Court of Appeal hears case on the scope of EU coordination and conflict of laws rules and the procedure for making a reference to the CJEU under the Withdrawal Agreement

This week, the Court of Appeal heard an appeal against the decision of the Upper Tribunal in SSWP v MS (UC): [2023] UKUT 44 (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 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 (Lewison, Green and Laing LJJ). SSWP defended the appeal on the basis that universal credit, as a global, indivisible benefit, could not be “severed” into different benefits and so the child element of universal credit could not be treated as a social security benefit in its own right. SSWP also argued that a reference to the European Court of Justice was unnecessary given that the law was clear; and, in any event, the domestic courts did not have jurisdiction to make a reference under article 158 of the Withdrawal Agreement because the case concerned a decision made before the relevant provisions of the Withdrawal Agreement were in force.

Julia Smyth and Barney McCay acted for SSWP.