Summary
The issue in this appeal is whether the conditions of entitlement to state pension credit (SPC) are compatible with a rule of EU law which prohibits discrimination between nationals of different Member States.
Background
Mrs Patmalniece was a Latvian pensioner, who was in receipt of a Latvian retirement pension. She came to the UK in June 2000 and claimed asylum, which was unsuccessful. However she was not removed from the UK. Mrs Patmalniece has never worked in the UK.
On 1 May 2004 Latvia joined the EU. In August 2005, Mrs Patmalniece claimed state pension credit but her claim was refused on the ground that she was not in Great Britain because she did not have a right to reside in the UK.
She appealed, arguing that it was unlawful to apply the right-to-reside test to state pension credit because it is a ‘social security’ benefit (specifically, a ‘special non-contributory benefit’) under Regulation 1408/71 (EC) (now Regulation 883/04).
Regulation 3 of Regulation 1408/71 (EC) prohibits discrimination based on nationality in relation to the benefits to which they apply. Mrs Patmalniece argued that because British and Irish citizens, but not other EU nationals, always pass the right-to-reside test, there is nationality discrimination.
The Social Security Appeal Tribunal allowed her appeal. However, the Social Security Commissioner (in CPC/1072/2006) allowed the Secretary of State’s appeal and held the conditions to be indirectly discriminatory but justified. The Court of Appeal upheld that decision so Mrs Patmalniece appealed to the Supreme Court.
The Supreme Court decision
This case was heard in the Supreme Court as Patmalniece (FC) (Appellant) v Secretary of State for Work and Pensions (Respondent) [2011] UKSC 11.
The court considered three issues:
- Do the conditions of entitlement for SPC give rise to direct discrimination?
- If they give rise only to indirect discrimination, is that discrimination justified?
- Is that conclusion undermined by the favourable treatment that the Regulation gives to Irish nationals?
The Supreme Court dismissed the appeal, holding that the requirement to have a right to reside was indirectly discriminatory but was justified because the Regulations are a proportionate response to the legitimate aim of protecting the UK public purse and that this justification is independent of the claimant’s nationality.
The court also held that the different treatment afforded to Irish nationals is protected by the Protocol on the Common Travel Area.
More information
- patmalniece (fc) (appellant) v secretary of state for work and pensions - supreme court judgment (March 2011)
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