2023 Archives

Case Report G0154 – Little v the Chief Appeals Officer, Social Welfare Appeals Office and Minister for Social Protection [2023] IESC 25

Little v the Chief Appeals Officer, Social Welfare Appeals Office and Minister for Social Protection [2023] IESC 25

Title of Payment: Domiciliary Carers Allowance

Date of Final Decision: 14 November 2023

Keywords: Domiciliary Care Allowance, Social Welfare Appeals, Judicial Review, Severe Disability, Continual Care, Social Welfare Consolidation Act 2005; section 317 review; eligibility as at date of application

Organisation who represented the Claimant: N/A

Casebase No. Case G0154

Case Summary:

Background

This case relates to a decision of the Supreme Court dismissing an appeal of a decision of the High Court in relation to an appeal on a point of law under the Social Welfare Consolidation Act 2005, as amended (the “2005 Act”). The crux of the case related to the refusal of the applicant’s application for Domiciliary Care Allowance (“DCA”) in respect of her young son.

In dismissing the appeal, the Supreme Court affirmed that the legislative framework requires eligibility to be assessed and based on the conditions at the time of the application. The Supreme Court ruled that the appellant had to establish eligibility for DCA as of the date of the original application in 2018, and that new evidence from 2020 could not be used to revise the original decision.

Initial application:

The appellant initially applied for DCA in June 2018 with respect to her son, who was five years and two months old at the time. The application was assessed by a deciding officer who concluded that her son’s care needs did not meet the qualifying conditions for DCA, which require that the child has a severe disability necessitating continual or continuous care substantially in excess of that required by children of the same age without disabilities. This decision was communicated to the appellant on 30 August 2018. Following this, the appellant appealed the decision. A subsequent review by another deciding officer in December 2018, in accordance with s.301 of the 2005 Act upheld the original decision.

Appeal to Social Welfare Appeals Office (“SWAO”)

The appellant’s appeal of the initial decision was then heard by an appeals officer in February 2019. The appeals officer also disallowed the appeal on similar grounds, concluding that her son’s care needs were not substantially in excess of those required by other children of the same age. The appellant sought a review of this decision under section 317 of the 2005 Act, which allows for a decision to be revised by an appeals officer if new evidence or facts come to light. However, the appeals officer determined that there were no new facts or evidence to warrant a revision and upheld the original decision in June 2019. The appellant then requested a review by the Chief Appeals Officer, who also found no error in fact or law in the appeals officer’s decision and declined to revise it in September 2019.

Additional evidence

In late 2020, an assessment by the Health Service Executive (“HSE”) concluded that the appellant’s son had a substantial restriction in capacity due to an enduring impairment, meeting the criteria for disability under the Disability Act 2005. Based on this assessment, in April 2021 the appellant sought another review of the 2019 decision of the appeals officer pursuant to section 317 of the 2005 Act, arguing that the new assessment demonstrated that the original decision was erroneous. However, the appeals officer refused to revise the decision, stating that the new evidence pertained to her son’s condition in 2020 and did not provide new information about his condition at the time of the original application in 2018.

Key Legislation:

Social Welfare Consolidation Act 2005, particularly sections 186C, 301, 317, and 318
Disability Act 2005
Legal Services Regulation Act 2015, section 169

Decision of the High Court

The appellant brought judicial review proceedings in the High Court. The High Court dismissed the challenge, on the basis that the issue to be decided was whether at the time of her son’s original application for DCA he had met the criteria.

The High Court concluded that none of the additional information provided addressed whether or not the applicant’s son met the criteria for DCA as at the time of his original application.

The High Court held that the test in section 301 of the 2005 Act means that if new material only goes to a change of circumstance since the original decision, then it cannot be considered as a basis for concluding that the original decision was erroneous in the light of new evidence or new facts which have been brought to the notice of the deciding officer since the date on which the decision was given.

Appeal to the Supreme Court

The appellant was granted leave to appeal the matter to the Supreme Court.

The key arguments on behalf of the appellant were as follows:

The 2005 Act should be interpreted broadly to allow for eligibility determination based on new evidence. New did not mean having only come into existence after the original appeal but instead means that the evidence or facts in question simply must not have been before the original decision maker at the time the decision was made.
The appeals officer should have considered new evidence from 2020 demonstrating her son’s disability. In refusing to revise the decision under s. 317(1) of the 2005 Act, the appeals officer must be satisfied that the outcome would remain unchanged if the new material had been before them previously. It does not follow that an appeals officer’s review jurisdiction is confined to a reversal of the original decision; rather, it may consist simply of an adjustment of some kind.
The High Court erred in focusing on the date of the original application rather than the evidence available at the time of the appeal.

