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Johnson v. Chief Adjudication Officer [1994] UKSSCSC CS_111_1989 (06 December 1994)

R(S) 1/95

(Johnson v. Chief Adjudication Officer (C-31/90 and C-410/92))

ECJ (J. C. Moitinho, President of the Fifth Chamber, CS/111/1989

J. C. Rodríguez Iglesias, Sir Gordon Slynn,

R. Joliet and M. Zuleeg, Judges; Advocate

General: M Darmon

Mr. M. J. Goodman, Mr. A. T. Hoolahan QC,

and Mr. R. A. Sanders

ECJ (G. C. Rodríguez, President, R. Joliet,

F. A. Schockweiler and P. J. G. Kapteyn

(Presidents of Chambers), G. F. Mancini,

C. N. Kakouris, J. C. Moitinho de Ameida,

J. L. Murray and D. A. O. Edward, Judges;

Advocate General: C. Gulmann

Severe disablement allowance - whether transitional provisions from non-contributory invalidity benefit were contrary to Council Directive 79/7/EEC and discriminatory - whether restrictions on backdating a claim were contrary to Council Directive 79/7/EEC and discriminatory

The claimant gave up work to care for her daughter. When her daughter left school, the claimant was required to be available for employment, and began to apply for work. However, before she could get a job, she became incapable of work and was awarded non-contributory invalidity benefit. She continued to receive this benefit until she began to cohabit with her partner. Entitlement then ceased because she was unable to fulfil an additional "household duties" condition imposed on women who cohabited.

From 29 November 1984, non-contributory invalidity benefit was replaced by severe disablement allowance. Those claimants who were entitled to non-contributory invalidity benefit immediately prior to its abolition were automatically entitled to severe disablement allowance. On 17 August 1987, Mrs. Johnson applied for severe disablement allowance, arguing that she would have been entitled to non-contributory invalidity benefit at the material date had she not been required to fulfil the additional "household duties" condition, which had been held by the European Court of Justice to be discriminatory. She sought to rely upon Council Directive 79/7/EEC. Her claim was rejected by an adjudication officer and by a social security appeal tribunal. The claimant appealed.

A tribunal of Commissioners referred questions as to the effect of Council Directive 79/7/EEC on those facts to the European Court of Justice for a preliminary ruling.

Held, by the European Court of Justice, sitting on 11 July 1991, that:

a person who has interrupted his or her working life to look after a child was not a member of the "working population" within the meaning of Article 2 of the directive;

however, a person is a member of the "working population" if he or she has begun to seek employment, regardless of whether he or she originally left the labour market to look after a child or was previously never part of the labour market;

such a person will be covered by the directive if any of the risks in Article 3 (including becoming incapable of work) materialise whilst seeking employment;

whether a person is seeking employment when one of the Article 3 risks materialises is for the national court or tribunal to decide;

a transitional provision which makes entitlement to severe disablement allowance dependant on a prior claim for non-contributory invalidity benefit perpetuates the discriminatory effect of the "household duties" condition for that benefit, and is contrary to Article 4. Where female claimants are disadvantaged by the provision, it should be disapplied;

Article 4 is "directly effective", and can be relied upon by a claimant in national proceedings.

The Court remitted the case to the tribunal of Commissioners. The Commissioners found that Mrs. Johnson was part of the working population when she became incapable of work. Applying the court's judgment, the tribunal decided that she was entitled to severe disablement allowance. Entitlement was backdated to twelve months before date of claim pursuant to section 165A of the Social Security Act 1975, which did not allow for further backdating. The claimant appealed to the Court of Appeal, which made a further reference to the European Court of Justice for a preliminary ruling on whether the limitation on backdating was contrary to Council Directive 79/7/EEC.

Held, by the European Court of Justice, sitting on 6 December 1994, that:

the restriction on backdating was not contrary to Council Directive 79/7/EEC as it did not make impossible the exercise of rights under Article 4, but merely limited the arrears which were payable when a claim relying on the directive was made;

the restrictions were not less favourable than those applied to purely domestic cases.

The case was remitted back to the Court of Appeal.

FIRST DECISION OF THE EUROPEAN COURT OF JUSTICE

Mr. R. Drabble, Barrister, instructed by V. Chapman, Solicitor, London, for Mrs. Johnson.

Mr. R. Jay, Barrister and J. Laws, Barrister and H. A. Kaya, of the Treasury Solicitor's Department, agent, for the United Kingdom.

