Category: Benefits

Cornwall Council, Regina (on The Application of) v Secretary of State for Health and Somerset County Council: SC 8 Jul 2015

PH had severe physical and learning disabilities and was without speech, lacking capacity to decide for himself where to live. Since the age of four he received accommodation and support at public expense. Until his majority in December 2004, he was living with foster parents in South Gloucestershire. He then lived in two care homes in the Somerset area. There was no dispute about his entitlement to that support, initially under the Children Act 1989, and since his majority under the National Assistance Act 1948. The issue was which authority should be responsible?
Held: The appeal was allowed (Wilson L dissenting). The decision-maker’s reasons for selecting Cornwall cannot be supported. The writer started, not from an assessment of the duration and quality of PH’s actual residence in any of the competing areas, but from an attempt to ascertain his ‘base’, by reference to his relationships with those concerned. In deciding what was the ordinary residence of an adult without mental capacity to allow a decision as to where he might live, the test was not whether because of incapacity he was to be treated as might a child and that his ordinary residence was that of his parents, despite his only occasional visits with them.

Lady Hale, Deputy President, Lord Wilson, Lord Carnwath, Lord Hughes, Lord Toulson
[2015 UKSC 46, [2015] WLR(D) 298, [2015] BLGR 503, [2015] HLR 32, [2015] 3 FCR 347, [2016] AC 137, (2015) 18 CCL Rep 497, [2015] 3 WLR 213, (2015) 145 BMLR 1, UKSC 2014/0092, UKSC 2014/0109
Bailii, WLRD, Bailii Summary, SC, SC Summary
Children Act 1989, National Assistance Act 1948 21, Ordinary Residence Disputes (National Assistance Act 1948) Directions 2010
England and Wales
Citing:
At first Instance – Cornwall Council, Regina (on The Application of) v Wiltshire Council and Others Admn 21-Dec-2012
Dispute as to which council had obligation to support a young disabled man. . .
Appeal from – Cornwall Council, Regina (on The Application of) v Secretary of State for Health and Others CA 18-Feb-2014
The court considered how local authorities were to decide whether a citizen due to receive certain kinds of assistance was resident in or had the closest connection with a particular authority. In this particular case the issue arose in respect of a . .
Cited – In re P (GE) (An infant) CA 1965
A stateless child was taken by his father away from the mother in England to Israel.
Held: The wardship jurisdiction of the Court of Chancery extended to any child ‘ordinarily resident’ in this country. An infant of British nationality whether . .
Cited – Regina v Barnet London Borough Council, Ex parte Shah HL 16-Dec-1982
The five applicants had lived in the UK for at least three years while attending school or college. All five were subject to immigration control, four had entered as students with limited leave to remain for the duration of their studies, and the . .
Cited – Regina v Waltham Forest, Ex parte Vale 11-Feb-1985
The court had to decide what was the ordinary reference under the 1948 of an adult without capacity. V had been in residential care in Ireland for over 20 years, but having left there had been with her mother for two weeks. The parties argued the . .
Cited – Mohamed v Hammersmith and Fulham London Borough Council HL 1-Nov-2001
Mrs M came to England in 1994 living first in Ealing and then Hammersmith. Mr M came later and lived elsewhere in Hammersmith. Hammersmith gave them jointly temporary accommodation, first in a hotel and then in a flat. They then applied under . .
Cited – Hertfordshire County Council, Regina (on The Application of) v JM CA 15-Feb-2011
The court was asked which local authority had responsibility to provide support to a patient on his discharge after a period of detention under section 3 of the 1983 Act. . .
Cited – A v A and another (Children) (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) SC 9-Sep-2013
Acquisition of Habitual Residence
Habitual residence can in principle be lost and another habitual residence acquired on the same day.
Held: The provisions giving the courts of a member state jurisdiction also apply where there is an alternative jurisdiction in a non-member . .
Cited – Inland Revenue v Cadwalader 1904
An American citizen, with his ordinary residence and indeed practising the law in New York, took a three-year lease of a furnished shooting lodge in Scotland. He resided at the shooting lodge for a period of two months in each year during the . .
Cited – Levene v Inland Revenue Commissioners HL 1928
Until 1919 Mr. Levene had been both resident and ordinarily resident in the UK. Then, for five years he spent about five months (mainly in the summer) each year, staying in hotels in the UK and receiving medical attention or pursuing religious and . .
Cited – Inland Revenue Commissioners v Lysaght HL 1928
The taxpayer, who was living in Ireland would come regularly to England for a total of less than three months a year, and would spend a week or so in a hotel for the purpose of board meetings. The House considered the meaning of the requirement of . .
Cited – In re F (Mental Patient: Sterilisation) HL 4-May-1989
Where a patient lacks capacity, there is the power to provide him with whatever treatment or care is necessary in his own best interests. Medical treatment can be undertaken in an emergency even if, through a lack of capacity, no consent had been . .
Cited – Regina v G and R HL 16-Oct-2003
The defendants, young boys, had set fire to paper and thrown the lit papers into a wheelie bin, expecting the fire to go out. In fact substantial damage was caused. The House was asked whether a conviction was proper under the section where the . .

