IN THE UPPER TRIBUNAL	Case No.  CPC/2724/2013
ADMINISTRATIVE APPEALS CHAMBER

Before Judge Robin C A White 

Decision: The decision of the tribunal of 2 May 2013 is erroneous in law. I set it aside. I re-make the decision of the tribunal. 
My substituted decision: the claimant is not entitled to state pension credit on her claim made on 4 January 2013 because, as at that date, she did not have the right to reside in the United Kingdom for the purposes of entitlement to state pension credit and consequently cannot be treated as being habitually resident in the United Kingdom. The effect is that she cannot be treated as being in Great Britain for the purposes of this claim.

REASONS FOR DECISION
Background and context  
1.	To make it easier to understand this decision, I will refer to the appellant as “the Secretary of State” and the respondent as “the claimant”.
2.	The claimant, who was born on 27 May 1938, claimed state pension credit on 4 January 2013.
3.	The claimant is a Belgian national who came to the United Kingdom in February 2012. She has a Belgian state pension which converts to a weekly income of around £69.00. On arrival in the United Kingdom she stayed in a room provided by a friend of her daughter. She registered with a general practitioner. The claimant planned to support herself on her Belgian state pension with help from her daughter and her daughter’s friends.
4.	The claimant’s daughter, who is also a Belgian national, came to the United Kingdom in July 2008. She was self-employed as a carer with an agency from August 2008 to March 2012. From 10 April 2012 to 13 March 2013, the daughter was in receipt of jobseeker’s allowance. The daughter paid £30 a week as an informal payment in respect of her mother’s occupancy of the room in the friend’s house. The daughter also supported her mother in other practical ways, such as contributing to the cost of food and toiletries, and providing transport for her mother to get to appointments.
5.	The claim for state pension credit was prompted by the accommodation arrangements changing, and the room being required. When the claimant enquired about housing assistance, she learned that she would need additional benefits to advance her claim for housing allocation.
6.	On 6 February 2013 the Secretary of State refused the claim on the grounds that the claimant did not have a right to reside in the United Kingdom.
7.	On 20 February 2013 the claimant appealed against this decision on the grounds that she did have a right to reside in the United Kingdom as the family member of a “qualified person” and as a citizen of the Union with free movement rights.
8.	On 23 April 2013 the claimant sent in a written submission in support of her case. She said she was a dependant of her daughter which meant she had a right to reside for the purposes of her claim. 
9.	The appeal came before the tribunal on 2 May 2013. The claimant attended with her daughter. The Secretary of State was not represented. There is a helpful record of the proceedings. The appeal was successful and the tribunal decided that the claimant had a right to reside and was to be treated as being in Great Britain for the purposes of her claim to state pension credit.
10.	The appeal against this decision by the Secretary of State now comes before me with the permission of a judge of the Upper Tribunal.
The grounds of appeal 
11.	The Secretary of State argues that the tribunal erred in law in concluding that, as at the date of claim, the claimant was able to rely upon the status of being a family member dependent upon a “qualified person” under the Immigration (European Economic Area) Regulations 2006 (“the 2006 EEA Regulations).
Did the tribunal err in law? 
12.	I note at this point that the claimant has not responded to the appeal following the giving of permission to appeal. In the grant of permission, she was advised that the legal issue in this case was technical and pointed in the direction of possible sources of help in responding to the Secretary of State’s appeal. I see no bar at this stage to my proceeding to determine this appeal on the basis of the information in the documents I have.
13.	In common with many means-tested benefits, the conditions of entitlement to state pension credit require that the person is in Great Britain and, unless in an exempt group, is habitually resident in the United Kingdom, the Republic of Ireland, the Channel Islands and the Isle of Man. No one can satisfy the habitual residence test unless he or she has a right to reside in the territories listed above: section 1 of the State Pension Credit Act 2002 and regulation 2 of the State Pension Credit Regulations 2002.
14.	There would appear to be no dispute that the claimant is dependent on her daughter, nor that, in the general understanding of the term, she is a close relative of her daughter. However, the regulations are rather more arcane in determining when a person will constitute a family member of a qualified person for the purposes of a claim for state pension credit. This turns on the status of the daughter as at the date of claim (which is 4 January 2013).
15.	As at 4 January 2013, the daughter was in receipt of jobseeker’s allowance which was awarded after her self-employment as a carer had come to an end in March 2012. There is no evidence to suggest that the daughter retained her status as a self-employed person as at the date of claim.
16.	The key statutory provision is regulation 2 of the State Pension Credit Regulations 2002, which provides:
Persons not in Great Britain
2.—(1) A person is to be treated as not in Great Britain if, subject to the following provisions of this regulation, he is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.
(2) No person shall be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland unless he has a right to reside in (as the case may be) the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland other than a right to reside which falls within paragraph (3).
