The claimant challenged as incompatible with EU law, the Regulations which restricted the entitlement to state pension credit to those entitled to reside in the UK.
Held: The appeal failed (Majority). The conditions imposed by the Regulations were indirectly discriminatory. There was not an exact correspondence between the advantaged and disadvantaged groups and the protected characteristic, as some of those distinguished by their nationality were not disadvantaged, although others were.
A non-member state is not within the protection of articles 18 and 21(2) in any circumstances. Lady Hale said: ‘This is not a general prohibition of discrimination on grounds of nationality. Only the nationals of member states are protected. Discrimination against third country nationals is not prohibited. Indeed it is positively expected. The underlying purpose is to promote the objects of the Union and in particular the free movement of workers between the member states and the free establishment of businesses within them.’
However, Lord Walker dissenting, said that the discrimination was a proportionate response to the legitimate aim of protecting the UK public purse. This justification was independent of the claimant’s nationality, and the discrimination was justified.
Lord Hope, Deputy President, Lord Rodger, Lord Walker, Lady Hale, Lord Brown
 UKSC 11, UKSC 2009/0177,  AACR 34,  3 All ER 1,  PTSR 680,  1 WLR 783
Bailii, Bailii Summary, SC Summary, SC
State Pension Credit Regulations 2002 (SI 2002/1792) 2, Council Regulation (EC) No 1408/71 3(1)
England and Wales
At CA – Patmalniece v Secretary of State for Work and Pensions CA 25-Jun-2009
The appellant challenged the refusal of the grant to her of state pension credit.
Held: Her appeal failed. . .
Cited – Schnorbus v Land Hessen ECJ 7-Dec-2000
ECJ Equal treatment for men and women – Rules on access to practical legal training in Land Hesse – Priority for applicants who have completed military or civilian service
Jacobs AG said: ‘The discrimination . .
Cited – Bressol and Others, Chaverot and Others v Gouvernement de la Communaute francaise ECJ 25-Jun-2009
ECJ Opinion – Free Movement of Persons – Higher education Public health Numerus clausus Residence requirement Equal treatment Principle of non’discrimination Justifications
Sharpston AG said: ‘I take there . .
Cited – Zalewska v Department for Social Development HL 12-Nov-2008
(Northern Ireland) The claimant challenged the rules restricting payment of benefits to nationals from the 8 latest European Accession states to those with an unbroken 12 month working record. The applicant came from Poland and worked at two . .
Cited – Vera Hoeckx v Openbaar Centrum Voor Maatschappelijk Welzijn, Kalmthout ECJ 27-Mar-1985
Minimum means of subsistence – Concept of social advantage or benefit. General social benefits of a kind not listed in article 4(1) were held not to constitute a social security benefit within the meaning of Regulation 1408/71 . .
Cited – James v Eastleigh Borough Council HL 14-Jun-1990
Result Decides Dscrimination not Motive
The Council had allowed free entry to its swimming pools to those of pensionable age (ie women of 60 and men of 65). A 61 year old man successfully complained of sexual discrimination.
Held: The 1975 Act directly discriminated between men and . .
Cited – Borawitz v Landesversicherungsanstalt Westfalen ECJ 21-Sep-2000
(Free movement of persons) (Judgment) Social security for migrant workers – Equal treatment – National legislation fixing, in connection with the transfer abroad of retroactive pension payments, a higher minimum amount than that paid within the . .
Cited – Khalil, Chabaan, Osseili v Bundesantalt fir Arbeit ECJ 11-Oct-2001
(Social security for migrant workers) Social security – Article 51 of the EEC Treaty (later Article 51 of the EC Treaty and now, after amendment, Article 42 EC) – Article 2(1) of Regulation (EEC) No 1408/71 – Stateless persons – Refugees . .
Cited – Collins v Secretary of State for Work and Pensions ECJ 23-Mar-2004
ECJ Freedom of movement for persons – Article 48 of the EC Treaty (now, after amendment, Article 39 EC) – Concept of ‘worker’ – Social security allowance paid to jobseekers – Residence requirement – Citizenship . .
Cited – Trojani v Centre public d’aide sociale de Bruxelles (CPAS) ECJ 7-Sep-2004
EAT Freedom of movement of persons – Citizenship of the European Union – Right of residence – Directive 90/364/EEC – Limitations and conditions – Person working in a hostel in return for benefits in kind – . .
Cited – Regina (Bidar) v Ealing London Borough Council and Another ECJ 15-Mar-2005
Europa (Grand Chamber of the Court of Justice of the European Union) Citizenship of the Union – Articles 12 EC and 18 EC – Assistance for students in the form of subsidised loans – Provision limiting the grant of . .
Cited – Hartmann v Freistaat Bayern ECJ 18-Jul-2007
Europa (Grand Chamber) (Free Movement Of Persons) Frontier worker Regulation (EEC) No 1612/68 Transfer of residence to another Member State Non-working spouse Child-raising allowance Not granted to spouse Social . .
Cited – Wood (Principles Of Community Law) ECJ 5-Jun-2008
ECJ Article 12 EC Discrimination on grounds of nationality Compensation awarded by the Fonds de garantie des victimes des actes de terrorisme et d’autres infractions Not included. . .
Cited – Rita Frilli v Belgian State ECJ 22-Jun-1972
Preliminary Questions – Guaranteed income for old people. . .
Cited – Roque v The Lieutenant Governor of Jersey ECJ 16-Jul-1998
(Judgment) Free movement of persons – Act of Accession 1972 – Protocol No 3 concerning the Channel Islands and the Isle of Man – Jersey . .
Cited – Abdirahman v Secretary of State for Work and Pensions CA 5-Jul-2007
The appellants were economically inactive EEA nationals who were lawfully present in the UK and who appealed against refusal of their claims for social security benefits under Articles 12 18.
Held: The appeal failed. For Art 12, the benefits . .
Cited – Kaczmarek v Secretary of State for Work and Pensions CA 27-Nov-2008
The claimant entered the UK as a student coming from Poland. She then worked as a kitchen maid, but having left that job on becoming a mother was refused income support. She later returned to work. She said that the rules which denied her benefit . .
Cited – Prix v Secretary of State for Work and Pensions SC 31-Oct-2012
The claimant had come from France to England, and worked as a teaching assistant. She set out on a course to train as a teacher but became pregnant, gave up the course, and eventually gave up work temporarily. Her claim to Income Support was refused . .
Cited – Bull and Another v Hall and Another SC 27-Nov-2013
The court was asked ‘Is it lawful for a Christian hotel keeper, who sincerely believes that sexual relations outside marriage are sinful, to refuse a double-bedded room to a same sex couple?’ The defendants (Mr and Mrs Bull) appealed against a . .
Cited – The United States of America v Nolan SC 21-Oct-2015
Mrs Nolan had been employed at a US airbase. When it closed, and she was made redundant, she complained that the appellant had not consulted properly on the redundancies. The US denied that it had responsibility to consult, and now appealed.
Cited – Taiwo and Another v Olaigbe and Others SC 22-Jun-2016
The claimants had been brought here illegally to act as servants for the defendants. They were taken advantage of and abused. They made several claims, but now appealed against rejection of their claims for discrimination. The court was asked . .
Lists of cited by and citing cases may be incomplete.
Updated: 02 November 2021; Ref: scu.430602