The key arguments on behalf of the respondent were as follows:

Eligibility for DCA must be assessed based on the conditions at the time of the original application. The legislative framework does not permit retrospective eligibility based on new evidence of changed circumstances as it is clear from the ordinary, basic, and natural meaning of the words in the relevant legislative provision that the assessment to be made is whether the evidence establishes eligibility for the benefit as of the date of the application and not as of some future date as the relevant words are in the present tense.
The intention of the Oireachtas to allow only evidence as to the circumstances present at the date of the original application is clear by the fact that an assessment of the eligibility is made by reference to whether a child has a severe disability requiring care and attention substantially in excess of “the care and attention normally required by a child of the same age” and the care and attention needs of a child aged five years and two months differ to those of a child who is seven years and seven/eight months which is a different question to be assessed in the first instance.
The statutory wording must be viewed within the full context including the other sections of the 2005 Act. The structure of the 2005 Act is such that it is the question that is originally determined by the deciding officer that frames the subsequent appeal or revision jurisdiction. The question originally determined by the deciding officer is whether the eligibility criteria were met when the application was made, and this must also be the question for an appeals officer exercising their revision jurisdiction.

Decision of the Supreme Court:

The Supreme Court distilled the case to the following net issue: “…when seeking a revised decision in 2021, did the appellant in this case have to establish eligibility for DCA as of the time of the original application for DCA in 2018, or did it suffice to show entitlement as to the date of the revision application in 2021”.

The Supreme Court, in dismissing the appeal, found that an appellant has to establish eligibility as at the date of the making of the original application. In this regard, it further held that the legislative framework does not permit retrospective eligibility based on new evidence of changed circumstances. It held that while retrospective payments in respect of periods prior to the date of the claim are premised on the assumption that claimants have the right to benefits as at the time of the claim.

The Supreme Court further held that this requirement remains even where there is an appeal under section 311 of the 2005 Act, or an application for revision of a decision of an appeals officer under section 317 of the 2005 Act. In this regard, the Supreme Court found the legislative history to be instructive, and placed significance on the fact that section 317 had been amended in 2013 to remove the ability of an appeals officer to revise a decision where there had been a change of circumstances. This amendment meant that any change of circumstances since the date of application must trigger a fresh claim.

Date of final Decision: 14 November 2023

Observations:

The ruling underscores the importance of assessing eligibility for social welfare benefits based on the conditions at the time of the original application, rather than allowing for retrospective eligibility based on new evidence of changed circumstances.

The Court’s findings clarify that if an applicant’s situation changes after the initial application, they cannot use this new information to argue for a revision of the original decision. Instead, the applicant needs to submit a new application reflecting the current circumstances. Applicants should be aware of this limitation and plan accordingly. For example, in the case of DCA, applicants should be mindful that any significant changes in their child’s condition or care needs will require a new application, rather than a revision of the previous one. For completeness, it should be noted that the Court did also refer to the fact that if a claim is successful, DCA can be backdated if appropriate having regard to section 241(4A) of the 2005 Act.

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Case Report G0153 – T v Minister for Social Protection [2023] IEHC 763

Title of Payment: Carer’s Allowance

Date of Final Decision: 21 December 2023

Keywords: Carer’s Allowance; medical evidence; full time care and attention for twelve months; medical evidence; eligibility as at time of application; duty to give reasons for the decision; alternative remedies

Organisation who represented the Claimant: N/A. Applicant represented by senior counsel.

Casebase no: G0153

Case Summary:

The case related to an application for judicial review to the High Court of a decision (the “Decision”) ofthe Department of Social Protection and the Social Welfare Appeals Office (the “SWAO”) to refuse to award carer’s allowance to the applicant (the “Applicant”).

The Applicant applied for carer’s allowance in 2018 in relation to the care he provides to his partner. The Applicant’s partner had a number of health conditions including back pain, pernicious anaemia, depression, anxiety, uterine prolapse and severe stress incontinence.