Lists of cited by and citing cases may be incomplete.

Benefits, Local Government

Updated: 02 January 2022; Ref: scu.549905

DF v Disclosure and Barring Service: UTAA 23 Apr 2015

UTAA Tribunal Procedure and Practice (Including UT) : Evidence – Permission to appeal against the decisions of the Independent Safeguarding Authority dated 14 November 2012 and of the Disclosure and Barring Service dated 31 October 2013 is granted.
However, the appeals against those decisions and the decision of the Independent Safeguarding Authority dated 12 June 2012 are dismissed and so all three decisions are confirmed.

Upper Tribunal Judge Rowland
[2015] UKUT 199 (AAC)
Bailii
Safeguarding Vulnerable Groups Act 2006
England and Wales

Benefits

Updated: 30 December 2021; Ref: scu.546526

KB v Secretary of State for Work and Pensions (Employment and Support Allowance : Regulation 35): UTAA 10 Apr 2015

Employment and Support Allowance : Regulation 35 – The appeal is allowed. The decision of the First-tier Tribunal sitting at Kidderminster on 15 January 2013 under reference SC053/12/05518 involved the making of an error on a point of law and is set aside. The case is referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out in paragraph 15 of the Reasons.

[2015] UKUT 179 (AAC)
Bailii
England and Wales

Benefits

Updated: 30 December 2021; Ref: scu.546531

CH v Secretary of State for Work and Pensions: UTAA 17 Apr 2015

UTAA Tribunal Procedure and Practice (Including UT) – The decision of the First-tier Tribunal sitting at Harlow . . involved an error of law and is set aside.
The appeal is remitted for determination at an oral hearing before a completely differently constituted tribunal.
Incapacity benefit assessment

[2015] UKUT 187 (AAC)
Bailii
England and Wales

Benefits

Updated: 30 December 2021; Ref: scu.546525

NC v Secretary of State for Work and Pensions: UTAA 25 Mar 2015

UTAA Tribunal Procedure and Practice Including UT : Tribunal Jurisdiction – The claimant’s appeal is allowed. The decision of the First-tier Tribunal is set aside and there is substituted a decision to the effect that the claimant had limited capability for work on 19 April 2011.

[2015] UKUT 147 (AAC)
Bailii
England and Wales

Benefits

Updated: 30 December 2021; Ref: scu.546521

GB v Secretary of State for Work and Pensions (Employment and Support Allowance : Regulation 35): UTAA 23 Apr 2015

UTAA Employment and Support Allowance : Regulation 35 – The claimant’s appeal is allowed. The decision of the First-tier Tribunal dated 13 August 2013 is set aside and the case is remitted to a differently-constituted panel of the First-tier Tribunal to be re-decided.