(3) A right to reside falls within this paragraph if it is one which exists by virtue of, or in accordance with, one or more of the following–
(a) 	regulation 13 of the Immigration (European Economic Area) Regulations 2006;
(b) 	regulation 14 of those Regulations, but only in a case where the right exists under that regulation because the person is–
(i) 	a jobseeker for the purpose of the definition of “qualified person” in regulation 6(1) of those Regulations, or
(ii) 	a family member (within the meaning of regulation 7 of those Regulations) of such a jobseeker; 
17.	In as plain a language as I can manage, and so far as relevant to the facts before me, the effect of regulation 2(2) and regulation 2(3)(b)(ii) is that a right to reside is excluded for the family member of a jobseeker.
18.	As at the date of the claim, the daughter was a jobseeker. This is fatal to the claimant’s status as a person with a right to reside as the dependent family member of a person with a right to reside.
19.	This exclusion was missed by the First-tier Tribunal. This constituted an error of law and for this reason, I set their decision aside.
20.	The claimant’s daughter’s curriculum vitae shows what may be employment in May and June 2012, but the daughter explained to the tribunal that this was work experience. This does not constitute employment and does not assist the claimant. The daughter confirmed in her oral evidence to the tribunal that she had been in receipt of jobseeker’s allowance for 13 months.
21.	I have considered whether the claimant could sustain a claim to have a right to reside in her own right, rather than as a dependent family member. The obvious basis for such consideration is to be found in Article 7(1)(b) of Directive 2004/38/EC (“the Citizenship Directive”) which provides:
1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:
(a) …
(b)	have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance in the host Member State; … .
22.	I consider that sufficient resources could include a combination of the Belgian state pension and the support the claimant receives from her daughter. There are currently no detailed findings of fact on the amount of support that was available as at the date of claim. The mere fact that a person claims a means-tested benefit does not mean that they do not have sufficient resources and are simply by reason of making the claim regarded as having become a burden on the social assistance system of the host Member State: see the analysis at paragraphs 66 to 97 of VP v Secretary of State for Work and Pensions (JSA) [2014] UKUT 32 (AAC).
23.	However, there is nothing to suggest that the claimant had comprehensive sickness insurance cover, which is also a requirement under Article 7(1)(b).
24.	The requirement for comprehensive sickness insurance cover seems to me to have been set by the United Kingdom authorities at a level which will present an insurmountable hurdle for virtually all claimants seeking to show that they meet the requirements of Article 7(1)(b). The issue is discussed in detail at paragraphs 98-105 of VP v Secretary of State for Work and Pensions (JSA) [2014] UKUT 32 (AAC), which follows, as it must, the Court of Appeal authority in FK (Kenya) v Secretary of State for the Home Department  [2010] EWCA Civ 1302. 
25.	With some reluctance, I agree with that analysis. My reluctance does not arise from any concerns about the correctness of the judge’s analysis in VP v Secretary of State for Work and Pensions, which seems to me to be unimpeachable in the light of the binding authority from the Court of Appeal.
26.	My reluctance arises because I have some reservations as to whether the European legislature intended to set so high a hurdle for those exercising rights of free movement as self sufficient persons in a Member State whose health service is organised, as it is in the United Kingdom, on a residence basis, and where one factor in determining that a person is habitually resident for social security purposes is whether they have registered with a doctor in the United Kingdom.
27.	In the light of the analysis in VP v Secretary of State for Work and Pensions my conclusion is that the appellant does not meet the requirements of Article 7(1)(b) of the Citizenship Directive, because she does not have comprehensive sickness insurance cover. In her responses to Form HRT2 dated 28 January 2013, the claimant reported that she had registered with a general practitioner in the United Kingdom, and this basis for her health care was confirmed in her oral evidence to the tribunal.
28.	This is a case in which I consider it to be appropriate to re-make the decision of the tribunal. My decision is that, as at the date of claim, the claimant did not have a right to reside in the United Kingdom. My formal decision in substitution for that of the tribunal is set out at the top of this decision.
A word of advice for the claimant 
29.	I note that the daughter’s jobseeker’s allowance ended in March 2013 because she was working for 16 hours or more a week. This suggests that she had either resumed her self-employment or found employment. 
30.	My decision does not bar the claimant from being a person with a right to reside in the United Kingdom for all time. For example, had the claimant’s daughter been an employed or self-employed person when the claimant made her claim, then she would have had a right to reside under the relevant legislation as a dependent family member of a person with a right to reside.
31.	It follows that, if the daughter currently remains self-employed or is now in employment, the claimant should take advice and has nothing to lose by making a further claim if her circumstances remain the same (as seems likely).

Signed on the original 	Robin C A White
on 6 March 2014 	Judge of the Upper Tribunal