Whether the right to reside test complies with EU law when applied to ‘family benefits’

Desmond Rutledge considers the Advocate General’s Opinion (C-308/14) on the EU Commission’s action against the United Kingdom’s use of the right to reside test

The origins of the Commission’s action against the UK

In European Commission v United Kingdom of Great Britain and Northern Ireland (Case C‑308/14), Advocate General Cruz Villalon (“AG”) was asked to consider an action brought by the European Commission against the United Kingdom.

The Commission had received many complaints from nationals of other Member States who were resident in the United Kingdom (“UK”), stating that the competent UK authorities had refused their claims for certain social benefits because they had no right of residence in that Member State.

The Dano Effect – The restriction on benefits paid to EU citizens who are former workers

Desmond Rutledge examines the recent decision in Alimanovic (C-67/14) which holds that it is lawful for a Member State to restrict the period a former worker from another Member State can access benefits upon becoming involuntarily unemployed based on Dano (C-333/12).

Introduction

The landmark case of Dano v Jobcenter Leipzig (C-333/12), in which the Court established that Member States may refuse to grant social assistance to EU citizens who enter their territory without intending to find a job and without being able to support themselves by their own means. The question that arose in Jobcenter Berlin Neukölln v Alimanovic (C-67/14) is whether, and to what extent, this principle applies in the case of an EU citizen who is a former worker in a Member State of which s/he is not a national, who, after becoming unemployed, applies for subsistence benefits in the host State.

Where have all the good men gone?

Maya Sikand and Felicity Williams respond to Lord Sumption’s comments about gender inequality in the legal profession.

It is difficult to know where to begin to respond to Lord Sumption’s unenlightened comments about gender inequality in the legal profession reported in the Evening Standard on Monday 21 September 2015. There is nothing in his reported comments, however many times you read them, to explain the Supreme Court Office’s attempt at justification: “Some of Lord Sumption’s comments appear to have been misunderstood”. Since they do not suggest that he has at any stage been misquoted, let us consider just one full and direct quote: “The Bar and the solicitors’ profession are incredibly demanding in the hours of work and the working conditions are frankly appalling. There are more women than men who are not prepared to put up with that. As a lifestyle choice, it’s very hard to quarrel with it, but you have to face the consequence which is that the top of the legal profession has fewer women in it than the profession overall does.”

The legal challenge to the ‘bedroom tax’ – a new hope

Desmond Rutledge reviews the prospects of the bedroom tax litigation succeeding in the light of the recent Supreme Court judgment in the household benefit cap case.

Welfare Benefits and Human Rights

The importance of social security is recognised in a range of international instruments.  A right to social security was adopted in the UN Declaration of Human Rights in 1948 (art 22) and was subsequently enshrined in the International Covenant on Economic, Social and Cultural Rights in 1966 (ICESCR) as a right of “everyone” (art 9).  The ICESCR also makes clear that circumstances where an individual is permitted to become destitute would be in breach of the right to an adequate standard of living, which includes adequate food, clothing and housing (art 11).

Tackling hate speech aimed at Gypsies, Travellers and Roma

Marc Willers QC explores the hate speech targeting Roma, Gypsies and Travellers and the power to prosecute perpetrators for incitement to racial hatred.

On 27 January 2015 we commemorated the 70^th anniversary of the day when Soviet troops liberated the Nazi death camp at Auschwitz-Birkenau. Quite rightly we reflected upon the terrible fact that the Nazis murdered 6 million Jews in the Holocaust. Yet there was little mention of the hundreds of thousands of Romani Gypsy and Sinti[1] people that were also murdered by the Nazis during World War II in what has become known as the Porrajmos (the ‘Devouring’).

Judge rules that Mr Pickles unlawfully discriminated against Gypsies and Travellers

Marc Willers QC explores the recent High Court judgment in which it was found that the conduct of Eric Pickles, the Secretary of State for Communities and Local Government, constituted indirect discrimination against Romany Gypsies and Irish Travellers.

