LD v Secretary of State for Work and Pensions

For the purposes of Regulation (EC) 883/2004, whether a payment is a pension depends on the Regulation’s context and structure, rather than on a general domestic or ordinary-language definition. A Dutch survivor’s pension identified in Annex XI as falling within the provisions on old-age and survivors’ pensions is a pension.

The care component of disability living allowance is a cash sickness benefit, not a pension. Where another Member State is the competent State for sickness benefits, section 72(7B) prevents entitlement under United Kingdom legislation. A Member State may make additional provision, but is not required to do so unless the co-ordination rules’ predictability and effectiveness would not be disproportionately affected and the further conditions identified in the case law arise.

The claimant, a British national who had worked only in the United Kingdom, lived in the Netherlands and received a Dutch survivor’s benefit after her husband’s death. She had received disability living allowance from September 2008.

In October 2014 the Secretary of State superseded that award. The decision-maker concluded that, from October 2011, the Dutch survivor’s pension made the Netherlands the competent State for cash sickness benefits under Regulation (EC) 883/2004. The First-tier Tribunal dismissed the claimant’s appeal.

The claimant appealed to the Upper Tribunal. The issues were whether the Dutch payment and disability living allowance were pensions for the Regulation’s purposes, whether the United Kingdom remained obliged to pay disability living allowance, and whether Article 11(2) or Article 81 altered the result.

1. Appeal dismissed. The First-tier Tribunal made no error of law. The claimant’s Dutch survivor’s benefit was a pension for the purposes of Regulation (EC) 883/2004. Annex XI expressly connected that benefit with the Regulation’s chapter on old-age and survivors’ pensions. Its classification could not be displaced by a general definition of “pension” derived from ordinary language or domestic legislation.

2. The care component of disability living allowance was a cash sickness benefit and not a pension. The Upper Tribunal relied on EU:C:2007:608 and EU:C:2017:74 for its classification as sickness benefit, and found no material difference between the earlier Regulation and Regulation 883/2004. Article 29 also treated a cash sickness benefit and a pension as distinct categories.

3. Section 72(7B) of the Social Security Contributions and Benefits Act 1992 therefore excluded entitlement because the United Kingdom was not the competent State for cash sickness benefits. The Regulation coordinates national schemes; it does not require a State to provide a particular class of benefit. A non-competent State may choose to provide benefits, but the argument that it must do so failed at the prior question whether payment would disproportionately affect the predictability and effectiveness of the co-ordination rules. The alleged consequential losses did not need consideration.

4. Article 11(2) did not apply. Disability living allowance was received because of the claimant’s disabilities and resulting needs, not because of or as a consequence of employment activity. Article 81 required the non-competent State to transmit the material necessary to establish and determine the claimant’s rights; on the Secretary of State’s concession, this included the award decision, original claim and medical evidence available in this case.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal and held that the First-tier Tribunal had made no error of law.
• First-tier Tribunal: dismissed the claimant’s appeal against the Secretary of State’s superseding decision on 23 June 2015 at Cambridge (reference SC064/14/00932).