K. Banks, of its Legal Service, agent, for the Commission of the European Communities.

The Opinion of the Advocate General was delivered on 5 March 1991 and is reported at [1991] ECR I-3738.

JUDGMENT

By a decision of 25 January 1990, which was received at the Court Registry on 31 January 1990, the social security Commissioners referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty four questions on the interpretation of Articles 2 and 4 of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (Official Journal 1979 No. L 6, p. 24).

Those questions were raised in proceedings before the social security Commissioners between Elsie Rita Johnson and the adjudication officer concerning the latter's refusal to grant Mrs. Johnson her claim for severe disablement allowance.

It appears from the documents before the Court that Mrs. Johnson ceased working in about 1970 to look after her daughter, who was then aged six and with whom she lived alone. In 1980 she wished to resume working but was unable to do so because of a back condition. In 1981, by reason of her incapacity for work she was awarded a non-contributory invalidity pension pursuant to section 36(2) of the Social Security Act 1975 which was then in force. However, payment of the non-contributory invalidity pension was stopped when Mrs. Johnson began to cohabit with her present partner on the ground that she could not establish that she fulfilled the additional condition imposed by section 36(2) on cohabiting women, namely that she should be incapable of performing normal household duties.

By section 11 of the Health and Social Security Act 1984 the non-contributory invalidity pension was abolished as from 20 November 1984 and the new benefit, the severe disablement allowance, which was open to claimants of both sexes on the same conditions, was introduced with effect from 29 November 1984. However, regulation 20(1) of the Social Security (Severe Disablement Allowance) Regulations 1984 allowed persons who could have claimed the old non-contributory invalidity pension to benefit automatically from the new severe disablement allowance as from 29 November 1984 without having to show that they fulfilled the new conditions.

On 17 August 1987, Mrs. Johnson made a claim through a Citizens Advice Bureau for a severe disablement allowance based on regulation 20(1) of the Social Security (Severe Disablement Allowance) Regulations 1984. She claimed that she would have been entitled to the non-contributory invalidity pension during the period immediately preceding 29 November 1984 were it not for the household duties test which constituted an additional condition for married or cohabiting women and which, as the Court of Justice held in its judgment of 24 June 1987 in Case 384/85 (Jean Borrie Clarke v. Chief Adjudication Officer [1987] ECR 2865), must be considered to be discriminatory.

The adjudication officer rejected that claim by a decision dated 13 November 1987 and her appeal was dismissed by Sutton SSAT by a decision of 24 October 1988.

Before the social security Commissioners, before whom the matter came on appeal, the adjudication officer contended firstly that Mrs. Johnson did not fall within the personal scope of Directive 79/7/EEC, as defined by Article 2 thereof. With reference to the judgment of the Court of Justice of 27 June 1989 in Joined Cases 48, 106 and 107/88 (J.E.G. Achterberg-te Riele and Others v. Sociale Verzekeringsbank, Amsterdam [1989] ECR 1963) he argued that Mrs. Johnson could not be regarded as a person whose activity had been interrupted by illness or by any of the other risks specified in Article 3 of the directive because she had voluntarily ceased working in order to look after her daughter. Secondly, the adjudication officer maintained that, even if she fell within the personal scope of Directive 79/7/EEC, Mrs. Johnson, in so far as she had never claimed non-contributory invalidity pension before
29 November 1984, did not fulfil the conditions for obtaining severe disablement allowance since she could not show that she was entitled to non-contributory invalidity pension or, at any rate, that she had made a claim for it.

Taking the view that they needed an interpretation of the directive in order to resolve the matter, the social security Commissioners stayed the proceedings and referred the following questions to the Court for a preliminary ruling:

"1. Is Article 2 of Directive 79/7/EEC to be interpreted as including within its personal scope a woman (or man) who was a worker but who left employment for the purposes of child care and who was later prevented from returning to employment by illness?

In particular, is such a woman (or man) to be regarded as included within the personal scope of the directive if she would be working or seeking employment but for illness, or is it necessary in all cases for a person who claims to be within the personal scope of the directive to have left employment in the first place not because of child care but because of the materialisation of one of the risks referred to in Article 3?

Is it material for the consideration of the position of such a woman in relation to Article 2 of the directive to determine whether or not she has sought employment in the period between the end of her child care responsibilities and the onset of the illness that now prevents her from working?

