Devoy v Social Security Commissioner

Article 3 of Regulation 1408/71 secures equal treatment between nationals and non-nationals of Member States regarding family benefits. It does not create a substantive entitlement to benefit within a Member State. Benefit availability and allocation remain matters of domestic law. A general principle against arbitrary discrimination in governmental decision-making does not override domestic legislation or create an entitlement to benefits that legislation does not provide.

The applicant challenged a social security appeal tribunal decision, upheld by the Social Security Commissioner. The Secretary of State had awarded the whole of the claimable child benefit for the parties’ two children to the applicant’s ex-wife. Domestic law permitted that allocation where both parents claimed and there was no agreement, with no appeal against the choice.

The applicant argued that European Union law, the Human Rights Act 1998 and the European Convention on Human Rights gave him an independent entitlement as a partial carer. The issue was whether those sources displaced the domestic allocation provisions or conferred a separate right to benefit.

1. Application refused. Lord Justice Sedley held that permission to appeal should not be granted because the Commissioner was incontestably right.

2. Article 3 of Regulation 1408/71 requires equal treatment between nationals and non-nationals of Member States in relation to benefits provided under domestic legislation. It does not confer a specific entitlement within the Member State.

3. Even accepting that child benefit is a family benefit for the purposes of the Regulation, European Union law did not specify what benefit should be available to particular citizens or in what circumstances. Those matters remained governed by domestic regulation.

4. A domestic principle against arbitrary discrimination in the exercise of governmental powers did not supersede the statutory allocation powers or create an unspecified benefit entitlement. The Secretary of State’s decision accorded with existing law, and no appeal lay against it.

• Court of Appeal (Civil Division): Permission to appeal was refused.
• Social Security Commissioner: The applicant’s European Community law arguments were rejected after an oral hearing on 5 March 2001.
• Social security appeal tribunal and Secretary of State: The tribunal upheld the allocation of the whole claimable child benefit to the applicant’s ex-wife.