The Court of Appeal has allowed the appeals of both Brendan Kavanagh and Maryam Mohammed against the decision of the Upper Tribunal which had held that BK was not entitled to Disability Living Allowance and that MM was not entitled to Attendance Allowance upon arrival in the United Kingdom. In both cases, the care implicit in DLA and AA was in fact provided, in BK’s case, by his mother and in MM’s case by her daughter. Both BK’s mother and MM’s daughter were British Nationals, but BK and MM were nationals of other member states. The issue of entitlement to DLA and AA involved the application of the case-law of the CJEU culminating in Stewart. This case-law required a “genuine and sufficient link” with the UK. The Court of Appeal accepted that the UT had correctly held that the link did not need to be with the social security system rather than more generally with the UK; but held that the UT had failed to have regard to the “motives, intentions and expectations” of the two appellants. On the facts, the intentions and expectations of both appellants had “not been challenged at any stage”; the UT had been wrong to treat them as irrelevant. The Court of Appeal was in a position to make the correct decision itself. It accordingly ordered that both appellants could demonstrate a genuine and sufficient link as at the date of their claim on arrival.
This is an important case that demonstrates that the characteristics of benefits such as DLA and AA may require a different approach from that taken to other benefits by the CJEU in Dano and Commission v UK.
Richard Drabble QC appeared for both appellants.