Does Article 4 of Directive 79/7/EEC have direct effect so as to provide a woman with a right to benefit (benefit 'B') for the period after she makes her claim in circumstances where:

(i) a Member State had provided an invalidity benefit (such as the non-contributory invalidity benefit considered in Clarke) (benefit 'A') that was subject to a provision preventing married or cohabiting women qualifying for it unless they met an additional test not applied to any man;

(ii) benefit 'A' has been abolished and replaced by benefit 'B';

(iii) entitlement to benefit 'B' is at least in some cases based on prior entitlement to the abolished benefit 'A';

(iv) the woman did not establish entitlement to benefit 'A' as a matter of domestic law, by making a claim for it before its abolition, and any claim now made would not secure entitlement to benefit because entitlement cannot be obtained for any period more than twelve months before the date on which a claim for that benefit is made?"

Reference is made to the Report for the Hearing for a more detailed account of the facts of and legal background to the case before the national court, the course of the procedure and the written observations submitted to the Court, which are discussed hereinafter only in so far as is necessary for the reasoning of the Court.

The questions referred by the social security Commissioners raise two distinct issues: first, the determination of the personal scope of Directive 79/7/EEC (first, second and third questions) and, secondly, the determination of the meaning of the principle of equal treatment referred to in Article 4 of Directive 75/7/EEC with regard to the conditions for obtaining a social security benefit (fourth question).

According to Article 1 of Directive 79/7/EEC, the purpose of the directive:

"... is the progressive implementation, in the field of social security and other elements of social protection provided for in Article 3, of the principle of equal treatment for men and women in matters of social security, hereinafter referred to as 'the principle of equal treatment'."

According to Article 2, the directive:

"shall apply to the working population - including self-employed persons, workers and self-employed persons whose activity is interrupted by illness, accident or involuntary employment and persons seeking employment and to retired or invalided workers and self-employed persons."

According to Article 3(1), the directive is to apply to:

"(a) statutory schemes which provide protection against the following risks:

sickness

invalidity

old age

accidents at work and occupational diseases

unemployment

(b) social assistance, in so far as it is intended to supplement or replace the schemes referred to in (a)."

Article 4 provides that:

"The principle of equal treatment means that there shall be no discrimination whatsoever on ground of sex either directly, or indirectly by reference in particular to marital or family status, in particular as concerns:

the scope of the schemes and the conditions of access thereto,

the obligation to contribute and the calculation of contributions,

the calculation of benefits including increases due in respect of a spouse and for dependants and the conditions governing the duration and retention of entitlement to benefits."

According to Article 7 (1), the directive:

"... shall be without prejudice to the right of Member States to exclude from its scope:

(a) ...

(b) ... ; the acquisition of benefit entitlements following periods of interruption of employment due to the bringing up of children;"

The personal scope of Directive 79/7/EEC

By the first three questions, which should be examined together, the social security Commissioners essentially seek to determine whether or not a person who has interrupted his or her occupational activity in order to attend to the upbringing of his or her children and who is prevented by illness from returning to work falls within the personal scope of Directive 79/7/EEC.

More particularly, the Court is asked by the second and third questions to clarify in this regard:

whether a person who, in the absence of illness, is working or seeking employment must, in order to come within the scope of Directive 79/7/EEC, have given up his or her previous occupational activity owing to the materialisation of one of the risks specified in Article 3 of the directive;

whether the fact that the person concerned was seeking or was not seeking employment at the time of the materialisation of one of the risks specified in Article 3 of the directive is a determining factor in answering the question whether that person falls within the scope of Directive 79/7/EEC.

It follows from Articles 2 and 3 of Directive 79/7/EEC, read in conjunction, that the directive applies only to persons who are available on the labour market or who have ceased to be so owing to the materialisation of one of the risks specified in the directive.

This means, firstly, that a person who has given up his or her occupational activity in order to attend to the upbringing of his or her children does not fall within the scope of Directive 79/7/EEC as a worker whose activity has been interrupted by one of the risks specified in the directive, since the interruption of employment due to the bringing up of children is not one of the risks listed in Article 3(1)(a) of the directive.

Secondly, it means that that person may still be regarded as falling within the scope of the Directive 79/7/EEC as a person seeking employment whose search is made impossible by the materialisation of one of the risks specified in Article 3(1)(a) of the directive.

