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Her Majesty’s HM Revenue and Customs v Ruas
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Justis Editorial (Justis Staff) 30 August 2011

Availability of UK child benefit for children resident in another European Union Member State

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The Civil Division of the Court of Appeal handed down judgment in the case of The Commissioners for Her Majesty’s Revenue and Customs v Ruas [2010] EWCA Civ 291, on the 23rd March 2010. The case concerned the ability of a national of a European Union Member State to claim child benefit for a child not resident in the United Kingdom.

The respondent lived and had previously worked in the United Kingdom and had made National Insurance contributions. At the time of the application the respondent was in receipt of incapacity benefit. Of his three children, only one was UK resident. Child benefit was refused in respect of the two elder, non-resident daughters.

S. 146(1) of the Social Security Contributions and Benefits Act 1992 restricts the receipt of child benefits to those children resident in the United Kingdom. Allowing the respondent’s appeal, the Administrative Appeals Chamber of the Upper Tribunal found an entitlement to United Kingdom child benefit on the basis of EC Council Regulation 1408/71, Article 73, which is directly effective and which provides that family members of a person employed in a different Member State are nonetheless entitled to the family benefits of the employing state and such benefits include child benefit.

Before the Court of Appeal, the appellants argued that the judge had misinterpreted the Regulation, which it was argued applied to those employed or self-employed at the time of the claim, and that there was no link between previous employment and the claim. The question before the court was not whether a claim could be brought in both countries but rather whether the benefit could be claimed in the United Kingdom.

Following the case of Martinez Sala v Freistaat Bayern (Case C-85/96) [1998] ECR I-2691 (“Sala”), the court found that the ECJ did not require that there should be an employment nor that there need be a link between the employment and the benefit claimed. Acknowledging that the Sala case related to different legislative provisions and family benefits, the court found that this did not distinguish it from the instant case. Considering the case of Bestuur van het Algemeen Ziekenfonds Drenthe-Platteland v G. Pierik (Case 182/78) [1979] ECR 1977, the court found that the approach in the Sala case had been subsequently confirmed.

Dismissing the appeal, the court held that there had been no misinterpretation of the regulation, and thus the respondent was entitled to claim United Kingdom child benefit for those children who were not resident in the Member State.

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