The Secretary of State for Work and Pensions v Fileccia

This appeal concerned the meaning of the phrase "a difference in views" in Article 6(2) of Regulation 987/2009 (the implementing Regulation) and the nature of the evidence needed to establish such a difference. The Court of Appeal upheld the Upper Tribunal's construction that a formal written dispute between Member State institutions is not required; a range of evidence, including cogent oral or documentary material, may suffice to show that two Member States hold different views as to which is the competent State to pay cash benefits. On the facts the Upper Tribunal was entitled to find that Article 6(2) was engaged because the material before it (the claimant's contemporaneous letter and the Secretary of State's own submissions) was sufficient to satisfy the tribunal that France and the United Kingdom held differing views on competence. The Court emphasised a purposive construction of Article 6(2) consistent with the implementing Regulation's objective of rapid protection for vulnerable persons.

Background and parties: The respondent, an Italian national resident in Scotland who received a French state pension, applied for a United Kingdom carer’s allowance which the Secretary of State for Work and Pensions refused on the ground that the United Kingdom was not the competent State. The First-tier Tribunal (FTT) originally awarded entitlement under Article 11(3)(e) of Regulation 883/2004. The Secretary of State appealed to the Upper Tribunal (UT). UT Judge Jacobs set aside the FTT decision and remade it, directing the Secretary of State to investigate, decide the claim and, if appropriate, make provisional payment under Article 6(2) of Regulation 987/2009.

Relief sought and procedural posture: The Secretary of State appealed from the UT to the Court of Appeal seeking to quash the UT's finding that Article 6(2) applied. The appellant contended that a formal decision or clear documentary denial of competence by the other Member State was required and that the UT had relied improperly on hearsay evidence from the claimant.

Issues framed: (i) What does "a difference in views" mean for Article 6(2) of the implementing Regulation; (ii) what evidence suffices to establish such a difference; and (iii) whether UT Judge Jacobs erred in finding Article 6(2) applied on the evidence before him.

Court’s reasoning: The Court analysed the implementing Regulation, its preamble, related provisions (notably Articles 2, 3, 5 and 6) and Decision A1 of the Administrative Commission. It adopted a purposive approach: Article 6(2) is designed to protect individuals by enabling provisional application of the law of the place of residence where Member States hold different views on competence, and this protection would be nullified by a requirement of formal written decisions. The Court agreed with the UT that a "difference in views" covers a spectrum from conflicting formal decisions to less formal but cogent expressions of the other Member State's stance by authorised representatives or consistent practice. The UT was entitled to assess the evidence (including the claimant's dated letter and the Secretary of State's submissions indicating a French refusal) and conclude that a difference of views existed; the approach to factual evaluation by the specialist tribunal was entitled to respect. The Court also relied on prior UT authority (HR) and domestic supervisory guidance (R (Jones) v First-tier Tribunal) on the respective roles of specialist tribunals and appellate courts.

Subsidiary findings and implications: The Court rejected the submission that provisional payments under Article 6(2) should be contingent on recoverability from the other State or on the existence of a comparable benefit in that State. It confirmed that the obligation to pay provisionally is triggered by a difference of views and that Member States have procedural means (for example Article 81 and Decision A1) to seek clarity or recourse.

Appeal dismissed. The Court held that Article 6(2) of Regulation 987/2009 does not require a formal written decision or dispute between Member States for there to be "a difference in views"; cogent evidence, including contemporaneous statements and submissions before the tribunal, can suffice. On the evidence available the Upper Tribunal was entitled to conclude that a difference of views existed and that provisional measures under Article 6(2) should be applied.

Appeal from the Upper Tribunal (Administrative Appeals Chamber), case CPC/1026/2014, following a First-tier Tribunal decision of 21 January 2014 in favour of the claimant. The Upper Tribunal (Judge Jacobs) set aside the FTT decision and remade it on 3 September 2015, directing investigation and provisional payment under Article 6(2) of Regulation 987/2009. The Secretary of State appealed to the Court of Appeal, which delivered this judgment, [2017] EWCA Civ 1907.