Upper Tribunal (Administrative Appeals Chamber)

Secretary of State for Work and Pensions v MM (AA) (European Union law - Council regulations 1408/71/EEC and (EC) 883/2004) [2016] UKUT 547 (AAC) (12 December 2016)

European Union - Social security - Attendance allowance and disability living allowance - "genuine and sufficient link to the United Kingdom social security system"

The Court of Appeal (Civil Division) [2019] EWCA Civ 272, considered whether the Upper Tribunal (AAC) had erred in concluding that MM and BK could not demonstrate at the material time that they had a "genuine and sufficient" link with the UK because it failed to take proper account of all the relevant circumstances in each case, in particular MM's intention to settle in the UK to be cared for by her daughter and BK and his mother's reasons for coming to the UK and their links to the UK. Whether presence in the UK could by itself demonstrate, demonstrate a "genuine and sufficient link" to the UK. BK applied for disability living allowance, on the basis that he satisfied the conditions set out in the Social Security (Disability Living Allowance) Regulations 1991 as amended. MM applied for attendance allowance, on the basis that she satisfied the conditions set out in the Social Security (Attendance Allowance) Regulations 1991, as amended.

Held, allowing the appeals and dismissing the Secretary of State's cross-appeal, that

1. Notwithstanding the right of European Union Citizens to freedom of movement within the European Union, member states might specify proportionate conditions limiting the right of nationals of other member states to social benefits in the host member state in order reasonably to limit the financial burden on its social assistance system. Such a condition might be a requirement that the applicant had to demonstrate a sufficient link or connection with the host member state and where there was a condition requiring such a link or connection, the host member state had to take into account all relevant evidence as to whether it had been established. Although the condition of a genuine and sufficient link to the United Kingdom would be an appropriate and proportionate condition, in imposing the condition of a "genuine and sufficient link to the United Kingdom social security system", regulation 2A(1)(c) of the Social Security (Disability Living Allowance) Regulations 1991 and regulation 2A(1)(c) of the Social Security (Attendance Allowance) Regulations 1991 were too narrow and prescriptive to be lawful and were, therefore, to be interpreted and applied as if they required a genuine and sufficient link to the United Kingdom;

2. In assessing whether a genuine and sufficient link to the United Kingdom had been established, objective evidence of the link was plainly critical but evidence of the applicant's motives, intentions and expectations was not to be ignored if it was relevant to proof of the link and was convincing and

3. In each case the Upper Tribunal had erred in failing to take into account the claimant's motives, intentions and expectations, which had been relevant to the question of whether the claimant had a genuine and sufficient link to the United Kingdom; that, on the facts, both claimants had such a genuine and sufficient link at the time of their claims and certainly at the time their claims were rejected.

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