Tilianu, R (on the application of) v Secretary of State for Work and Pensions [2010] EWHC 213 (Admin) (15 February 2010)

Tilianu, R (on the application of) v Secretary of State for Work and Pensions [2010] EWHC 213 (Admin) (15 February 2010)

Directive 2004/38/EC does not confer a right to reside on formerly self-employed persons who have ceased self-employment except where temporarily unable to work due to illness or accident. The distinction between workers and self-employed is maintained in both EU and UK law. The Secretary of State and Social Fund Inspector lawfully refused jobseeker's allowance and crisis loan as the claimant did not have a right to reside. The Social Fund Inspector is not strictly bound by the Secretary of State's decision but must give it due weight; in this case, the existence of an Upper Tribunal decision on point was determinative.

Citation
[2010] EWHC 213 (Admin)
Parties
Claimant: Marian Tilianu; 1st Defendant: Social Fund Inspector; 2nd Defendant: Secretary of State for Work and Pensions
Jurisdiction
England and Wales
Judgment Date
15 February 2010
Procedural Posture
Judicial Review / Final Judgment After Substantive Hearing
Outcome
Application for judicial review dismissed
Legal Topics
Right to Reside, Jobseeker's Allowance, Crisis Loan, Habitual Residence Test, EU Directive 2004/38/ec, Distinction Between Worker and Self Employed, Social Fund Inspector's Powers, Interpretation of EU Law
Administrative Law Social Security Law European Union Law Right to Reside Jobseeker's Allowance Crisis Loan Habitual Residence Test EU Directive 2004/38/ec +3 more

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Parties

Marian Tilianu

Claimant

Social Fund Inspector

1st Defendant

Secretary of State for Work and Pensions

2nd Defendant

Procedural Posture

Judicial Review / Final Judgment After Substantive Hearing

Legal Issues

  1. 1 Whether a formerly self-employed EU citizen retains a right to reside for benefit purposes under Directive 2004/38/EC Article 7(3)
  2. 2 Whether the Social Fund Inspector is bound by the Secretary of State's decision on right to reside
  3. 3 Whether refusal of jobseeker's allowance and crisis loan was lawful

Ratio Decidendi

Directive 2004/38/EC does not confer a right to reside on formerly self-employed persons who have ceased self-employment except where temporarily unable to work due to illness or accident. The distinction between workers and self-employed is maintained in both EU and UK law. The Secretary of State and Social Fund Inspector lawfully refused jobseeker's allowance and crisis loan as the claimant did not have a right to reside. The Social Fund Inspector is not strictly bound by the Secretary of State's decision but must give it due weight; in this case, the existence of an Upper Tribunal decision on point was determinative.

Court Disposition

Application for judicial review dismissed

Orders

  • Application for judicial review in relation to both decisions fails and is dismissed