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‘UK wrongly insisted on Comprehensive Sickness Insurance for years’

Ros
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Really interesting Free Movement article by Professor Charlotte O’Brien about recent CJEU decision C-247/20 -

UK wrongly insisted on Comprehensive Sickness Insurance for years, EU court finds

As Tom Royston comments -

‘This points out there have been several recent social security cases showing very large scale unlawful treatment of EU nationals (eg VI from the ECJ in 2022, Gubeladze from the UKSC in 2019) - with v little political impact or other consequence for the govt.

Here’s also rightsnet summary -

CJEU rules that requirement for non-EEA national mother of EEA national child to have comprehensive sickness insurance did not apply once child acquired permanent right to reside and that, in period before that, requirement was met by affiliation to NHS

shawn mach
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More analysis .. from Dr Sylvia de Mars at Newcastle University:

http://eulawanalysis.blogspot.com/2022/03/a-possibly-pointless-postscript-cjeu.html

Elliot Kent
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Yes it is rather extraordinary. The CSI requirement has been understood as not including the ability to access NHS treatment for more than a decade - its established doctrine. The CJEU does away with it in a, typically inscrutable, three paragraph aside in a case which didn’t directly raise it as a question. After we have already left the EU of course.

HB Anorak
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This has immediate consequences for a UT case I’ve been involved in for the past couple of years.  I wrote an appeal sub for a Council on a sad case where the claimant who is a European pensioner, led a sort of Walter Mitty existence pursuing various hopeless business ventures which existed more in his head than anywhere else, but was supported for 30 years by money from his wealthy family back home in the EU.  By 2016, his wealthy relatives had died off and he was pretty much destitute, so claimed HB and Pension Credit.  With the best will in the world the Council could not see that had ever been in effective and genuine work; and despite having had sufficient resources for many years he had never had comprehensive sickness insurance.  with reluctance and regret the Council refused his claim and the decision was confirmed by the FtT.  He appealed to the UT and the Judge granted permission over two issues:

- some complicated and tenuous arguments about whether another member state might be competent under the coordination rules, but that didn’t come to anything in the end
- proportionality

The Secretary of State was joined as second respondent and it is fair to say that she is prepared to die on a hill over proportionality: just not having it.  My role as Council rep has evolved to the point where were were making counter-submissions in favour of proportionality: no-one would be happier than the Council if the old boy wins his appeal.  But that will be over the dead and defiant body of the Secretary of State.

Gave me great pleasure yesterday to write a very short submission conceding that CSI is satisfied according to para 69 of VI.  Also, because the appeal predates the court’s “relevant determination”, the anti test case rules don’t apply.  Hooray!  Just waiting for the judge to rubberstamp it now.  Never been happier to lose an appeal.

Mr Jim
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I had a UC case a few years ago that went to appeal and the appeal judge ruled that the service-user was not a Chen carer as neither he or his child had Comprehensive Health Insurance. Is there any scope for asking for this case to be looked at again by either UC or HMCTS?

Jim

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HB Anorak - 17 March 2022 12:05 PM

This has immediate consequences for a UT case I’ve been involved in for the past couple of years….... Never been happier to lose an appeal.

Whilst working as a WRA for an LA that shall remain nameless, I had one that was at the UT for 5 years - 2 oral hearings and a couple of conferences in chambers. Appellant had given up work to care for her disabled British partner and had been supported by his income until his death. Had also saved the UK something well into the tens of thousands as assessed care packages that were on offer were never taken up due to her providing care. It ran for so long in part because Brey and Mirga were handed down whilst the case was at the UT.

I did make (what I considered) very good subs to the effect that the case was one that fell within the very small scope for proportionality arguments that was left following Mirga. But that was just at the point I was leaving the LA - and I discovered some months later that the LA had withdrawn the appeal!

Of course, if we’d had VI back then, the appeal would have been allowed some time before the judgement in Mirga was handed down…...

Glenys
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Considering self sufficiency route to Right to Reside for those with Pre settled status or a pending application - is it absolutely clear that having access to the NHS is equivalent to Comprehensive Sickness Insurance?
I’m not entirely clear what the phrase “affiliated to such a public sickness insurance system in the host Member State” actually means.