This application was refused by way of letter dated 23 January 2013, with the Deciding Officer noting that they had assessed means of “€0.00 per week from 19/01/2019”, and that the requirements of Section 179 (4) of the Social Welfare Act 2005 (the “2005 Act”) (which defines a carer and provides the circumstances under which carer’s allowance may be awarded) were not met. The decision letter informed the client that he may apply for the decision to be reviewed, and that it may be helpful toprovide “any further evidence relevant to the reason for refusal of your claim”

The Applicant submitted an unsuccessful review and thereafter submitted an appeal to the SWAO. The SWAO issued its decision on 27 September 2019 and found that the Applicant had not met the eligibility criteria, in so far as the medical evidence submitted by the Applicant did not establish the necessity for full time care and attention for twelve months.

The Applicant submitted a number of requests for review under section 317 of the 2005 Act, all of which were unsuccessful, with the latest one dates 4 February 2022. The Applicant sought to challenge this decision by way of judicial review.

Key conclusions

The High Court found that the Decision contained an error of law and that inadequate reasons were given. In particular, the Court found that the current needs of the relevant person had formed the basis for the Decision, as opposed to the needs of the relevant person as at the time of the decision. Furthermore, correspondence from the SWAO was found to contradict the Decision itself, in contravention of the principle laid out in City of Waterford VEC (see below).

The High Court re-emphasised the duty to give reasons, and held that in the circumstances, it was not satisfied that the reader could “…know if the decision maker has directed its mind adequately to the issues which it has considered or is obliged to consider” (see Kelly J. (as he then was) in Mulholland v An Bord Pleanála (No. 2) [2006] 1 I.R. 453)

Relevant Legislation:

Social Welfare (Consolidation) Act 2005

S.I. No. 108/1998, Social Welfare (Appeals) Regulations 1998

Key Arguments:

The Applicant argued that the Decision should be quashed as it is erroneous for a number of reasons, including:

The Decision flies in the face of fundamental reason and lacks fundamental reason and common sense, and has resulted in a manifest error of law and fact, and should be quashed for lack of proportionality;

The decision making process was flawed as a matter of law in that the Respondent took an erroneous view of the applicable test;

The Respondent failed to take into account and/or give adequate weight to the medical evidence and facts outlined in the Applicant’s application;

The Respondent failed to explain why the evidence submitted supporting his application was not accepted, in particular, when a report from a medical consultant in pain management, dated 21 September 2021, asserted that the applicant met the statutory requirements for carer’s allowance; and

The Decision fails to disclose any adequate reasons so that it is not possible to fully determine if the said decision is vitiated by an error.

The Respondent argued:

The actions by the Appeals Officer for refusing the appeals to the Decision were correct, and the correct test had been applied;

The foregoing grounds are ‘thin’ on detail (and a similar suggestion was made in relation to the grounding affidavit sworn by the Applicant); and

The Applicant failed to exhaust alternative remedies via Section 318 or Section 327 of the 2005 Act.

Decision of the High Court

The High Court granted an order quashing the Decision.

Reviewing the appeals to the Decision

The High Court found that the Decision was based on an error of law and that the inadequate reasons were given.

In particular, the Court found as follows:

A decision maker is required to make decisions with respect to the relevant person’s care needs at the time the application was made.

In the correspondence refusing appeals to the Decision, the Appeals Officer did not address the relevant person’s care needs as of 2018, but instead referred to their current needs as of the dates of the various letters in 2019-2022;

In relation to the duty to give reasons, it relied on an earlier judgment of City of Waterford VEC v. Department of Education and Science [2011] IEHC 278, which found that “When giving reasons for a decision, the reasons are to be stated there and then, and not added later upon challenge. Where reasons stated within a written decision are shown to be manifestly flawed, these cannot be supplemented by better reasons, or correct reasons, at any stage after the decision is made.”. The Court found that in this case, the statements made by the SWAO after the Decision went beyond confirmation of the reasons and were closer to an alteration of the Decision.

The Court further relied on a principle established by Phelan J in MD v Minister for Social Protection [2023] IEHC 88, that “There is not an obligation on the Department to explain its decisions in detail but rather to inform applicants of the grounds for the decision so that the appeal is not impaired”. The High Court found that this principle had been breached in the decision-making process.

On the basis of the above, the High Court found that the Applicant had made out its claim that inadequate reasons were given for the Decision.

Alternative Remedies

The High Court found that judicial review had been appropriately sought by the Applicant and relief should not be denied on the basis of any failure to exhaust alternative remedies.

