JG v Secretary of State for Work and Pensions (CA)

For a new claim to a sickness benefit under Regulation (EEC) 1408/71, the competent State is identified first under Title II. Article 19 operates only after that identification; it does not itself select a competent State.

Where a formerly employed claimant has transferred habitual residence to another Member State and has no acquired right to a contributory benefit from the former State, the residence rule in article 13(2)(f), read with Annex VI, makes the State of residence competent. The institutions of the former State cannot become competent merely because they might otherwise administer a related benefit. Attendance allowance and carer’s allowance remain separate benefits for this purpose.

The claimant and her mother moved from the United Kingdom to France in 2003. The mother later became entitled to attendance allowance from 18 October 2007. In 2010, while both were habitually resident in France, the claimant made claims to the United Kingdom for carer’s allowance from 18 October 2007.

The Secretary of State decided that the United Kingdom was not the competent State. The First-tier Tribunal, reference SC064/10/03306, confirmed that decision on 11 May 2011. The claimant appealed with permission to the Upper Tribunal.

The central issues were whether the claimant remained within Regulation (EEC) 1408/71, which State was competent for a new sickness-benefit claim, and whether the mother’s attendance allowance could make the United Kingdom competent for the claimant’s carer’s allowance.

1. Appeal dismissed. The First-tier Tribunal made no error of law in confirming the refusal of carer’s allowance.

2. The claimant was an employed person for the purposes of Regulation (EEC) 1408/71. Following Secretary of State for Work and Pensions v Tolley, Case C-430/15 EU:C:2017:74, insurance against a single covered risk was sufficient. It did not matter that the risk had not materialised or that occupational activity had ceased. That reasoning was not confined to the export of an existing benefit and applied to a new claim.

3. Article 13 and Title II comprehensively determine the applicable legislation. Article 19 presupposes, rather than identifies, a competent State. Once the claimant had moved her habitual residence to France, United Kingdom legislation had ceased to apply under article 13(2)(f) and point 19(a) of Annex VI. She had no acquired right to a contributory benefit capable of preserving United Kingdom competence.

4. The institution and competent institution must administer the legislation identified under article 13. As French legislation applied, the competent institution, and therefore the competent State, was France. Article 86 provided the mechanism for a claim made to the wrong State to be forwarded.

5. Section 70(4A) of the Social Security Contributions and Benefits Act 1992 was declaratory of the pre-existing EU-law position. The United Kingdom was neither obliged nor permitted to confer this domestic entitlement when it was not the competent State. The limited exception for particularly close connecting factors did not apply after both relevant persons had long lived in France.

6. Attendance allowance and carer’s allowance could not be treated as one benefit. They require separate claims, are governed by different legislation, and are claimed by different people. The former benefit’s condition-precedent relationship with the latter did not transfer competence between claimants.

• Upper Tribunal (Administrative Appeals Chamber): Appeal dismissed; the First-tier Tribunal’s decision involved no error of law.
• First-tier Tribunal: Reference SC064/10/03306, Liverpool, 11 May 2011. It confirmed the Secretary of State’s refusal of carer’s allowance.