Tolley (Deceased) v the Secretary of State for Work And Pensions

Although the Court of Appeal is bound by an earlier Court of Appeal decision on the relevant point, it retains a discretion to refer the question to the CJEU. That discretion should not be exercised where the Supreme Court has recently refused permission in a case raising substantially the same question, and subsequent authorities provide insufficient justification for a reference. The earlier decision therefore remains binding and the appeal cannot be allowed on the basis that it was wrongly decided.

The Secretary of State appealed from the Upper Tribunal’s decision, reported at [2012] UKUT 282 (AAC), which had allowed Linda Tolley’s appeal and held that she remained entitled to the care component of disability living allowance after moving permanently to Spain. The Upper Tribunal considered itself bound by the Court of Appeal’s decision in Commissioners of Her Majesty’s Revenue and Customs v Ruas [2010] EWCA Civ 291. The Secretary of State argued that Ruas was wrongly decided and sought a reference to the CJEU, relying on Elchinov and later authorities. The central issue was whether a reference should be made despite Ruas and the Supreme Court’s recent refusal of permission in that litigation.

1. Appeal dismissed. Lord Justice Sullivan gave the substantive judgment. Lord Justice Floyd and Lord Justice Jackson agreed.
2. The Court of Appeal accepted that Ruas [2010] EWCA Civ 291 was binding. The Secretary of State’s proposed result would have been plainly inconsistent with that decision. The same issue had been raised in Ruas, where the Court of Appeal had declined to make a reference to the CJEU.
3. The Supreme Court had subsequently refused permission to appeal in Ruas. Its reasons included that the European law issue had already been interpreted by the CJEU in Martinez Sala v Freistaat Bayern [1998] ECR I-2691. The Secretary of State accepted that the Supreme Court’s reference to the issue having been interpreted in Sala reflected the Court of Appeal’s understanding in Ruas.
4. The court recognised that Elchinov [2011] 1 CMLR 29 demonstrated a discretion to make a reference notwithstanding binding domestic authority. That discretion depended on whether a reference was appropriate. Lord Justice Sullivan was not persuaded that the later authorities identified by the Secretary of State provided sufficient justification, particularly where the Supreme Court had recently declined to refer substantially the same question.
5. The court therefore declined to make a reference. Since Ruas remained binding, it could not allow the appeal by treating that decision as wrongly decided. The order was: appeal dismissed.

• Court of Appeal (Civil Division): In the present judgment, reported at [2013] EWCA Civ 1471, the appeal was dismissed.
• Upper Tribunal (Administrative Appeals Chamber): In the decision reported at [2012] UKUT 282 (AAC), the respondent’s appeal from the First-tier Tribunal was allowed and entitlement to the care component of disability living allowance after permanent relocation to Spain was upheld.
• First-tier Tribunal: The respondent’s earlier appeal was determined there; the judgment gives no citation or further details of that decision.