In this regard, the High Court noted that:

When the refusal of the appeal to the Decision was communicated to the Applicant by letter dated 15 February 2022, the Applicant was not informed that there was any further right of appeal, be that pursuant to Section 318, or otherwise.

The exercise of the Chief Appeals Officer’s Section 318 power does not depend on a dissatisfied person seeking to have that power invoked.

In relation to Section 327, had the Applicant invoked Section 327 as opposed to seeking judicial review, the ‘net’ position for all parties would appear to be the same, namely: (i) both routes involve the seeking of a public law remedy; (ii) both routes are to the High Court; and (iii) the evidence discloses no prejudice whatsoever by reason of judicial review being pursued.

Date of final Decision: 21 December 2023

Observations

This decision reinforces a number of fundamental points, including:

The decision maker is required to make decisions with respect to the relevant person’s care needs at the time the application was made;

The decision maker shouldn’t supplement or replace reasons in a decision, with better and/or correct reasons after the decision is made; and

There is no absolute obligation to exhaust all potential avenues in all circumstances, including an appeal under Section 318 and/or Section 327, before seeking relief by way of judicial review. Each case should be assessed on its own merits.

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Case Report G0148 – FD v Chief Appeals Officer, Social Welfare Appeals Officer, Minister for Social Protection [2023] IECA 123

Title of Payment: Carer’s Allowance

Date of Final Decision: 24 May 2023

Keywords: Carer’s Allowance; overpayment, summary appeals process; oral hearing; section 317; section 318; alternative remedy; judicial review

Organisation who represented the Claimant: N/A

Casebase No. G0148

Case Summary:

The Court of Appeal in this case was tasked with considering an appeal of the decision of Hyland J in the High Court not to quash a decision of the Chief Appeals Officer (the “CAO”) to determine the Appellant’s social welfare appeal on a summary basis.

Background:

The Appellant appealed a decision of a Deciding Officer which required her to repay €54,184.10 in Carer’s Allowance, on the basis that the Appellant was only entitled to a lower rate of Carer’s Allowance from 2014-2018 and had not been entitled to any Carer’s Allowance from 2018-2019. This decision was made due to the changed financial circumstances of the Appellant from the start date of payment of the Carer’s Allowance of which she had been in receipt. The Deciding Officer stated that its decision was based on sections 179, 181 and 302(b) of the Social Welfare (Consolidation) Act 2005 (the “2005 Act”). The Deciding Officer informed the Appellant she had a right to request a review of this decision by a Deciding Officer or to appeal to the CAO. The Appellant subsequently appealed to the CAO.

Regulation 13 of the SI 108/1998, Social Welfare (Appeals) Regulations 1998 (the “1998 Regulations”) allows the CAO to determine an appeal summarily if they are of the opinion that the case is of such a nature that it can be properly determined without an oral hearing.

The CAO considered the Appellant’s appeal on a summary basis and upheld the decision of the Deciding Officer.

The Applicant issued judicial review proceedings, arguing that in making a decision on a summary basis, the CAO had acted without due regard to fair procedures, natural and constitutional justice and contrary to the provisions of the 2005 Act and the Social Welfare (Appeals) Regulations, 1998 (as amended) (the “1998 Regulations”).

Decision of the High Court

The High Court determined that the fundamental question was whether an oral hearing was necessary to fairly dispose of the appeal. The High Court ultimately rejected the submission that an oral hearing was necessary in the circumstances.

Furthermore, the High Court determined that the Applicant could not succeed in the judicial review in circumstances where there was an alternative remedy available in the form of seeking a revision under section 317 of the 2005 Act.

Substantive issues to be determined

The Court of Appeal noted that the two substantive matters to be determined were as follows:

Did the High Court err in relation to its finding that there existed an alternative appeal remedy, namely s. 317 of the 2005 Act?; and,

If necessary, did the High Court err in holding that an oral hearing was not required?

Key Conclusions:

The Court of Appeal determined that the remedy of revision of an appeal decision of the CAO under s. 317 of the 2005 Act was a “…remedy [that] was suited to [the Appellant’s] concerns; it could have addressed her entitlement to an oral hearing, and it could have provided her with such an oral hearing if deemed necessary.”.

Section 317(1)(a) of the 2005 Act provides that: “An appeals officer may at any time revise any decision of an appeals officer where (a) it appears to him or her that the decision was erroneous in the light of new evidence or new facts which have been brought to his or her notice since the date on which it was given.”

