UK national and co-ordination rules

I thought I had worked this out in my head but I’m a bit confounded by a direction from the judge relating to UT decision B v SSWP [2017] UKUT 472 (AAC).

The client is a UK national who worked for 30 years in GB, moved to France and worked in self-employment for about a year before becoming too sick to work. He received a French sickness or disability benefit until he reached French retirement age at 60. He will be entitled to a UK state pension when he reaches pension age.

He claimed PIP shortly after moving back to Northumberland and the claim was immediately turned down on the past presence rules. DWP have so far failed to consider anything other than the bare past presence rules themselves and the fact that he was not physically present in the UK for 2 out of the previous 3 years.

I had thought that either the aggregation rules or reg 22 of the PIP regs would help but now I’m wondering if I’m wasting my time?

I don’t understand the relevance of B. That is a case about the right to reside in circumstances where an EEA national is seeking to rely on their relationship to a British Citizen who is returning to the UK after a period in the EU. Specifically, it discusses the Surinder Singh line of cases in the context of a British Citizen and EU national who were not married during their joint residence in another member state but then married on their return to the UK.

But as Judge Mitchell somewhat opaquely alludes to in paragraphs 67 and 68, PIP is not decided on a “right to reside” basis. If it were, your client would be fine - because they are a British national and therefore have a right to reside even ignoring the EU dimension.

PIP is decided on the basis of the past presence test (taking account of co-ordination rules) which is something else entirely and I can’t see how B assists in this respect.

Thank you Elliott, I was thinking that but then doubting myself. Head too full of Universal Credit.

On past presence, the case of Kavanagh might assist your client.

In a judgment handed down on 7 March 2019, the Court of Appeal confirmed the UT’s finding that the link was to the UK as whole and that reg 2A(1)(c) of the DLA Regulations (which cover the past presence test) should be interpreted as such. It also went on to find that on the facts such a link had been established as while ‘objective evidence of the link is plainly critical …evidence of the motives, intentions and expectations of the applicant are not to be ignored if they are relevant to proof of the link and are convincing’ [69].

Paul_Treloar_AgeUK - 24 April 2019 09:11 AM

On past presence, the case of Kavanagh might assist your client.

In a judgment handed down on 7 March 2019, the Court of Appeal confirmed the UT’s finding that the link was to the UK as whole and that reg 2A(1)(c) of the DLA Regulations (which cover the past presence test) should be interpreted as such. It also went on to find that on the facts such a link had been established as while ‘objective evidence of the link is plainly critical …evidence of the motives, intentions and expectations of the applicant are not to be ignored if they are relevant to proof of the link and are convincing’ [69].

Thanks Paul - already in my submission!