WH v Powys County Council & Anor

A Union citizen affiliated to the host state’s public health insurance system has comprehensive sickness insurance for the purposes of Article 7(1)(b) of Directive 2004/38. Where the citizen also had sufficient resources for a continuous five-year period, a right of permanent residence is acquired. That right continues unless lost through absence for more than two consecutive years.

For a pre-IP-completion-day housing-benefit claim, the anti-test-case rule did not prevent reliance on a Court of Justice decision against HMRC, because HMRC was not an authority administering housing benefit. A person with the resulting permanent right of residence satisfied the right-to-reside requirement in the applicable housing-benefit regulations.

The appellant appealed against the First-tier Tribunal’s decision of 8 March 2019, which upheld Powys County Council’s refusal of housing benefit from 19 December 2016 for want of a sufficient right to reside.

In an interim decision of 14 September 2021, the Upper Tribunal set aside that decision for failure to address the appellant’s proportionality submission. Before the remade decision was issued, the Court of Justice decided VI v HMRC, C-247/20. The question became whether the appellant’s NHS affiliation gave him comprehensive sickness insurance, enabling him to have acquired and retained permanent residence.

1. Appeal allowed. The Upper Tribunal remade the First-tier Tribunal decision. The appellant had a sufficient right to reside for housing-benefit purposes and remained entitled to housing benefit from 19 December 2016 to 5 June 2019, subject to the other conditions of entitlement.

2. The appellant could rely on VI v HMRC, C-247/20, because the claim concerned a period before IP completion day. That decision established that affiliation to the NHS public sickness-insurance system provided comprehensive sickness insurance within Article 7(1)(b) of Directive 2004/38.

3. The evidence showed that the appellant had ordinary residence in Wales, was an NHS patient from 1986 to 2016, and had been of independent means until about 2014. He therefore had a continuous period of more than five years in which he satisfied both sufficient-resources and comprehensive-sickness-insurance conditions. That period acquired for him a right of permanent residence under Article 16.

4. There was no evidence of a materially interrupting event while that right was acquired, nor of an absence from the host state exceeding two consecutive years after acquisition. The permanent right therefore remained in force.

5. The anti-test-case rule in Schedule 7, paragraph 18 of the Child Support, Pensions and Social Security Act 2000 did not apply. Its definition of a relevant authority required an authority administering housing benefit, and HMRC did not meet that description. The appellant consequently met regulation 10 of the relevant housing-benefit regulations for the disputed period.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal from the First-tier Tribunal and remade the decision in the appellant’s favour.
• First-tier Tribunal (Social Entitlement Chamber): by a decision dated 8 March 2019, upheld the refusal of housing benefit. Its decision was set aside by the Upper Tribunal’s interim decision of 14 September 2021 for error of law.