Right to reside

I have a client who would have a permanent right to reside following TG v SSWP (PC) [2015] UKUT 0050 (AAC). He could then access JSA/ Housing Benefit etc.  THe SSWP has said that the case is being challenged by the DWP and requested that the appeal be stayed until there is a final decision. Is there a way to have payment on account in these circumstances?  It seems unjust that the client could be refused benefit for years and it could turn out he/she was actually entitled all along.  Ruth

Just found earlier thread on part of this issue (i.e. whether or not lawful to stay case) and will look at the details of the case and possibly contact Tom Royston or Martin Williams.  However, would still appreciate any comments on possibility of interim relief where there is a stay Ruth

For my part, I think there is quite a compelling argument that interim relief should be available in a case concerning treaty rights where your client already has the benefit of a decision from a court of record. In other jurisdictions, the courts have been prepared, albeit reluctantly,to suspend the effect of even Acts of Parliament whilst issues of EU law are settled (as in Factortame) and it seems absurd that administrative decisions concerning payment of subsistence benefit are treated as inviolable when the same issues are raised.

Unfortunately, the FTT doesn’t seem to have a jurisdiction to grant interim relief (and even if it did, it would be unenforcable). Judicial review would seem to be the only route forward.

Hi - had a chat with Martin about this -

In order to get interim relief, best to have decision that claimant is entitled to benefit so need to try and persuade tribunal that shouldn’t stay appeal.

Has DWP formally served notice that they want case stayed for purposes of section 26(2) of the Social Security Act 1998? If not, can argue that tribunal not under any duty to stay.

Even if notice has been served, can argue, referencing ECJ decision in Factortame (mentioned by Elliot), that tribunal obliged to disapply section 26(2) as national courts must ‘ensure the legal protection which persons derive from the direct effect of provisions of community law’ and have the power to set aside national legislation that prevents them from doing so (paras 19 and 20).

Once have a decision, can argue that claimant should be given interim payments by DWP pending outcome of appeal to Court of Appeal - see conclusion of Factortame where ECJ found that UK government bound to provide interim relief whilst awaiting outcome of referral by House of Lords to ECJ.

Here’s a link to Factortame -

http://curia.europa.eu/juris/showPdf.jsf?text=&docid=96746&pageIndex=0&doclang=en&mode=lst&dir;=&occ=first&part=1&cid=333888

cheers Ros

Thank you Ros, the information and the link to Factortame is really helpful.  The DWP hasn’t quoted section 26. It has only requested “If the tribunal finds that a determination of Mr V’s right to reside relies solely on this judgement, that this case be cisted until a final ruling is made on the aforementioned judgement.”  So it looks as if I first have to establish his right to reside (which isn’t waterproof even if we start from August 2010 when his claim for JSA was refused), and then argue that the Tribunal should not “cist” and, then, if it does, think about a judicial review?  Ruth