Sandwell Metropolitan Borough Council v KK & Anor

A derivative right of residence arising under Article 10 of Regulation (EU) No 492/2011 may support entitlement to housing benefit. A concurrent right of residence as a jobseeker does not prevent reliance on that derivative right. The exclusion of jobseekers from social assistance under Article 24(2) of Directive 2004/38/EC applies to rights of residence based on that Directive, not to an independent right arising under Article 10. A First-tier Tribunal must give sufficient factual detail to explain findings establishing permanent residence, particularly where relevant evidence was given at a hearing in the absence of the local authority.

The claimant claimed housing benefit from Sandwell Metropolitan Borough Council on 18 June 2018. Sandwell refused the claim on the ground that she was a person from abroad under regulation 10 of the Housing Benefit Regulations 2006. It also considered that her derivative right of residence as the primary carer of a child in education could not be relied on while she had not exhausted a possible jobseeker right of residence.

The First-tier Tribunal set aside Sandwell’s decision on 28 February 2019, relying in part on evidence about the claimant’s parents’ employment and possible permanent residence rights. Sandwell appealed, challenging procedural fairness and the adequacy of the tribunal’s reasoning. The central issue before the Upper Tribunal was whether the claimant’s derivative right of residence under Article 10 of Regulation (EU) No 492/2011 could count for housing benefit purposes despite any concurrent jobseeker status.

1. The appeal was allowed. The First-tier Tribunal’s decision was set aside for error of law under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007.
2. The tribunal had failed to explain adequately why the claimant had acquired a permanent right of residence through her parents’ work histories. It did not identify the employers, earnings, employment status, or relevant Workers Registration Scheme evidence. Referring generally to the audio recording and accepting the claimant’s evidence was insufficient, particularly because Sandwell had not attended the hearing and was entitled to understand the factual basis of the decision.
3. Article 10 of Regulation (EU) No 492/2011 confers an independent basis for derived rights of residence. The child’s right of residence in education entails a corresponding right for the primary carer. Those rights were reflected in regulations 16(3) and 16(4) of the Immigration (EEA) Regulations 2016.
4. Following Jobcenter Krefeld-Widerspruchsstelle v JD (Case No. C-181/19) EU:C:2020:794, the Article 24(2) derogation in Directive 2004/38/EC applied only where the right of residence was based on that Directive. It did not authorise withholding social assistance from a jobseeker who also had an independent Article 10 right of residence.
5. Accordingly, any concurrent jobseeker right did not prevent the claimant relying on her derivative right for her housing benefit claim. The Upper Tribunal set aside Sandwell’s decision of 25 July 2018 and decided that the claimant was not a person from abroad under regulation 10 of the Housing Benefit Regulations 2006. Other entitlement issues were left for Sandwell to determine.
6. The Upper Tribunal declined to decide whether the claimant also had a permanent right of residence. That issue remained open because it was unnecessary to dispose of the appeal and the First-tier Tribunal’s findings provided no secure basis for redetermination.

• First-tier Tribunal (Social Entitlement Chamber): On 28 February 2019, set aside Sandwell’s decision of 25 July 2018.
• Upper Tribunal (Administrative Appeals Chamber): Allowed Sandwell’s appeal, set aside the First-tier Tribunal’s decision for error of law, redecided the appeal, set aside Sandwell’s decision, and held that the claimant was not a person from abroad for the relevant housing benefit claim.