Proportionality post Mirga

Client’s UC appeal has just been adjourned to gather more evidence. The main issue is whether client’s EEA parent (client is a non-EEA adult dependant) had a qualifying right to reside at the time of client’s UC claim. Among our arguments is that parent stopped working to care for client, who is seriously ill, and so parent should retain worker status.

The adjournment notice says that the next hearing should be in front of a District Tribunal Judge because the appeal involves proportionality issues, and references the Mirga case.

What should I read into this?

There is no provision in EU law for worker status to be retained where work is left in order to provide care. Your argument, whether you have framed it like this or not, is an appeal to the idea that it would be disproportionate for the status to be lost.

These types of arguments built on proportionality in the individual case did have some success but were essentially nuked by the Supreme Court in Mirga v SSWP [2016] UKSC 1. In that case, the Court held (broadly) that individualised proportionality assessments were not part of the decision making process except perhaps in an exceptional case. Broadly speaking, proportionality can only now be used to fill an accidental omission (a lacuna) in the regulations.

So the DTJ is inviting you to explain why your argument survives this decision. You will also probably want to address JS v SSWP (IS) [2019] AACR 24; [2019] UKUT 135 (AAC) among other cases dealing with post-Mirga proportionality.

Thanks Elliot. I found this: :
https://www.housing-rights.info/03_4_EEA_workers.php

“The DWP Guidance cites CIS/3182/2005 in support of its view that the illness must be that of the worker. However, the reported decision R(IS)4/09 implies that this issue is fact-sensitive. In this case the worker retained their status while caring for their temporarily disabled partner and it was indicated that a similar outcome may have been reached if they had been caring for a sick child.”

Although the link to the case isn’t working, it can be found here:
https://www.rightsnet.org.uk/welfare-rights/caselaw/item/Right-to-reside-of-EU-citizen-leaving-work-to-care-for-her-non-EEA-national

Do you think this decision has in effect been overtaken by Mirga ?

I don’t think the article linked is accurately describing the effect of R(IS) 4/09. I think the point that the temporary incapacity is that of the worker is clear (see e.g. JS op cit. at para 43). In that case, Judge Rowland was saying that there was an identifiable lacuna and proportionality came into play.

I suppose that the case has not been formally overruled by Mirga and it may be possible to argue that the two cases can be distinguished but I think you would have a degree of difficulty in supporting the approach in R(IS) 4/09 if it went to UT.

Here is a link since the OSSCS website seems to be down.
https://www.bailii.org./cgi-bin/format.cgi?doc=/uk/cases/UKSSCSC/2007/CIS_408_2006.html&query;=(CIS/408/2006)

Happily the DWP have revised their decision before the next appeal hearing, and agreed that the client’s parent did after all have a qualifying right to reside when the client claimed UC back in October 2019. (Nothing to do with proportionality - parent simply recognised as having acquired a permanent right to reside.)

If her claim had been accepted the client would almost certainly have been accepted at the time as having LCWRA, so that she would have been getting the LCWRA element from January 2020.

What is the best basis on which to argue that client should now get a backdated payment of the LCWRA element with effect from January?

James Craig - 03 November 2020 12:58 PM

What is the best basis on which to argue that client should now get a backdated payment of the LCWRA element with effect from January?

You will need to wait for the WCA actually to be conducted and then if they don’t pay it from when you say it should be paid from, you would MR that.