S.E. v SECRETARY OF STATE FOR WORK AND PENSIONS

Articles governing sickness benefits for pensioners and their family members may confer an entitlement to cash benefits from the pension-paying state. They do not, without clear language, remove an otherwise existing entitlement under the legislation of the state of residence. The general rule that the applicable legislation is that of a single Member State remains important. A special rule in Title III must clearly displace that entitlement before it can operate as a rule of priority. The same approach applies under both Regulations where the later provision is materially derived from the earlier one.

The appellant lived in the United Kingdom and satisfied the domestic conditions for Carer’s Allowance. Her husband received a Swiss disability pension. The Secretary of State decided that Switzerland, rather than the United Kingdom, was the competent state for payment of cash sickness benefits. The First-tier Tribunal held that the appellant was not entitled to Carer’s Allowance from 18 October 2007.

The appeal concerned the effect of Articles 28 and 29 of Regulations (EC) Nos 1408/71 and 883/2004 respectively, and whether the question concerning the earlier period was academic. The Upper Tribunal also considered the significance of Harrington v Secretary of State for Work and Pensions, which concerned a related provision.

1. Appeal and academic issue. The appeal was allowed and the First-tier Tribunal’s decision was set aside. The issue concerning 2007 to 2018 was not academic. There remained a formal decision affecting the appellant’s entitlement and potentially her credited national insurance contributions. In any event, the issue formed part of the legal analysis required to determine the position under the later Regulation.
2. Regulation 1408/71. Article 28 applied where a pensioner was not entitled to benefits in the state of residence. Properly construed, it did not remove an entitlement to cash sickness benefits which the pensioner or a family member otherwise had under the legislation of the state of residence. Its purpose was to ensure that the pensioner and family were not left without assistance. It did not create a rule of priority in favour of the pension-paying state.
3. Regulation 883/2004. The appellant was subject to United Kingdom legislation under Article 11(3)(e). Following Konevod v Secretary of State for Work and Pensions and Harrington v Secretary of State for Work and Pensions, the starting point for identifying the competent state was the state whose legislation applied under Title II. Articles 24 and 25 did not remove entitlement to benefits in kind in the state of residence. Article 29, read in that context and alongside Article 21, likewise did not clearly displace entitlement to cash benefits under the applicable legislation of the state of residence.
4. The contrary construction would produce anomalous results and tend to deter free movement. The principle that a person is subject to the legislation of a single state was respected by treating the United Kingdom as the competent state for the appellant.
5. Outcome. The Upper Tribunal re-made the decision under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007. The appellant was entitled to Carer’s Allowance from 12 November 2018. Her earlier entitlement from 2007 to 2018 remained in place.

• First-tier Tribunal (Social Entitlement Chamber): decided on 16 September 2021, with reasons dated 21 September 2021, that Switzerland was the competent state and that the appellant was not entitled to Carer’s Allowance from 18 October 2007.
• Upper Tribunal (Administrative Appeals Chamber): appeal allowed; decision set aside and entitlement to Carer’s Allowance from 12 November 2018 declared. The earlier entitlement was restored.