Amirra Harrington v Secretary of State for Work and Pensions

Under the Regulation (EC) No 883/2004, Article 11 is the starting point for deciding which Member State’s legislation applies. An economically inactive child who is an insured person and resides in a Member State falls within the residence rule in Article 11(3)(e), where the domestic conditions for benefit are met. Article 21 protects an insured person and family members from losing cash benefits merely because they reside outside the competent state. It is not a general priority rule displacing legislation selected under Article 11. The single-legislation principle does not create concurrent rights under multiple national systems. The former Regulation 1408/71 provisions support continuity of residence-state priority for cash sickness benefits to family members, unless another provision specifically makes different legislation applicable.

The appellant, a child resident in the United Kingdom, claimed the care component of disability living allowance. Her father was self-employed and resident in Belgium, while her mother and sibling remained in the United Kingdom.

The First-tier Tribunal allowed the appellant’s appeal after finding a difference of view between the United Kingdom and Belgium. The Upper Tribunal, Administrative Appeals Chamber, set that decision aside and held that the appellant was not entitled to the benefit, treating Article 21 of the Regulation (EC) No 883/2004 as giving priority to Belgian legislation. The Administrative Commission later accepted that there was a difference of view but did not finally determine the interpretation issue. The central question was whether the appellant could rely on United Kingdom legislation under Article 11(3)(e), or only on derivative rights under Belgian legislation through her father.

Appeal allowed. The leading judgment was given by Lewis LJ, with Andrews LJ and Baker LJ agreeing.

1. The care component of disability living allowance is a cash sickness benefit for the purposes of the Regulation (EC) No 883/2004. A child may be an insured person under Article 1(c), even though economically inactive, where the child satisfies the conditions for benefit under the legislation of the Member State competent under Title II.
2. Article 11 determines the applicable legislation. The appellant did not fall within Article 11(3)(a) to (d). She therefore fell within Article 11(3)(e), under which the legislation of the Member State of residence applied. The United Kingdom was consequently the applicable state for her benefit.
3. Article 21 did not operate as a priority rule displacing the legislation selected under Article 11(3)(e). Its purpose was to ensure that an insured person and family members did not lose cash benefits under the competent state’s legislation merely because they resided in another Member State. Article 21 was not expressed in the same way as Article 32, which contained an express priority rule for benefits in kind.
4. The history of the legislation supported that interpretation. Article 19(2) of the former Regulation (EC) No 1408/71 gave residence-state legislation priority for family members’ cash benefits, with benefits from the competent state available where no entitlement existed in the state of residence. Nothing in the new Regulation indicated a significant legislative change. The residence-state priority was preserved through Article 1(c) and Article 11(3)(e).
5. The single-legislation principle did not create concurrent rights under the legislation of two Member States. The qualification in Article 11(3)(e) protected benefits guaranteed by another specific provision, but did not establish a general right to claim the same benefit concurrently. If the appellant had no entitlement under United Kingdom legislation, Article 21 could have supported an entitlement under Belgian legislation.
6. The arguments based on the Charter and the United Nations conventions did not require determination. The court doubted that those provisions would materially assist in interpreting the Regulation. Ground 1 was unnecessary to decide, and ground 4 had become academic. The appellant was entitled in her own right to payment of the care component under the relevant United Kingdom legislation.

1. Court of Appeal (Civil Division): appeal allowed. The appellant was entitled to the care component under United Kingdom legislation.
2. Upper Tribunal (Administrative Appeals Chamber), Upper Tribunal Judge Jacobs, CDLA/0882/2017: set aside the First-tier Tribunal’s decision and held that the appellant was not entitled to disability living allowance.
3. First-tier Tribunal: found a difference of view between the United Kingdom and Belgium and allowed the appeal, setting aside the decision discontinuing payment.