Secretary of State for Work and Pensions v WV

For the purposes of the self-sufficiency condition in art.7(1)(b) of Directive 2004/38/EC, an EU national may rely on resources made available by a spouse who is a national of the host state, including resources derived partly from social assistance paid to that spouse. The resources need not originate independently of the host state. The spouse’s benefits are relevant where the spouse is outside the scope of the Directive and the claimant’s presence has not increased, or has reduced, the social-assistance burden. Any prospective burden must be assessed by an overall, individualised and collective assessment under Pensionsversicherungsanstalt v Brey C-140/12. A small, time-limited burden may be reasonable.

The claimant, a Belgian national, lived in the United Kingdom with his British wife, who was severely disabled and received legacy benefits. He received carer’s allowance. When the couple moved area, they were required to claim universal credit. The claimant did not satisfy the domestic qualifying-right-to-reside condition unless he was a self-sufficient person under regulation 4(1)(c) of the Immigration (European Economic Area) Regulations 2016.

The First-tier Tribunal allowed his appeal, but the Upper Tribunal found an error of law. The central questions were whether the claimant could rely on benefits paid to his wife to establish sufficient resources, and whether any future burden on the social-assistance system would be unreasonable.

1. Appeal and remaking. The Secretary of State’s appeal was allowed because the First-tier Tribunal had erred in law. The decision was set aside and remade in the claimant’s favour under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007.
2. Resources. Under art.7(1)(b) and art.8(4) of Directive 2004/38/EC, the claimant could rely on resources made available to him by his wife. The authorities from Zhu and Chen C-200/02 to Bajratari C-93/18 consistently rejected requirements concerning the origin of resources. That principle was not altered merely because some resources ultimately derived from social assistance paid by the host state.
3. The wife was not a beneficiary of the Directive. She had not moved to, or joined the claimant in, another Member State. The claimant therefore had to show sufficient resources for himself, not for his British wife.
4. The claimant’s presence had not increased the relevant social-assistance burden before the universal-credit claim. The court accepted the concession that carer’s allowance was not social assistance for Directive purposes. The reduction in the wife’s ESA therefore meant that the household’s social-assistance burden decreased.
5. Prospective assessment. Applying Brey C-140/12, the relevant burden was the additional universal credit payable if the claimant were treated as satisfying the right-to-reside condition. The assessment had to consider the actual circumstances, the likely 23-month period before settled status, and the collective impact of comparable claims. The relevant cohort was small and time-limited. The additional burden of approximately £7,983 was consequently not unreasonable.
6. The claimant was to be treated as being in Great Britain for section 4(1)(c) of the Welfare Reform Act 2012. Universal credit was payable on the joint claim at the couple rate rather than the single-person rate.

• Upper Tribunal: The appeal against the First-tier Tribunal decision was allowed. The decision made on 7 January 2021 under number SC200/20/00413 was set aside for error of law and remade in the claimant’s favour.
• First-tier Tribunal: The claimant’s appeal against the decision of 13 August 2020 had been allowed.