In order to be a member of the working population within the meaning of Article 2 of the directive, it is sufficient for the person concerned to be a person seeking employment; no distinction according to the reason for which the person concerned left previous employment or even according to whether or not that person previously carried on an occupational activity is necessary.

However, the person concerned must prove that he or she was a person seeking employment when one of the risks specified in Article 3(1)(a) of the directive materialised. In this regard, it is for the national court to determine whether the person concerned was actually seeking employment at the time when he or she was affected by one of the risks specified in the directive by looking to see in particular whether that person was registered with an employment organisation responsible for dealing with offers of employment or assisting persons seeking employment, whether the person had sent job applications to employers and whether certificates were available from firms stating that the person concerned had attended interviews.

It follows that the protection guaranteed by Directive 79/7/EEC to persons who have given up their occupational activity in order to attend to the upbringing of their children is afforded only to those persons in that category who suffered incapacity for work during a period in which they were seeking employment.

As the United Kingdom and the Commission have pointed out, it is mainly women who interrupt their occupational activities in order to attend to the upbringing of children and who are therefore put at a disadvantage when they fall ill or suffer invalidity before having even to resume looking for employment.

It must be observed, however, that according to the first recital of the preamble to Directive 79/7/EEC and Article 1 thereof, the directive has in view only the progressive implementation of the principle of equal treatment for men and women in matters of social security. As far as the social protection of mothers remaining at home is concerned, it follows from Article 7(1)(b) of Directive 79/7/EEC that the acquisition of entitlement to benefits following periods of interruption of employment due to the upbringing of children is still a matter for the Member States to regulate.

In those circumstances, it is for the Community legislature to take such measures as it considers appropriate to remove the discrimination which still exists in this regard in some bodies of national legislation.

The answer to the first three questions must therefore be that Article 2 of Directive 79/7/EEC must be interpreted as meaning that the directive does not apply to a person who has interrupted his or her occupational activity in order to attend to the upbringing of his or her children and who is prevented by illness from returning to employment unless that person was seeking employment and his or her search was interrupted by the materialisation of one of the risks specified in Article 3(1)(a) of the directive, it being unnecessary to make a distinction according to the reason for which that person left previous employment. It is for the national court to determine that the person relying on Directive 79/7/EEC was actually seeking employment at the time when one of the risks specified in Article 3(1)(a) of the directive materialised.

The principle of equal treatment referred to in Article 4 of Directive 79/7/EEC

By its fourth question the social security Commissioners seek to ascertain whether Article 4 of Directive 79/7/EEC is preclusive of the effects of national legislation which makes entitlement to a benefit subject to the previous submission of a claim for a different benefit which has since been abolished and which entailed a condition discriminating against female workers. If the answer to that question is in the affirmative, they seek to ascertain which consequences ensue from the fact that the national legislation in question is incompatible with Article 4 of the directive.

It appears from the documents before the Court that the effect of section 165A of the Social Security Act 1975, which lays down the conditions entitling the person concerned to claim a benefit, is that a person who has not claimed payment of the non-contributory invalidity pension before the abolition of that benefit may not claim automatic entitlement to the severe disablement allowance under regulation 20(1) of the Social Security (Severe Disablement Allowance) Regulations 1984.

In this regard, it must be borne in mind that the grant of the non-contributory invalidity pension to married or cohabiting women was subject inter alia to the condition that the woman concerned was not fit for household duties, a condition whose discriminatory character is not disputed.

By requiring those women to have applied for the non-contributory invalidity pension in order to be able to claim the severe disablement allowance, section 165A, cited above, in conjunction with regulation 20(1), cited above, maintains that discrimination because virtually all the women who suffered the discrimination entailed by the household duties test may not in future claim automatic payment of the severe disablement allowance, whereas men in a comparable situation are automatically entitled to it. Such men were in fact entitled to the non-contributory invalidity pension and could therefore reasonably claim payment of that benefit whereas women had no reason to make such a claim since they knew that they had no entitlement to it.

As the Court of Justice held in paragraph 10 of its judgment in Borrie Clarke, cited above, the directive does not provide for any derogation from the principle of equal treatment laid down in Article 4(1) of the directive so as to authorize the continuation of the discriminatory effects of earlier provisions of national law. Therefore, after 22 December 1984, the date on which the period laid down by the directive for bringing national legislation into conformity with the directive expired, a Member State may not maintain any inequalities of treatment.

