LA v SSWP [2010] UKUT 109 (AAC)  (CPC/1492/2009)

A summary of this decision has just been added to briefcase here: LA v SSWP.

Although a useful decision for claimants in some respects, it is arguable that Judge Lane has got the law wrong in as much as her decision implies that it was necessary for the UK national son-in-law to be a worker etc. or someone who retained that status when in the UK (ie at the date of decision on his mother in law’s claim for SPC) in order for his dependent mother-in-law to have a right of residence here sufficient to claim SPC.

It is arguable that the case of Eind Case C-291/05 (which came out after the introduction of the I(EEA) Regs 2006 (SI 2006 No. 1003)) means that it is unnecessary for the UK son-in-law to be pursuing an economic activity in the UK on his return from being a self-employed person in Greece, in order for his family members to have a right of residence in the UK.

In Eind the ECJ said as follows:

45. In the light of all the above considerations, the answer to Questions 2 and 3(b) must be that, when a worker returns to the Member State of which he is a national, after being gainfully employed in another Member State, a third-country national who is a member of his family has a right under Article 10(1)(a) of Regulation No 1612/68, which applies by analogy, to reside in the Member State of which the worker is a national, even where that worker does not carry on any effective and genuine economic activities. The fact that a third-country national who is a member of a Community worker’s family did not, before residing in the Member State where the worker was employed, have a right under national law to reside in the Member State of which the worker is a national has no bearing on the determination of that national’s right to reside in the latter State.

Judge Lane has not referred to Eind. In a case where this issue is relevant it would be possible for the advisor to rely directly on that case.

Hope that helps.

Martin.

This case[LA v SSWP}  is one that I took to the UT initially and the claim for PC was allowed by the new tribunal. I am pretty sure that I had a lot of support on it from CPAG. I now have a Polish case very similar but the daughter has said in writing to DWP that she does not support the mother financially . she supports her by taking her to doctors , hospital etc and helped her move to UK. does anyone have any ideas how I might get around the financial suport side of the case. the mother who has been refused PC does have some income including AA and also get HB

Support needs to be “material” and contribute to the basic necessities of life. The activities described could meet that test.

However, could I ask whether the mother lives with the daughter? And who pays for the accommodation etc.

Martin.

Thank you Martin. the mother lives by herself in LA accomodation, the LA had refused HB but after a deluge of stuff garnered from the internet on the right to reside sent to them by the daughter the LA backed down and accepted she is entitled to HB [but have asked what is happening to the PC claim !! ]

The mother gets Attendance Allowance and a disability/retirement pension from Poland so actaully has a reasonable income, but below PC.

the daughter tried to mitigate her comments about not providing financial help in a futher letter to the DWP ,saying that she provides the other type of care as above.

the daughter is now a UK citizen and is marrried to a UK citizen, daughter worked in uk for 16 years but had to stop due health issues herself, daughter also has a brother in UK who is still a Polsh citizen, he is said to have provided similar support to the daughter but is reluctant to get involved in the case as he is afraid he may have to reimburse DWP and LA for any monies his mother gets