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Court of Appeal hears landmark case on right to reside test for Child Benefit

On 24 June, the Court of Appeal heard an appeal by HMRC against a successful challenge by the Law Centre to the ordinary residence and right to reside test for Child Benefit.

This is an important challenge to the legality of the ordinary residence and right to reside test for Child Benefit.  The chief social security commissioner had decided in a landmark judgement that our client was entitled to Child Benefit as the ordinary residence and right to reside rule was unlawful direct discrimination under EU law. 

There is no other case law on the legality of the right to reside test for Child Benefit and the case is therefore of UK-wide interest.

The client is an EU national.  She has always been in employment and has never claimed means tested benefits.  Child Benefit is treated differently to means tested benefits under EU social security rules.  At the time of the claim, our client should have registered with the workers registration scheme but when her employer contacted the Home Office she was led to believe that it was not necessary*.

Richard Drabble QC represented our client at hearing on behalf of the Law Centre.  He is one of the leading counsel in this area in the UK and we were very grateful for his interest and assistance.  We have received support from the Public Interest Legal Support project as our client is not entitled to legal aid. We have entered into a protective costs agreement with HMRC.  If they lose the appeal they will pay our costs at an agreed rate. If they win PILS will cover counsel’s fees.  Both senior and junior counsel have agreed to reduced fees.

The court of appeal is likely to give its decision in the autumn.

*The Workers Registration Scheme applied to A8 nationals until 1 May 2011.  Before that date A8 nationals had to register the first twelve months of work under this scheme to have full EU law rights.  Complicated rules applied to the scheme which often led to misunderstandings.  So for example our client was lawfully working in the UK under a work permit on 1 May 2004 and it was unclear to her next employer and to the Home Office that she needed to register with the workers registration scheme.



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