Secretary of State for Work and Pensions v TG (DLA)

Under Regulation (EC) 883/2004, Title II comprehensively identifies the applicable social-security legislation. Title III then regulates the consequences of that identification. A sickness-benefit claimant who is not currently pursuing employed or self-employed activity is ordinarily subject to the legislation of the Member State of habitual residence.

Article 21 does not itself identify a competent State. It applies only after that State has been identified under Title II. The competent institution must administer the legislation so identified. A non-competent State is neither required nor generally permitted to confer domestic entitlement, absent specific and particularly close connecting factors that preserve the predictability and effectiveness of coordination rules.

The claimant moved to Cyprus in 2007. In 2012, while habitually resident there, he made a new claim to the United Kingdom for disability living allowance. The Secretary of State refused the claim.

The First-tier Tribunal at Blackpool allowed the claimant’s appeal on 1 March 2013. The Secretary of State appealed to the Upper Tribunal. The central issue was whether, under Regulation (EC) 883/2004, the United Kingdom remained the competent State for a new claim for the care component of disability living allowance.

1. Appeal allowed. The First-tier Tribunal erred in applying Regulation (EEC) 1408/71. The claim was made after Regulation (EC) 883/2004 came into force, so that Regulation governed the claim.
2. The mobility component was a special non-contributory cash benefit. By Article 70, it was payable only in the State in which the claimant was habitually resident. The claimant was therefore not entitled to that component while habitually resident outside the United Kingdom.
3. For the care component, Title II of Regulation 883/2004 comprehensively determined the applicable legislation. Article 21 did not identify the competent State; it presupposed a competent State already identified under Article 11. Title III made consequential provision for benefits once that identification had been made.
4. The claimant was not currently pursuing employed or self-employed activity. The place-of-work rule in Article 11(3)(a) therefore did not apply. The place-of-residence rule in Article 11(3)(e) applied instead, making Cypriot legislation applicable. The claimant had no acquired right to disability living allowance capable of creating an exception.
5. The institution, and therefore the competent institution, had to be one administering the legislation identified under Article 11. As that legislation was Cypriot, Cyprus was the competent State. The United Kingdom could not become competent through the definitions of institution or competent institution.
6. Section 72(7B) of the Social Security Contributions and Benefits Act 1992 precluded United Kingdom domestic entitlement. EU law imposed no duty on the United Kingdom to provide the care component. There were no specific and particularly close connecting factors with the United Kingdom, and recognising entitlement would undermine the Regulation’s coordinated single-State system.

The First-tier Tribunal’s decision was set aside. The decision was remade by confirming the Secretary of State’s refusal of disability living allowance.

• Upper Tribunal (Administrative Appeals Chamber): allowed the Secretary of State’s appeal, set aside the First-tier Tribunal’s decision for error of law, and remade it by confirming the refusal.
• First-tier Tribunal: at Blackpool, on 1 March 2013, allowed the claimant’s appeal against the refusal of disability living allowance.