The Secretary of State v AH

For entitlement to carer’s allowance under EU social-security coordination rules, the competent Member State is determined by reference to the claimant’s circumstances. The fact that the cared-for person receives a related sickness benefit from another Member State does not transfer competence for the carer’s cash sickness benefit.

A self-employed claimant is subject to the legislation of the Member State in which that activity is pursued under Article 11.3(a) of Regulation (EC) No 883/2004. The classification of carer’s allowance as a sickness benefit does not create an exception to that claimant-centred rule.

The Secretary of State appealed against a First-tier Tribunal decision of 19 March 2015 which had allowed AH’s appeal concerning carer’s allowance.

AH had lived and worked on a self-employed basis in Portugal. She claimed carer’s allowance for caring there for her grandmother, who received attendance allowance from the United Kingdom. The First-tier Tribunal held that the United Kingdom was competent to pay carer’s allowance because the two benefits were inseparably connected and both were sickness benefits.

The issue before the Upper Tribunal was whether competence for AH’s carer’s allowance depended on the United Kingdom’s responsibility for sickness benefits payable to her grandmother, or on AH’s own circumstances under Regulation (EC) No 883/2004.

1. Appeal allowed. The First-tier Tribunal had erred in law. Its decision was set aside and remade so that AH’s appeal against the Secretary of State’s refusal was dismissed.

2. Section 70(4A) of the Social Security Contributions and Benefits Act 1992 makes clear that the relevant question is which state is competent to pay cash sickness benefits to the claimant. Although that domestic provision could not preclude a contrary consequence required by EU law, it correctly reflected the applicable claimant-centred approach.

3. Under Article 11.3(a) of Regulation (EC) No 883/2004, a person pursuing self-employed activity in a Member State is subject to that state’s legislation. Unless the Regulation expressly provides otherwise, competence for a claimant’s cash sickness benefit must therefore be determined by the claimant’s circumstances, not those of another person who may benefit from payment.

4. The grandmother’s entitlement to attendance allowance was governed by the special sickness-benefit provisions applicable to pensioners. Those provisions did not assist AH. As a self-employed person in Portugal, AH was subject to Portuguese legislation and Portugal was the competent state for her sickness benefits.

5. The classification of carer’s allowance as a sickness benefit in Commission of the European Communities v European Parliament did not justify an exception. Carer’s allowance might benefit both the carer and the cared-for person, but that did not displace the Regulation’s rule that competence is assessed by reference to the claimant.

• Upper Tribunal (Administrative Appeals Chamber): allowed the Secretary of State’s appeal, set aside the First-tier Tribunal’s decision, and remade it by dismissing AH’s appeal against the refusal of carer’s allowance.
• First-tier Tribunal: on 19 March 2015, allowed AH’s appeal on the basis that the United Kingdom was competent to pay carer’s allowance because of its responsibility for the grandmother’s attendance allowance.