Court of Appeal gives judgment on the scope of EU coordination and conflict of laws rules and on references to the CJEU under the Withdrawal Agreement

The Court of Appeal has handed down judgment in Simkova v SSWP [2024] EWCA Civ 419, which involved an appeal against a decision of the Upper Tribunal (AAC).

The Upper Tribunal had held that the child element of universal credit was not a “social security benefit” for the purposes of Regulation 883/2004 – the EU regulation that contains coordination and conflict of laws rules that apply to EU member-states’ social security systems. The Upper Tribunal had also held that a reference could not be made to the European Court of Justice under the Withdrawal Agreement unless it concerned the interpretation of the Withdrawal Agreement, which it did not because the issue in the case concerned the interpretation of Regulation 883/2004.

The Appellant challenged both of these conclusions before the Court of Appeal, but the Court of Appeal (Lewison, Green and Laing LJJ) dismissed the appeal. The Court held that the child element of universal credit was not capable of being “severed” from universal credit, such that the child element could constitute a discrete “social security benefit” for the purposes of Regulation 883/2004, in light of the purpose and context of Regulation 883/2004 as well as the CJEU’s decision in Case 122/84 Vera Hoeckx v Centre Public D’aide Sociale de Kalmthout [1985] ECR 973. The Court then considered, in light of this clear conclusion, that it was not necessary for the Court to make a reference to the CJEU under Article 158 of the Withdrawal Agreement.

Julia Smyth and Barney McCay acted for the successful SSWP.