And is there a further hurdle in terms of not being an unreasonable burden on the state?
Para 69 talks about affiliation to the NHS not being an unreasonable burden in the particular circumstances of the case - but could it still be a burden in other cases?
“Furthermore, in a situation, such as that in the main proceedings, in which the economically inactive Union citizen at issue is a child, one of whose parents, a third-country national, has worked and was subject to tax in the host State during the period at issue, it would be disproportionate to deny that child and the parent who is his or her primary carer a right of residence, under Article 7(1)(b) of Directive 2004/38, on the sole ground that, during that period, they were affiliated free of charge to the public sickness insurance system of that State. It cannot be considered that that affiliation free of charge constitutes, in such circumstances, an unreasonable burden on the public finances of that State.”

Any thoughts much appreciated
Thank you

Ros
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I think it is clear that having access to the NHS is sufficient to count as comprehensive sickness insurance and also that it applies in all cases where the person has access to the NHS- see para 69 -

‘... although the host Member State may, subject to compliance with the principle of proportionality, make affiliation to its public sickness insurance system of an economically inactive Union citizen, residing in its territory on the basis of Article 7(1)(b) of Directive 2004/38, subject to conditions intended to ensure that that citizen does not become an unreasonable burden on the public finances of that Member State, such as the conclusion or maintaining, by that citizen, of comprehensive private sickness insurance enabling the reimbursement to that Member State of the health expenses it has incurred for that citizen’s benefit, or the payment, by that citizen, of a contribution to that Member State’s public sickness insurance system…, the fact remains that, once a Union citizen is affiliated to such a public sickness insurance system in the host Member State, he or she has comprehensive sickness insurance within the meaning of Article 7(1)(b).’ (paragraph 69)

Glenys
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Thanks Ros.
I was also a bit concerned that it would only apply retrospectively and before 1st Jan 2021.
So an EEA national/family member (including later joining family members) with pre settled status or a Certificate of Application will be able to rely on self sufficiency as a qualifying right to reside for benefit purposes without CSI - assuming they fit the criteria of self sufficient?

Elliot Kent
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I think the case can safely be relied on as authority that the CSI requirement is met where a person has NHS access. Most obviously that would be used for people arguing for permanent residence by reference to past periods as students/self-sufficient people or family thereof. It could be used by people with pre-settled status or pending EUSS applications who are currently students or self-sufficient (or family thereof) although these groups are naturally less likely to be claiming most benefits.

The court’s use of the terminology ‘affiliation’ to a ‘public sickness insurance system’ is somewhat arcane but it does need to be borne in mind that its decisions need to be published and comprehended in different languages and applicable across the EU. It is obvious that the Court had NHS access firmly in mind. The court’s discussion at para 69 of the idea of economically inactive EU nationals having reduced or limited access to public health systems is really just theoretical. As the blog linked to above notes, no such restrictions exist in the UK.

Strictly as the decision was made after the end of the Implementation Period, it does not form part of the canon of ‘retained EU case law’ which binds the lower courts as a matter of domestic law. However it remains about as highly persuasive as it is possible for a decision to be. This is particularly in view of the fact that the case is a pre-IP referral to the CJEU from a UK court and therefore has binding effect under the terms of Art 86 and 88 of the Withdrawal Agreement and because it touches on issues of citizens rights under the Withdrawal Agreement which remain within the jurisdiction of the CJEU for 8 years post-IP as under Art 158.

So in other words, I don’t think there is much to worry about.

Glenys
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Very clearly explained - thank you!

Elliot Kent
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HB Anorak - 17 March 2022 12:05 PM

Just waiting for the judge to rubberstamp it now.  Never been happier to lose an appeal.

And now duly rubber-stamped:
https://www.gov.uk/administrative-appeals-tribunal-decisions/wh-v-powys-county-council-and-secretary-of-state-for-work-and-pensions-2022-ukut-203-aac

 

Rhian 123
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Hi

I am working with an Italian National who arrived in the UK in 2011. He made a claim for PIP in 2015, and was only awarded PIP Mobility, DLC was not awarded as the decision letter states that he was receiving sickness benefit or pension from Italy.. He was not. We have a letter from the Italian authorities from 2013, stating that his pension is suspended. In the last few years he has been in receipt of UC LWCRA. He has settled status, and has a HA shared ownership property and mortgage, he is a resident in the UK. My question is this is an error in law, and would PIP accept a MR for a 2015 decision, or is there another approach that could be taken?,