It must accordingly be held that national legislation such as the combination of section 165A of the Social Security Act 1975 and regulation 20(1) of the Social Security (Severe Disablement Allowance) Regulations 1984, which makes entitlement to a benefit subject to the previous submission of a claim for a different benefit which entailed a condition discriminating against female workers, must be regarded as incompatible with Article 4(1) of Directive 79/7/EEC.

Finally, it must be observed, as the Court of Justice held in paragraph 9 of its judgment in Borrie Clarke, cited above, that, standing by itself, and in the light of the objective and contents of the directive, Article 4(1) is sufficiently precise to be relied upon by an individual before a national court so as to lead that court to set aside any national provision not in conformity with that article.

It is also apparent from paragraph 12 of that judgment that since 23 December 1984 women are entitled to be treated in the same manner and to have the same rules applied to them as men who are in the same situation, since, where the directive has not been implemented correctly, those rules remain the only valid point of reference.

The answer to the fourth question must therefore be that since 23 December 1984 it has been possible to rely on Article 4 of Directive 79/7/EEC in order to have set aside national legislation which makes entitlement to a benefit subject to the previous submission of a claim in respect of a different benefit which has since been abolished and which entailed a condition discriminating against female workers. In the absence of appropriate measures for implementing Article 4 of Directive 79/7/EEC, women placed at a disadvantage by the maintenance of the discrimination are entitled to be treated in the same manner and to have the same rules applied to them as men who are in the same situation, since, where the directive has not been implemented correctly, those rules remain the only valid point of reference.

Costs

The costs incurred by the United Kingdom and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, in so far as the parties to the main proceedings are concerned, a step in the proceedings pending before the national tribunal, the decision on costs is a matter for that tribunal.

On those grounds,

THE COURT (Fifth Chamber)

in answer to the questions submitted to it by the social security Commissioners, by decision of 25 January 1990, hereby rules:

Article 2 of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security must be interpreted as meaning that the directive does not apply to a person who has interrupted his or her occupational activity in order to attend to the upbringing of his or her children and who is prevented by illness from returning to employment unless that person was seeking employment and his or her search was interrupted by the materialisation of one of the risks specified in Article 3(1)(a) of the directive, it being unnecessary to make a distinction according to the reason for which that person left previous employment. It is for the national court to determine that the person relying on Directive 79/7/EEC was actually seeking employment at the time when one of the risks specified in Article 3 (1) (a) of the directive materialised.

Since 23 December 1984 it has been possible to rely on Article 4 of Directive 79/7/EEC in order to have set aside national legislation which makes entitlement to a benefit subject to the previous submission of a claim in respect of a different benefit which has since been abolished and which entailed a condition discriminating against female workers. In the absence of appropriate measures for implementing Article 4 of Directive 79/7/EEC, women placed at a disadvantage by the maintenance of the discrimination are entitled to be treated in the same manner and to have the same rules applied to them as men who are in the same situation, since, where the directive has not been implemented correctly, those rules remain the only valid point of reference.

DECISION OF THE TRIBUNAL OF SOCIAL SECURITY COMMISSIONERS

We hold that the decision of the social security appeal tribunal dated
24 October 1988 is erroneous in law and we set it aside. Our decision is as follows:

(a) Non-contributory invalidity benefit is not payable to the claimant for the inclusive period from 22 August 1982 to 27 November 1985 and severe disablement allowance is not payable to the claimant for the inclusive period from 28 November 1985 to 16 August 1986. That is because those periods are more than twelve months before the relevant date of claim on 17 August 1987: Social Security Act 1975, section 165A;

(b) Severe disablement allowance is payable to the claimant from 17 August 1986 onwards because the claimant has shown good cause, continuous to the date of claim on 17 August 1987, for the delay in claiming: Social Security Act 1975, section 165A and the Social Security (Claims and Payments) Regulations 1979, regulation 14, Schedule 1 and Schedule 2, paragraph 2A.