The Court of Appeal concluded that the CAO was obliged to assess each case brought before it for revision on its own merits and therefore, to decide the Applicant’s application for a revision (if such was made) on the strength of such case, under s. 317 of the 2005 Act.

The Court of Appeal did not consider whether the High Court had erred in holding that an oral hearing was not required, as this was rendered moot by its finding that there was an alternative remedy available to the Applicant.

Relevant Legislation:

Social Welfare (Consolidation) Act 2005

SI 108/1998, Social Welfare (Appeals) Regulations, 1998

SI 505/2011, Social Welfare (Appeals) (Amendment) Regulations 2011.

Key Arguments:

The Applicant argued:

That there was a distinction between a revision under s. 317 of the 2005 Act and an appeal, relying upon the decision of the High Court in LD v Chief Appeals Officer [2014] IEHC 641;

That the revision procedure cannot cure the failure of the Chief Appeals Officer not to hold an oral hearing of the Appellant’s appeal;

That an absence of fair procedures at an initial stage may mean that an appeal cannot suffice as an alternative remedy because it does not restore an applicant to the same position that they would have been in had the matter been decided fairly in the first place. The Applicant sought to relying upon Koczan v Financial Services Ombudsman [2010] IEHC 407 and EMI Records (Ireland) Ltd v The Data Protection Commissioner [2014] 1 ILRM 225; and

That an application for revision would not put her in the same position she would have been in had the matter been decided correctly in the first instance, because she had lost her original right to a fair appeal of the decision of the Deciding Officer.

The Respondents argued:

That the Applicant ought not to have proceeded by way of judicial review where she had an alternative appeal mechanism open to her under s.317 of the 2005 Act;

That following the appeal decision, the Appellant could and should have sought a revision during which she could have and should have brought new evidence, relying on the decision of the High Court in LD v Chief Appeals Officer and the decision of the Supreme Court in Petecel v Minister for Social Protection [2020] IESC 25;

That a revision could amount, in an appropriate case, to a full rehearing per LD v Chief Appeals Officer; and,

That the Applicant had failed to exhaust the alternative remedy of seeking a revision under the scheme of appeals/revision set out in the 2005 Act.

Decision of the Court of Appeal:

The Court of Appeal upheld the decision of the High Court.

It found that the Applicant had the ability to request a “revision” of the decision of the CAO, enabling her to have an oral hearing; which constituted an alternative remedy to which she ought to have had recourse; and which alternative remedy she “failed to exhaust” such that she was disentitled to the relief she sought by way of judicial review.

The Court of Appeal also rejected the argument that there would be unfairness in the “revision” (i.e., bad faith), concluding there was no evidence that the Applicant would have been prejudiced in her revision application due to the CAO having previously decided her appeal against her.

The Court of Appeal ruled that it must consider “the underlying grounds upon which the substantive claim for relief is made” (i.e., the decision of the Appeals Officer to decide the Applicant’s claim summarily), which would enable it to decide if there was a fundamental denial of fair procedures or a lack of jurisdiction, such that the availability of an alternative remedy would be irrelevant. If that were the case, then the discretion to refuse jurisdiction (i.e., to refuse an application for judicial review) may not be exercised by the court hearing the application.

The Court of Appeal further pointed to s. 318 of 2005 Act which empowers the CAO to revise an appeal decision not only on new evidence which has been brought to its attention, but also on a point of law. In this regard, the Court of Appeal further confirmed that the power of revision includes the power to hold an oral hearing and the right to review a decision not to grant an oral hearing.

On the basis of the foregoing, the Court of Appeal determined that there was a suitable alternative remedy available to the Applicant which she had failed to exhaust and her judicial review application was denied.

Date of final Decision: 24 May 2023

Observations: This case highlights the importance of considering whether there are alternative remedies available within the social welfare appeals framework which can be exhausted before considering an application for judicial review to the High Court. There is no “one size fits all” approach to all exercises of discretion as to relief by way of judicial review, so each case should be assessed on its own merits. Whether an adequate alternative remedy is available will depend on the nature of the applicants complaint regarding the underlying decision. Furthermore, the case also highlights the broad and wide-ranging power of revision. For example, the revision process can, where appropriate, permit a decision not to provide for an oral hearing to be reversed and it can accommodate an oral hearing itself.

