficient link is established.

1. The ECJ authorities, including Lucy Stewart [2012] 1 CMLR 337, establish that Member States may impose proportionate conditions protecting their social-assistance systems. A genuine link may be required. The expressions “genuine link”, “real link”, “real and effective degree of connection” and “genuine and sufficient connection” describe the same requirement. There is no separate proportionality assessment for every individual claimant: Mirga v Secretary of State for Work and Pensions [2016] UKSC 1, [2016] 1 WLR 481.
2. Regulation 2A(1)(c) was too narrow and unlawful insofar as it required a link with the UK social-security system. It had to be interpreted as requiring a genuine and sufficient link with the UK.
3. All relevant evidence must be considered. This includes objective links, family circumstances, personal circumstances, and relevant motives, intentions and expectations. Caution may be justified concerning self-serving statements, particularly where benefits are claimed immediately after arrival.
4. For Kavanagh, the family’s escape from domestic violence, support from relatives in England, severance of Irish ties, school arrangements and settled intention to remain were relevant. Together with habitual residence and the UK’s competence for sickness benefits, those matters established the required link. The case was not remitted.
5. For Mohamed, her serious disabilities, need for care, move to join her British daughter and intended receipt of care were relevant. The daughter’s possible entitlement to carer’s allowance was relevant but not automatically determinative. Considering all the circumstances, Mohamed also had the required link.

The court did not decide whether mere presence alone could ever establish the link. The Upper Tribunal’s observation on that hypothetical issue was not part of its essential reasoning or ratio. The regulation 13A issue did not arise once Kavanagh was found to have the required link.

1. Court of Appeal (Civil Division) — By judgment dated 7 March 2019, the appeals were allowed. The court held that both appellants had a genuine and sufficient link with the UK and did not decide the hypothetical presence-only issue.
2. Upper Tribunal (Administrative Appeals Chamber) — On 12 December 2016, Judge Jacobs held that neither appellant was entitled to the claimed benefit. The Upper Tribunal rejected aggregation of overseas residence, found no genuine and sufficient link, and held that the advance-award provisions did not assist Kavanagh.
3. First-tier Tribunal — Mohamed’s appeal was allowed on the aggregation issue, while Kavanagh’s appeal was rejected. The tribunal also found that neither Kavanagh nor his mother had a genuine and sufficient link with the UK.