January 2014 – Zambrano & the Right to Benefits
In a new judgment, the High Court has considered a challenge to the lawfulness of regulations that exclude claimants whose sole right to reside derives from the decision of the Court of Justice of the European Union in Zambrano, from entitlement to social assistance.
In HC, R (on the application of) v Secretary of State for Work and Pensions & Ors  EWHC 3874 (Admin), the claimant, an Algerian national, had married a British national and had two children with him, both British nationals. After she and the children left the family home due to domestic violence, they were provided with temporary accommodation and small weekly subsistence payments, under section 17 of the Children Act 1989, by Oldham Council.
Any discrimination whether on grounds of nationality or gender, which exists as a result of the Amending Regulations can only be indirect and, in the judgment of Mr Justice Supperstone, can be justified because they -‘… represent a proportionate means of furthering the legitimate aim of protecting scarce public resources, including from individuals who move to, or remain in, the UK in order to take advantage of its welfare system.’
In respect of having regard to the best interests of the children of Zambrano carers, Mr Justice Supperstone held that under the Charter of Fundamental Rights of the European Union there is no general requirement under EU law for Member States to provide parents with a particular level of support, regardless of their right to reside.
Finally, Mr Justice Supperstone held that there was no breach of the public sector equality duty because the relevant Equality Analysis and Equality Statements show that the Defendants were aware of the equality implications of the proposed Amending Regulations. Regard was properly had to countervailing considerations. That being so, it was for the decision maker to determine the weight to be given to the various factors unless the assessment by the decision maker is unreasonable or irrational.
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