[2015] UKUT 200 (AAC)
Bailii
England and Wales

Benefits

Updated: 30 December 2021; Ref: scu.546529

AA v Secretary of State for Work and Pensions: UTAA 15 Mar 2012

UTAA Jobseekers allowance – voluntary unemployment – ‘This case raises some interesting and difficult questions about the relevance to the provision in section 19(6)(a) of the Jobseekers Act 1995 for a ‘sanction’ (ie the identification of a period up to 26 weeks for which jobseeker’s allowance (JSA) is not payable) where a claimant has ‘lost his employment . . through misconduct’ of the provisions introduced into the Employment Rights Act 1996 by the Public Interest Disclosure Act 1998 (‘the public interest disclosure legislation’). Those provisions provide protections against an employer in certain circumstances for an employee who is a ‘whistleblower’.’

Mesher J
[2012] UKUT 100 (AAC)
Bailii
England and Wales

Benefits

Updated: 30 December 2021; Ref: scu.460236

Cachaldora Fernandez v Instituto Nacional de la Seguridad Social: ECJ 14 Apr 2015

ECJ Grand Chamber – Judgment – Reference for a preliminary ruling – Male and female workers – Equal treatment in matters of social security – Directive 79/7/EEC – Article 4 – Directive 97/81/EC – UNICE, CEEP and ETUC Framework Agreement on part-time work – Calculation of benefit – System for inclusion of contribution gaps – Part-time workers and full-time workers

V. Skouris, P
C-527/13, [2015] EUECJ C-527/13, ECLI:EU:C:2015:215
Bailii
Directive 97/81/EC, Directive 79/7/EEC

European, Benefits, Discrimination, Employment

Updated: 29 December 2021; Ref: scu.545372

Secretary of State for Work and Pensions (AA) v AK (European Union Law : Council Regulations 1408/71/Eec and (Ec) 883/2004 ): UTAA 4 Mar 2015

As the decision of the First-tier Tribunal (made on 6 June 2014 at Liverpool under reference SC064/14/00236) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007 and the decision is RE-MADE.
The decision is:
The claimant is not entitled to an attendance allowance on the claim made on 15 November 2013, because the allowance is a sickness benefit for which the United Kingdom is not the competent State.
The Secretary of State must pass the claimant’s claim to the Greek authorities.

[2015] UKUT 110 (AAC)
Bailii
England and Wales

Benefits, European

Updated: 29 December 2021; Ref: scu.545164

Belane Nagy v Hungary: ECHR 10 Feb 2015

ECHR Article 1 para. 1 of Protocol No. 1
Peaceful enjoyment of possessions
violation
Facts – In 2001 the applicant was granted a disability pension, which was withdrawn in 2010 after her degree of disability was re-assessed at a lower level using a different methodology. She underwent further examinations in the following years and was eventually assessed at the qualifying level. However, new legislation which entered into force in 2012 introduced additional eligibility criteria related to the duration of the social security cover. The applicant did not fulfil that criteria. As a consequence, although her degree of disability would otherwise have entitled her to a disability allowance under the new system, her applications were refused.
Law – Article 1 of Protocol No. 1: The modifications in the degree of the applicant’s assessed disability had resulted solely from successive changes in the methodology used and not from any improvement in her health, which remained unchanged. In 2012 the disability pension system was replaced by an allowance system, which contained new eligibility criteria. The applicant was found ineligible for that allowance not because she did not have the requisite degree of disability but because she did not have a sufficient period of social cover as required by the new rules. That was a condition which was virtually impossible for her to fulfil since she was no longer in a position to accumulate the requisite number of days. However, during her employment, the applicant had contributed to the social security system as required by law. This had prompted a social solidarity-based obligation by the State to provide her with disability care should a contingency occur. The Court endorsed the Constitutional Court’s view that allowances acquired by compulsory contributions to the social security scheme could partly be seen as ‘purchased rights’. The disability pension/allowance was thus an assertable right to a welfare benefit recognised under the domestic law to which Article 1 of Protocol No. 1 was applicable. That recognised legitimate expectation and the proprietary interests generated by the legislation of a Contracting State in force at the time of becoming eligible could not be considered extinguished by the fact that, under a new methodology, the applicant’s disability had been significantly scored down without any material change in her condition. In this regard, the existence of the applicant’s continued, recognised legitimate expectation to receive disability care was demonstrated by the fact that she was subject to periodic reviews of her degree of disability. Irrespective of the loss of her disability pension in 2010, her expectation had thus been legitimate and continuous. As to the question whether the legitimate expectation to receive disability care entailed the right not to have the eligibility criteria changed, the Court noted that the ethical guidelines set out in the World Health Organisation’s International Classification of Functioning, Disability and Health should not be used to deny established rights or restrict legitimate entitlements to benefits for individuals. Moreover, respect for the rule of law required the States to secure, on the basis of societal solidarity, a certain income for those whose working capacity fell below the statutory level provided they had made sufficient contributions to the scheme.
As regards proportionality, although States had a certain margin of appreciation in regulating access to disability care, once such care had been granted they could not go as far as depriving the entitlement of its very essence. In this respect, the Court noted that the applicant had been totally divested of her disability care instead of being subject to a reasonable and proportionate reduction. This course of events amounted to a drastic and unforeseeable change in the conditions of her access to disability benefits. The applicant had thus had to bear an excessive and disproportionate individual burden in the circumstance.
Conclusion: violation (four votes to three).
Article 41: EUR 5,000 in respect of pecuniary and EUR 5,000 in respect of non-pecuniary damage.

