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Incapacity and the right to reside

The Law Centre won a case for a Lithuanian lady on Incapacity Benefit who had lost her Income Support top up because the Department for Social Development had wrongly applied European law on right of residence.

As the case did not go to the Social Security Commissioner, it is not caselaw.

However, an AIT decision has essentially settled the issue and has agreed with the same arguments that we had raised in our social security appeal.  FMB (EEA reg 6(2)(a) - 'temporarily unable to work') Uganda [2010] UKUT 447 (IAC)

We are still looking for decisions of this type as it would be beneficial to have a Social Security Commissioner decision which endorses the AIT decision.

Our client had  metal pins inserted into her legs after she was involved in a car accident. She had to stop working and claim Incapacity Benefit.  In order to be entitled to an Income Support top up, she had to have a right to reside. European legislation states that a person who was working but is now temporarily incapable of work will retain a right to reside.

She had been on Incapacity Benefit for around three years and was asked by the Income Support office when she would be able to return to work. She replied that her doctor was not able to tell but he had said it would likely not be in the near future. The Income Support office then decided that she was no longer temporarily incapable of work and stopped her Income Support. There was no issue over her incapacity for work.

The Law Centre appealed on the basis that European law only allows for a person to be either temporarily incapable of work or permanently incapable of work. Those who are temporarily incapable of work will, in certain circumstances, retain a right to reside. Those who are permanently incapable of work can obtain a permanent right of residence. European law does not allow for a third category of persons who are neither temporarily nor permanently incapable of work and the Department was therefore wrong to find that she had lost her right of residence.

The appeal was allowed, and our client was found to have been entitled to Income Support throughout. The tribunal pointed out that the statement from her that she would not return to work in the near future was insufficient evidence to supersede her entitlement to Income Support. As she was still in receipt of Incapacity Benefit, she was still incapable of work.

The Department had indicated an intention to appeal to the Social Security Commissioner, but no application was made. 

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