The Secretary of State for Work and Pensions v Fileccia

For the purposes of Article 6(2) of Regulation 987/2009, a difference in views between Member States does not require a formal dispute or conflicting written decisions. It may arise from different positions taken by the relevant institutions or authorised representatives about which State is competent to provide benefits. The issue is evidential, and no particular form of evidence is prescribed. Reliable oral or informal evidence may suffice. The provision must be construed purposively so that claimants receive provisional protection while competence is resolved between Member States. A specialist tribunal’s assessment of whether the evidence establishes differing views is entitled to appropriate respect on appeal.

Mr Fileccia, an Italian national resident in the United Kingdom and recipient of a French state pension, claimed carer’s allowance under the Social Security Contributions and Benefits Act 1992. The Secretary of State refused the claim on the basis that the United Kingdom was not the competent Member State. The First-tier Tribunal allowed the claim. On appeal, the Upper Tribunal set that decision aside and remade it, directing the Secretary of State to investigate the claim and, if domestic entitlement was established, make a provisional award under Article 6(2) of Regulation 987/2009.

The Secretary of State appealed, arguing that no difference in views had arisen without a formal French decision and that the evidence was insufficient. The central issue was the meaning of a difference in views and the evidence required to establish it.

Appeal dismissed. Asplin LJ gave the leading judgment. Lindblom LJ agreed with both judgments, and Sales LJ agreed with Asplin LJ’s reasons.

1. The difference in views contemplated by Article 6(2) concerns the competent Member State, not the claimant’s substantive eligibility. Read against Regulation (EC) No 883/2004, Regulation 987/2009 and Decision A1, the scheme is intended to provide coordinated, accessible and rapid protection while competence is resolved between institutions.
2. A formal dispute evidenced by conflicting written decisions is unnecessary. Article 6(2) covers circumstances ranging from formal decisions to less formal expressions of different views by a Member State or an authorised representative. Article 6(3) supports that construction: the difference arises before any agreement and persists in the absence of agreement.
3. The question for the decision-maker or tribunal is whether the available evidence is sufficient to establish that the competing States hold different views on competence. Article 6(2) prescribes no particular form of evidence. On the contents of Mr Fileccia’s letter and the Secretary of State’s submissions stating that France had refused the benefit because he did not live there, the Upper Tribunal was entitled to find a difference in views. Its conclusion was neither perverse nor irrational.
4. The operation of Article 6(2) is not conditional on a comparable benefit being payable in the other State or on provisional payments being recoverable. Those matters were irrelevant to whether the provision was triggered. Where there is doubt about the other State’s position, the claim can be forwarded without delay under Article 81 of Regulation (EC) No 883/2004.
5. The Court gave weight to the practical and purposive approach adopted in Secretary of State for Work and Pensions v HR [2014] UKUT 0571 (AAC) and to the guidance concerning specialist tribunals in R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19. Sales LJ added that he would leave open whether that guidance should be modified where a question of EU-law interpretation might warrant a reference to the CJEU.

• Court of Appeal (Civil Division) — dismissed the Secretary of State’s appeal and upheld the Upper Tribunal’s application of Article 6(2).
• Upper Tribunal (Administrative Appeals Chamber) — on 3 September 2015 set aside the First-tier Tribunal’s decision for error of law, remade the decision and directed investigation of the claim and, if necessary, a provisional award.
• First-tier Tribunal — by a paper decision dated 21 January 2014 allowed the claim, treating the United Kingdom as the competent State under Article 11(3)(e) of Regulation (EC) No 883/2004.