Upper Tribunal (Administrative Appeals Chamber), March 30, 2016, [2016] UKUT 149 (AAC)

Resolution Date:March 30, 2016
Issuing Organization:Upper Tribunal (Administrative Appeals Chamber)
Actores:MM and SI v Secretary of State for Work and Pensions (DLA) (European Union law : other)

MM and SI v Secretary of State for Work and Pensions (DLA)

[2016] UKUT 0149 (AAC)






Before: Upper Tribunal Judge K Markus QC


The decision of the Upper Tribunal is to allow the appeals.

The decision of the First-tier Tribunal made on 31 October 2014 under number SC154/14/00966 was made in error of law. Under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007 I set that decision aside and remake the decision in the following terms:

At the time of the Respondent's decisions (24 September 2013 and 19 September 2013) the Appellants satisfied the conditions as to residence and presence in Great Britain in accordance with section 71(6) Social Security Contributions and Benefits Act 1992.


Appellants: Mr Michael Spencer (Legal Officer, Child Poverty Action Group)

Respondent: Mr Alasdair Henderson (Counsel)



  1. These appeals raise the important question whether the application to refugees and their family members of the past presence test (``PPT'') in regulation 2(1)(iii) of the Social Security (Disability Living Allowance) Regulations 1991 amounts to unlawful indirect discrimination contrary to the provisions of Article 28 of EU Directive 2004/83/EC (the Qualification Directive), or Article 14 of the European Convention on Human Rights (ECHR).

  2. I have decided that the PPT is unlawfully discriminatory on both bases and should be disapplied. This means that, if they meet the substantive conditions of entitlement to DLA, the Appellants should at the time of the decisions have been awarded DLA.

    Factual Background

  3. For present purposes, the relevant facts can be stated very briefly.

  4. Both appellants were children at the time of the decisions which are the subject of these appeals. They both have substantial disabilities. MM is a Ugandan national. His mother was granted refugee status in the UK in March 2012. MM joined his mother in April 2013 with entry clearance on the basis of family re-union. A claim was made on his behalf for DLA in August 2013. SI is a Somali national. She arrived in the UK with her mother and sister in August 2013 and they were given indefinite leave to remain on arrival. A claim was made on her behalf for DLA in August 2013. The Secretary of State refused both appeals because neither Appellant had been present in the UK for 104 weeks.

  5. They appealed, through their mothers who are their appointees, to the First-tier Tribunal on the ground that the PPT discriminated against them contrary to Article 28 of the Qualification Directive.

    The First-tier Tribunal's decision

  6. On 31 October 2014 the First-tier Tribunal doubted that Article 28 of the Qualification Directive was directly effective but it did not need to determine that point because it dismissed the appeals for other reasons. It decided that DLA was social assistance for the purpose of the Qualification Directive and that the PPT discriminated against refugees and those whose status is dependent on their family relationship to refugees, as compared with UK nationals. The measure was indirectly discriminatory but the tribunal found that the discrimination was justified. It decided that the aim of the PPT was to direct benefits to those who are permanent long term residents of the UK, that the imposition of a requirement for a period of residence was a rational means of achieving that aim and that the objective and the PPT were sufficiently connected for it not to be considered manifestly without reasonable foundation as a means of achieving that aim. The tribunal distinguished the case of Stewart v SSWP C-503/09, [2012] PTSR 1 on the ground that, here, the legitimate aim was not to establish a genuine link with the UK (as in Stewart) but was to direct benefits to permanent long-term residents of the UK.

    The issues in the appeal to the Upper Tribunal

  7. On the basis of permission given by the First-tier Tribunal and supplemented by the Upper Tribunal, the issues in this appeal were identified as follows:

    Discrimination contrary to the Qualification Directive

    a) Whether Article 28 of the Qualification Directive has direct effect.

    b) Whether DLA is social assistance for the purpose of Article 28.

    c) Whether the PPT indirectly discriminates against refugees and their family members.

    d) If the test is discriminatory, whether the discrimination is justified.

