Social Welfare Update: Court of Appeal rules that evidence of a person’s motives, intentions and expectations was not to be ignored when deciding the ‘genuine and sufficient link’ test for disability benefits

Wednesday 29 May 2019

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In order to be eligible to claim certain non-contributory benefits, there is a requirement that the claimant was actually present in Great Britain for a period of 104 out of 156 weeks prior to making the claim (the past presence test). The application of the past presence test is modified where EU law applies. If the claimant comes from another Member State they will be exempt from having to satisfy the past presence test if they can show that they have a ‘genuine and sufficient link’ to the UK.

Both the claimants recently arrived in the UK from another Member State of the European Union. Shortly after their respective arrivals in the UK from the EU, Brandon Kavanagh ("BK"), an Irish national and a minor, claimed Disability Living Allowance and Maryam Mohamed ("MM"), a German national, claimed Attendance Allowance. The Secretary of State conceded that BK and MM were habitually resident in Great Britain and that the UK was the competent Member State for the payment of sickness benefits. However, both claims were refused on the basis that neither BK nor MM could demonstrate a genuine and sufficient link to the UK and were therefore subject to the requirement to be present in the UK for two years before they became eligible to claim these benefits.

The Court of Appeal summarised the case-law (at [67]) and gave guidance on the factors to be taken into account when deciding the ‘genuine and sufficient link’ test. While objective evidence of the link was plainly critical, evidence of an applicant’s motives, intentions and expectations was not to be ignored if relevant to proof of the link to the UK and were matters that therefore needed to be taken into account (at [69]). 

The facts in BK: BK was born in 2000 and is an Irish national. He lived in Ireland until June 2013, apart from a brief period between 2003 to 2004 when he moved temporarily to the UK with his mother. BK's mother, a British national, who moved to Ireland when she was 12 years old, briefly returning to the UK in 1998. She had last worked in the UK in 1998, and had not paid national insurance contributions or tax here. She did not work in Ireland. While in Ireland she claimed domiciliary care allowance for her son and carer's allowance for herself, following her son's diagnosis of Asperger's syndrome. She left Ireland following domestic violence. Two days after his arrival in the UK in 28 June 2013, when BK was 12 years of age, BK made an application for DLA. 

The decision on BK: The Court said the Upper Tribunal had been wrong to hold that the motives of BK, or rather his mother, for coming to the UK were irrelevant. The following matters should have been taken into account when deciding whether or not BK had a genuine and sufficient link: (1) BK's mother relocated to the UK, which was her country of nationality, consequent on domestic violence; (2) she required the support of her own mother, grandmother and two brothers, all of whom resided in England; (3) she did not believe that she could turn to her father for help in Ireland as he was a heavy drinker and she did not consider that this was a suitable or safe environment to reside with BK and his two siblings; (4) on coming to England she severed all ties with Ireland and had no intention of returning: she closed her bank account in Ireland and took steps to register her children for school in England. The Court concluded that having regard to these matters, BK did have a genuine and sufficient link to the UK at the time of his claim (at [76]). 

The Court also allowed in MM’s appeal on its facts (at [85]).

The Upper Tribunal decision is available here: Kavanagh & Anor v The Secretary of State for Work and Pensions [2019] EWCA Civ 272

Desmond Rutledge is a member of the Garden Court Chambers Welfare Benefits team.

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