ES v Secretary of State for Work and Pensions

For claimants protected by the Withdrawal Agreement, Article 31 makes the rules and objectives of Regulation (EC) No 883/2004 apply for the purpose of regulation 22(b) of the Social Security (Personal Independence Payment) Regulations 2013. Regulation 22 therefore disapplies the ordinary 104-week presence condition where its three conditions are met.

The domestic revocation of Regulation 883/2004 as retained direct EU legislation did not revoke the Regulation itself. A contrary construction would also deprive the continuing references to that Regulation in the personal independence payment legislation of effect.

ES, a Polish national living in Scotland and cared for by her daughter, claimed personal independence payment after a prolonged stay in Poland caused by Covid travel restrictions. The Secretary of State refused the claim because ES had not been present in Great Britain for 104 of the preceding 156 weeks.

The First-tier Tribunal dismissed her appeal, holding that Regulation (EC) No 883/2004 had been revoked and could not satisfy regulation 22(b) of the Social Security (Personal Independence Payment) Regulations 2013. This was a rehearing following an earlier remittal by the Upper Tribunal. The issue was whether the Withdrawal Agreement caused Regulation 883/2004 to apply so as to engage regulation 22.

1. The appeal was allowed. The First-tier Tribunal erred in law and its decision was set aside. The Upper Tribunal re-made the decision, directing the Secretary of State to process ES’s claim on the basis that she satisfied regulation 22 of the Social Security (Personal Independence Payment) Regulations 2013.

2. The First-tier Tribunal had misconstrued the Social Security Co-ordination (Revocation of Retained Direct EU Legislation and Related Amendments) (EU Exit) Regulations 2020. Regulation 3(a) revoked Regulation (EC) No 883/2004 only as retained direct EU legislation. It did not revoke the Regulation itself, which the United Kingdom had no power to revoke. The tribunal also failed to explain why Regulation 883/2004 remained identified in section 84 of the Welfare Reform Act 2012 as a relevant EU Regulation.

3. Regulation 22 has three cumulative conditions. ES did not meet the ordinary presence condition in regulation 16(b), but the Secretary of State accepted that she was habitually resident in Great Britain and had a genuine and sufficient link to the United Kingdom social security system.

4. ES was within Title III of the Withdrawal Agreement as a dependent ascending-line family member of her daughter, a Union citizen subject to United Kingdom legislation at the end of the transition period. Article 31 provides that the rules and objectives of Regulation 883/2004 apply to persons covered by that Title. Although Article 31 does not state that the Regulation itself applies, that was sufficient to meet the word “applies” in regulation 22(b). The contrary interpretation would render the statutory references to the Regulation redundant.

• Upper Tribunal (Administrative Appeals Chamber): Allowed ES’s appeal in [2024] UKUT 97 (AAC), set aside the First-tier Tribunal’s rehearing decision for error of law, and re-made the decision.
• First-tier Tribunal (Social Entitlement Chamber): At the rehearing, reference SC100/22/00762, dismissed ES’s appeal against the Secretary of State’s refusal of personal independence payment.
• Earlier Upper Tribunal proceedings: The earlier First-tier Tribunal decision was set aside and remitted for rehearing under reference UA-2022-SCO-000134-PIP.