    Discrimination contrary to Article 14 ECHR

    e) Whether DLA is within the ambit of Article 1 Protocol 1

    f) Whether the PPT indirectly discriminates against refugees and their family members.

    g) Whether the PPT can be justified under Article 14

  8. At the hearing I raised with the parties whether there should be a reference to the CJEU on the questions of direct effect or whether DLA was social assistance within the Directive. Mr Spencer submitted that none was needed, but Mr Henderson requested that the Secretary of State be allowed time to consider the matter. I gave permission to the representatives to make further written submissions on this and other specific points that had arisen in the course of the hearing.

  9. In his subsequent written submissions, Mr Henderson said that the Secretary of State's position was that no reference to the CJEU was required because the Secretary of State conceded that ``Article 28 was in principle capable of having direct effect in respect of a claim by the Appellants for social assistance within the meaning of Directive 2004/83/EC... in the event that the UT finds that DLA does constitute social assistance, the Respondent concedes that Article 28 could be relied upon directly by the Appellants.'' I do not understand what is meant by the use of the words ``in principle'' but, read as a whole, this is a concession that Article 28 is directly effective for these purposes. For reasons which I will briefly explain under the heading ``Discussion'', that concession is correctly made and I so find.

    The legislative framework

    Domestic legislation

  10. Section 71 Social Security Contributions and Benefits Act 1992 makes provision for disability living allowance (DLA). By section 71(6) a clamant must satisfy prescribed conditions as to residence and presence in Great Britain. Those conditions are to be found in regulation 2 of the Social Security (Disability Living Allowance) Regulations 1991 (``the DLA Regulations''):

    ``2 (1) Subject to the following provisions of this regulation and regulations 2A and 2B, the prescribed conditions for the purposes of section 71(6) of the Act as to residence and presence in Great Britain in relation to any person on any day shall be that-

    (a) on that day-

    (i) he is habitually resident in the United Kingdom, the Republic of Ireland, the Isle of Man or the Channel Islands; and

    (ib) he is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999 or section 115 of that Act does not apply to him for the purposes of entitlement to disability living allowance by virtue of regulation 2 of the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000, and

    (ii) he is present in Great Britain; and

    (iii) he has been present in Great Britain for a period of, or for periods amounting in the aggregate to, not less than 104 weeks in the 156 weeks immediately preceding that day.


  11. There is provision for exemptions from regulation 2(1)(a)(ii) in the case of absence from Great Britain of a serving member of the forces and those in other specified occupations, and absences for medical treatment. There is another exemption provided by regulation 2A, which was introduced following the decision of the Court of Justice in Stewart, as follows:

    ``2A (1) Regulation 2(1)(a)(iii) shall not apply where on any day--

    (a) the person is habitually resident in Great Britain;

    (b) a relevant EU Regulation applies; and

    (c) the person can demonstrate a genuine and sufficient link to the United Kingdom social security system.''

    The Qualification Directive

  12. The Qualification Directive is headed as being ``on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international legal protection and the content of the protection granted''.

  13. There are a number of relevant recitals to which I return later. Of particular importance is Recital 33 provides:

    ``Especially to avoid social hardship, it is appropriate, for beneficiaries of refugee or subsidiary protection status, to provide without discrimination in the context of social assistance the adequate social welfare and means of assistance.''

  14. This is given effect by Article 28:

    ``Social welfare

  15. Member States shall ensure that beneficiaries of refugee or subsidiary protection status receive, in the Member State that has granted such statuses, the necessary social assistance, as provided to nationals of that Member State.

  16. By exception to the general rule laid down in paragraph 1, Member States may limit social assistance granted to beneficiaries of subsidiary protection status to core benefits which will then be provided at the same levels and under the same eligibility conditions as nationals.''

  17. The effect of Article 28 is extended to the family members of those with refugee or subsidiary protection status by Article 23(2) of the Directive which provides that:

    ``Member states shall ensure that family members of the beneficiary of refugee status or subsidiary protection status, who do not individually qualify for such status, are entitled to claim the benefits referred to in Articles 24 to 34, in accordance with national procedures and as far as it is compatible with the personal legal status of the family member.

    In so far as the family members of beneficiaries of subsidiary...

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