Meeting the accommodation needs of Gypsies and Travellers should be relatively simple, but it has always been a contentious political issue because of widespread prejudice amongst the settled population and nimbyism. Planning permission is required for use of land as a caravan site and permission for sites in the Green Belt will only be granted in very special circumstances.

Is the Cart-threshold being set too high?

Desmond Rutledge and Zubier Yazdani consider the hurdles facing welfare benefit claimants seeking to use the Cart test.

Introduction

Speaking generally, a First-tier Tribunal (‘FtT’) has a wide discretion when making case management decisions, such as whether to adjourn, so long as it has regard to the overriding objective of dealing with cases fairly and justly (Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Regulations 2008, SI No 2685, rule 2(1)).  There is no specific definition in the Rules as to what ‘justly and fairly’ means.  However, rule 2(1) is informed by the common law rules on natural justice and the right to a fair hearing enshrined in article 6(1) of the ECHR. In  R (MM & DM) v Secretary of State for Work and Pensions [2013] EWCA Civ 1565, the Court of Appeal upheld a finding that claimants with mental health problems suffer a ‘substantial disadvantage’ within the meaning of the Equality Act 2010, s.20(3), compared to other claimants in the assessment of their eligibility to Employment and Support Allowance. The substantial disadvantage point and how it was taken in into account by the Rules was at the heart of the legal challenge described below.

Challenging a Refusal of Permission to Appeal by the Upper Tribunal (Administrative Appeals Chamber) in a Welfare Benefits Case – A Practice Note

Desmond Rutledge provides a practice note on challenging a refusal of permission to appeal by the Upper Tribunal (Administrative Appeals Chamber) in a welfare benefits case.

1. What options do claimants have if the Upper Tribunal refuses permission to appeal?

If permission to appeal against a decision of a First-tier Tribunal in a welfare benefits case is refused by the Upper Tribunal (Administrative Appeals Chamber), then the claimant will not be able to appeal that decision.  This is because it is an excluded decision under s. 13(8)(c) of the Tribunals, Courts and Enforcement Act 2007, and the Upper Tribunal has no jurisdiction to review its refusal of permission by virtue of  s.10(1) and s.13(8)(d)(i) of the 2007 Act.  This means the only remedy available is by way of judicial review (Samuda v Secretary of State for Work and Pensions [2014] EWCA Civ 1).  The deadline for applying for judicial review against a refusal of permission by an Upper Tribunal is 16 days. CPR rule 54.7A(3).

How to be a feminist lawyer

Elizabeth Woodcraft and Alison Diduck, a Professor at University College London, speak about what it means to be a feminist barrister.

More and more women are going into the law as solicitors, barristers, legal executives, academics. Indeed, in England and Wales more women than men now qualify as barristers. But far fewer women get promoted to the highest levels. There is only one woman, Brenda Hale, on the UK Supreme Court.

Around the world, feminists have been developing an important critique of legal systems and the assumptions underpinning law making.

Are welfare benefits exempt from bank charges under section 187(1) of the Social Security Administration Act 1992?

Desmond Rutledge considers whether the protection conferred on welfare benefits under Social Security legislation continues once those benefits have been paid into a current bank account.

Are welfare benefits protected from recovery of a debt owed to a bank?

Welfare benefits are paid to cover the recipient’s essential living expenses and, where applicable, to contribute to their housing costs (see Burnip v Birmingham City Council & Anor [2012] EWCA Civ 629, at [32]-[33], [50] and R (MM & Ors v Secretary of State for the Home Department [2013] EWHC 1900 (Admin) at [48]).  Where, however, welfare benefits are paid into the claimant’s current account, the bank or building society can use the money in that account to make repayments towards bank loans or credit cards, and where the  account goes into debit, on interest payments and bank charges, even if this results in the claimant having insufficient funds to cover essential payments.