53080/13 – Legal Summary, [2015] ECHR 303
Bailii
European Convention on Human Rights

Human Rights

Updated: 29 December 2021; Ref: scu.545027

Kik v Staatssecretaris van Finacie: ECJ 19 Mar 2015

ECJ Judgment – Reference for a preliminary ruling – Social security – Regulation (EEC) No 1408/71 – Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons – National of a Member State, in which he resides, employed on a pipe-laying vessel flying the flag of another third State – Person initially employed by an undertaking established in the Netherlands and subsequently by an undertaking established in Switzerland – Work performed, in succession, on the continental shelf adjacent to a third State, in international waters and in the part of the continental shelf adjacent to certain Member States – Scope ratione personae of Regulation No 1408/71 – Determination of the legislation applicable

C-266/13, [2015] EUECJ C-266/13
Bailii
Regulation (EEC) No 1408/71

European, Benefits

Updated: 29 December 2021; Ref: scu.544892

MM and Another, Regina (on The Application of) v Secretary of State for Work and Pensions and Others: UTAA 9 Mar 2015

UTAA Equality Act – The applicants, who suffer from mental health problems, brought their claims for judicial review under the Equality Act 2010 (‘the Equality Act’) asserting that they were placed at a substantial disadvantage in comparison to claimants and recipients of Employment and Support Allowance (‘ESA’) who did not suffer from mental health problems in relation to (i) the processes of assessment and re-assessment for continuing entitlement to that benefit or, alternatively (ii) the process of assessing whether an existing entitlement to Incapacity Benefit would continue as an award of ESA.

Mr Justice Charles and Upper Tribunal Judges Edward Jacobs and Shelley Lane
[2015] UKUT 107 (AAC)
Bailii
England and Wales

Benefits, Discrimination

Updated: 29 December 2021; Ref: scu.544814

Smith v Secretary of State for Work and Pensions: CA 19 Mar 2015

The Appellant had been unemployed and in receipt of JSA for several years. He was required to do work under the MWA scheme, and he did so over four weeks, He commenced judicial review proceedings challenging the lawfulness of the MWA Regulations on various grounds. He was eventually given permission on a single ground, namely that the Regulations are ultra vires the provisions of section 17A.
In the meantime a similar challenge had been brought against another set of Regulations purportedly made under section

Richards, Underhill, Briggs LJJ
[2015] EWCA Civ 229
Bailii
Jobseekers Act 1995 17A, Jobseeker’s Allowance (Mandatory Work Activity Scheme) Regulations 2011
England and Wales

