Konevod v Secretary of State for Work And Pensions

Under Regulation (EC) No 883/2004, Title II determines the single Member State whose legislation applies. For a person outside the special categories in Article 11(3)(a)–(d), Article 11(3)(e) makes the state of habitual residence the applicable state. In Article 21, the competent Member State has the same meaning. A claimant must first qualify as an insured person in relation to the claimed benefit under the legislation of that state. Previous UK contributions or pension entitlement do not make the United Kingdom competent for every later claim. Carer’s allowance and attendance allowance remain separate benefits, and their domestic relationship cannot alter the Regulation’s allocation of competence without express EU provision.

The appellant had formerly lived and worked in the United Kingdom but had moved to Cyprus to care for a UK pensioner who received attendance allowance. He made a new claim for UK carer’s allowance after the move. The Secretary of State refused the claim on the basis that Cyprus, rather than the United Kingdom, was responsible for sickness benefits. The First-tier Tribunal and the Upper Tribunal reached the same conclusion. The appeal from the Upper Tribunal decision, reported at [2019] UKUT 87 (AAC), concerned whether the United Kingdom was the competent Member State under Article 21 of Regulation (EC) No 883/2004, and whether the connection between carer’s allowance and attendance allowance altered that result.

Sir Stephen Richards gave the judgment of the court. Lady Justice Simler and Lord Justice Moylan agreed. The appeal was dismissed.

1. Applicable legislation. The principle of single applicable legislation required the analysis to begin under Title II of Regulation (EC) No 883/2004. The appellant did not fall within Article 11(3)(a)–(d). Article 11(3)(e) therefore made him subject to the legislation of his state of habitual residence, Cyprus. Its saving words preserved the possible operation of other provisions guaranteeing benefits under another state’s legislation, but did not themselves make the United Kingdom competent.
2. Article 21. The first question was whether the appellant was an insured person within Article 1(c) in respect of his claim to UK benefit. That required satisfaction of the conditions for benefit under the legislation of the Member State competent under Title II. The competent Member State in Article 21 was likewise the state whose legislation applied under Title II. The appellant’s UK insurance history and entitlement to an old-age pension did not make him insured in respect of a new claim for UK carer’s allowance. Treating the DWP as the competent institution by reference to Article 1(q)(i) would cut across the Regulation’s scheme.
3. Authorities and the alternative ground. Tolley, under the predecessor Regulation, concerned the export of an existing benefit or accrued right and turned on Article 22(1)(b), which has no equivalent in Regulation 883/2004. It did not determine this new post-move claim. The earlier decisions in Coppola, Twomey and Hosse supported linking the competent state to the applicable legislation, although the former place-of-last-work rule did not survive the later legislation. The close relationship between carer’s allowance and attendance allowance did not alter the result. They were separate benefits, with different conditions, claimants and payees. The natural meaning of the EU instrument could not be distorted by domestic classifications. Since Cyprus was competent, section 70(4A) of the Social Security (Contributions and Benefits) Act 1972 excluded entitlement to UK carer’s allowance.

• Court of Appeal (Civil Division): appeal dismissed. [2020] EWCA Civ 809.
• Upper Tribunal (Administrative Appeals Chamber): appeal dismissed; Cyprus was the competent Member State under Article 21. [2019] UKUT 87 (AAC).
• First-tier Tribunal: the appellant’s appeal was unsuccessful; citation not stated in the judgment.