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Case Report G0139: GV v Chief Appeals Officer (C-488 21)

Title of Payment: Disability Allowance

Date of Final Decision: 21 December 2023

Keywords: Preliminary Ruling; EU Citizenship Directive; Free Movement of Workers; Disability Allowance; Right to Reside; Dependant; Family Member; Beneficiaries; Unreasonable Burden

Organisation who represented the Claimant: KOD Lyons Solicitors

Casebase no: G0139

Case Summary:

By way of background, Casebase Report No. G0113 details the judicial review decision of the High Court in Georgeta Voican v. Chief Appeals Officer, Social Welfare Appeals Office, Minister for Employment Affairs and Social Protection, Ireland and the Attorney General [2019] No.748 J.R. The Respondents appealed the High Court ruling to the Court of Appeal, who stayed proceedings in order to submit a preliminary reference to the Courts of Justice of the European Union (“CJEU”) under Article 267 TFEU.

The dispute concerns a Romanian national, GV, who is the mother of AC, another Romanian national residing in Ireland with Irish citizenship by naturalisation, and the question of whether GV, as a direct dependent of AC, is entitled to the payment of disability allowance in Ireland.

This judgment is that of C-488/21 GV v Chief Appeals Officer, in which the Grand Chamber of the CJEU delivered a preliminary ruling on the questions referred to it by the Court of Appeal.

The following questions were referred to the CJEU:

(i) Is the derived right of residence of a direct relative in the ascending line of a Union citizen worker within the meaning of the EU Citizenship Directive conditional upon the continued dependency of that relative on the worker?

(ii) Does the EU Citizenship Directive prevent a host Member State from restricting access to a social assistance payment benefit by a family member of a Union citizen worker who enjoys a derived right of residence on the basis of their dependency, where access to such payment would mean they are no longer dependent on the worker?

(iii) Does the EU Citizenship Directive prevent a host Member State from restricting such access to a social assistance payment benefit by a family member of a Union citizen worker who enjoys a derived right of residence on the basis of their dependency, on the grounds that payment of the benefit will result in the individual concerned becoming an unreasonable burden on the social assistance system of the State?

Relevant Legislation:

Directive 2004/38/EC (“EU Citizenship Directive”), as implemented in Ireland by the European Communities (Free Movement of Persons) Regulations 2015;
Regulation (EC) No 883/2004;
Regulation (EU) No 492/2011;
Social Welfare Consolidation Act 2005.

Key Arguments:

The Minister for Employment Affairs and Social Protection (the “Minister”) argued:

The concept of ‘family member’ within the EU Citizenship Directive includes the dependant direct relatives in the ascending line. Therefore, the parent of a Union citizen shall be a qualifying family member, and thus have a derived right to reside in the host Member State, for so long as they are dependent on the Union citizen.
The EU Citizenship Directive requires that a Union citizen may reside in the State as long as they do not become an unreasonable burden on the social assistance system of the State.
Once a Union citizen receives a social welfare benefit from the State, they: (a) cease to be dependent on their family member; and (b) become financially dependent on the social welfare system of that Member State. On that basis, their relationship of dependency on a family member ceases. Consequently, they fail to meet the requirements for a derived right of residence within the EU Citizenship Directive.

GV argued:

The requirement under Irish law that access to a social welfare benefit by a ‘family member’ within the meaning of the EU Citizenship Directive be contingent upon that person not becoming an ‘unreasonable burden on the social assistance system of the State’ is inconsistent with EU law; and
The position taken by the Minister amounts to a violation of GV’s right to equal treatment.

Decision of the Grand Chamber of the CJEU

The CJEU decided that the status of ‘dependent’ relative in the ascending line cannot be affected by the grant of a social assistance benefit in the host Member State. To decide otherwise would amount to accepting that the grant of such a benefit could result in the person concerned forfeiting the status of dependent family member and, consequently, justify the withdrawal of that benefit or even the loss of his or her right of residence. Such a solution would, in practice, preclude that dependent family member from claiming that benefit and would, for that reason, undermine the equal treatment accorded to the migrant worker.

Therefore EU law must be interpreted as precluding any national legislation of a Member State which allows for the refusal to grant a social welfare benefit to a direct relative who is dependent on an EU citizen worker at the time of making the application, or to withdraw their right to reside, on the grounds that granting that benefit would have the effect that the family member in question would no longer be dependent on the worker and become an unreasonable burden on the social welfare system in that Member State.

Observations:

Now that the CJEU has clarified how the law in question is to be interpreted and applied by national courts, the Court of Appeal must consider the determination of the main proceedings in light of this binding clarification.

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