RM v Secretary of State for Work and Pensions (IS) (Residence and presence conditions : right to reside)

As the decision of the First-tier Tribunal (made on 12 October 2012 at Fox Court under reference SC160/12/00190) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007 and the decision is RE-MADE, but to the same effect.

The decision is: on her claim for income support, made on 30 March 2011 and refused on 27 May 2011, the claimant was a person from abroad with an applicable amount of nil. She was not entitled to income support.

This appeal raises the issue whether a parent and primary carer who has been self-employed while her children were in general education has a right to reside in the United Kingdom. I referred this question to the Court of Justice of the European Union in the cases of Czop and Punakova v Secretary of State for Work and Pensions (Joined cases C-147/11 and C-148/11), but the Court did not deal with the issue in view of concessions made by the Secretary of State. I have now decided that there is no right to reside in these circumstances.

On 30 March 2011, Ms M made a claim for income support as a lone parent. At that time, she had seven children, born in 2002, 2003, 2004, 2005, 2008, 2010 and 2011. The Secretary of State refused the claim on 27 May 2011 on the ground that she did not have a right to reside in the United Kingdom and was, therefore, barred from entitlement to income support. Ms M exercised her right of appeal to the First-tier Tribunal. The tribunal dismissed the appeal, but gave her permission to appeal to the Upper Tribunal.

Income support was established by the Social Security Act 1986. The relevant provisions have been consolidated by the Social Security Contributions and Benefits Act 1992.