Benefits

Updated: 29 December 2021; Ref: scu.544722

Ministre de l’Economie et des Finances v De Ruyter: ECJ 26 Feb 2015

ECJ Judgment – Reference for a preliminary ruling – Social security – Regulation (EEC) No 1408/71 – Article 4 – Substantive scope – Levies on income from assets – General social contribution – Social debt repayment contribution – Social levy – Additional contribution to the social levy – Participation in the financing of compulsory social security schemes – Direct and sufficiently relevant link with some branches of social security

A. Tizzano, P
C-623/13, [2015] EUECJ C-623/13, ECLI:EU:C:2015:123
Bailii
Regulation (EEC) No 1408/71 4

European, Benefits

Updated: 28 December 2021; Ref: scu.543681

Raad van Bestuur van De Sociale Verzekeringsbank v Evans: ECJ 15 Jan 2015

ECJ Reference for a preliminary ruling – Determination of the social security legislation applicable to a worker – Regulation (EEC) No 1408/71 – Applicability – Employment of a national of a Member State at the consulate of a third State in the territory of another Member State in whose territory he resides – Vienna Convention on consular relations – Article 71(2) – National legislation according facilities, privileges and immunities to permanent residents

T. von Danwitz, P
[2015] EUECJ C-179/13, C-179/13
Bailii
Regulation (EEC) No 1408/71 71(2)
Citing:
Opinion – Raad van Bestuur van De Sociale Verzekeringsbank v Evans ECJ 19-Jun-2014
ECJ Opinion – Regulation (EEC) No 1408/71 – Determination of the legislation applicable to a worker in the field of social security – Applicability – Employment at the consulate of a non-Member State – Vienna . .

Lists of cited by and citing cases may be incomplete.

European, Benefits

Updated: 27 December 2021; Ref: scu.542613

Kent County Council, Regina (on The Application of) v The Secretary of State for Health and Others: CA 11 Feb 2015

The court was asked as to which of a number of local authorities should be responsible for funding the residential accommodation of a disabled adult pursuant to section 21 of the 1948 Act. In particular, it concerns the proper construction of section 24(5) which deems a person to be ordinarily resident in a local authority area when he is in fact ordinarily resident elsewhere.

Lord Dyson MR, Tomlinson, Burnett LJJ
[2015] EWCA Civ 81
Bailii
National Assistance Act 1948 21 24(5)
England and Wales

Local Government, Benefits

Updated: 27 December 2021; Ref: scu.542484

Office national de l’emploi v Melchior: ECJ 4 Feb 2015

ECJ Judgment – Reference for a preliminary ruling – Social security – Conditions governing eligibility for unemployment benefit in a Member State – Taking into account periods of work completed as a member of the contract staff of an institution of the European Union which is established in that Member State – Treatment of days of unemployment for which an allowance is paid under the Conditions of Employment of Other Servants of the European Communities as working days – Principle of sincere cooperation

Ilesic P
C-647/13, [2015] EUECJ C-647/13, ECLI:EU:C:2015:54
Bailii

European, Benefits

Updated: 27 December 2021; Ref: scu.542258

Gonzalez v Instituto Nacional De La Seguridad Social and Tesoreria General De La Seguridad Social: ECJ 21 Feb 2013

ECJ Article 48 TFEU – Social security for migrant workers – Regulation (EEC) No 1408/71 and (EC) No 883/2004 – Old-age and survivor’s insurance – Special provisions for the application of national legislation relating to old-age pensions – Calculation of benefits

A. Tizzano (Rapporteur), P
[2013] EUECJ C-282/11, [2013] 2 CMLR 34, [2013] WLR(D) 80, [2013] ICR 1193
Bailii, WLRD
Regulation (EEC) No 1408/71, TFEU 48, Regulation (EC) No 883/2004
Citing:
Opinion – Gonzalez v Instituto Nacional De La Seguridad Social and Tesoreria General De La Seguridad Social ECJ 13-Sep-2012
ECJ Opinion – Reference for a preliminary ruling – Regulation (EEC) No 1408/71 – Old-age pension – Calculation of benefits . .

Lists of cited by and citing cases may be incomplete.

European, Benefits

Updated: 27 December 2021; Ref: scu.541748