This is an appeal to the Commissioner by the claimant, a woman born on 27 March 1936. The Chief Commissioner directed that the appeal should be heard by a tribunal of Commissioners. The appeal is against the unanimous decision of the social security appeal tribunal dated 24 October 1988, which was in similar terms to our decision in paragraph 1(a) above, but which held the claimant not to be entitled to severe disablement allowance for any period earlier than 16 July 1987. The appeal was the subject of two oral hearings before this tribunal of Commissioners. The first was on 17 January 1990. The claimant was not present but was represented by Mr. R Drabble of Counsel. The adjudication officer was represented by Mr. R. Jay of Counsel. Following that hearing this tribunal made a reference to the European Court (see appendix 1 to this decision). The European Court gave its judgment on 11 July 1991 (see appendix 2 to this decision). There then followed a further oral hearing before this tribunal of Commissioners on
9 December 1991 at which the claimant was present and gave evidence to the tribunal. She was represented again by Mr. R. Drabble. The adjudication officer was represented by Miss A. V. Windsor of the Office of the Solicitor to the Departments of Health and Social Security. We are indebted to Mr. Drabble to Mr. Jay and to
Miss Windsor for their assistance to us at the hearings.

The further hearing before the tribunal of Commissioners on 9 December 1991 was to consider the effect on the present appeal of the judgment of the European Court and for this tribunal to make the appropriate decision. At that hearing Mr. Drabble and Miss Windsor concurred in submitting to us that the only question for this tribunal to decide was whether, following the judgment of the European Court, the claimant was within the personal scope of Directive 79/7/EEC which by Article 2A thereof:

"shall apply to the working population - including self-employed persons, workers and self-employed persons whose activity is interrupted by illness, accident or involuntary employment and persons seeking employment - and to retired or invalidity workers and self-employed persons."

Article 3(1) of the Directive provides that it applies to "statutory schemes which provide protection against the following risks:- sickness - invalidity ..".

Mr. Drabble and Miss Windsor also concurred in submitting that if the claimant could bring herself within the personal scope of the Directive then. she would be entitled to an award of severe disablement allowance for the twelve months prior to the claim made on 17 August 1986 but not for any earlier period because there applied thereto the imperative provision of section 165A of the Social Security Act 1975 that no benefit can be paid for any period that is more than twelve months before the date of claim. This tribunal accepts those concurring submissions.

Mr. Drabble and Miss Windsor further agreed (and this tribunal accepts that agreement) that for the twelve months prior to the date of claim the claimant has demonstrated "good cause" for the delay, continuous to the date of claim. They also agreed (which this tribunal accepts) that if the claimant is within the EEC Directive, she is able to take the benefit of regulation 20(1) of the Social Security (Severe Disablement Allowance) Regulations 1984, SI 1984 No. 1303, which reads as follows:

"Persons formerly entitled to non-contributory invalidity pension

(1) Any person who immediately before both 10 September 1984 and 29 November 1984 was entitled to a non-contributory invalidity pension shall be entitled for 29 November 1984 and for any subsequent days which together with 29 November 1984 fall within a single period of interruption of employment, to a severe disablement allowance whether or not-

(a) he is disabled for the purposes of section 36 of the Act, or

(b) 29 November 1984 is appointed for the purposes of section 11 of the 1984 Act in relation to persons of his age,

if he satisfies the other requirements for entitlement to such an allowance."

Having considered the written and oral evidence available to us (detailed below), we unanimously hold that the claimant has shown that she comes within the personal scope of Article 2 of Directive 79/7/EEC. The relevant passages of the European Court's judgment (see appendix 2 to this decision) are paragraphs 22 and 27 which read as follows:

"22. However, the person concerned must prove that he or she was a person seeking employment when one of the risks specified in Article 3(l)(a) of the directive materialised. In this regard, it is for the National Court to determine whether the person concerned was actually seeking employment at the time when he or she was affected by one of the risks specified in the directive by looking to see in particular whether that person was registered with an employment organisation responsible for dealing with offers of employment or assisting persons seeking employment, whether the person had sent job applications to employers and whether certificates were available from firms stating that the person concerned had attended interviews.

…

The answer ... must therefore be that Article 2 of Directive 79/7/EEC must be interpreted as meaning that the directive does not apply to a person who has interrupted his or her occupational activity in order to attend the upbringing of his or her children and who is prevented by illness from returning to employment unless that person was seeking employment and his or her search was interrupted by the materialisation of one of the risks specified in Article 3(1)(a) of the directive, it being unnecessary to make a distinction according to the reason for which that person left previous employment. It is for the National Court to determine that the person relying on Directive 79/7/EEC was actually seeking employment at the time when one of the risks specified in Article 3(1)(a) of the directive materialised."

The evidence on this point before this tribunal was as follows. A written statement dated 8 November 1991 by the claimant (affirmed by her in oral evidence to us) reads:

"I make this statement in connection ... with the requirement to show that my incapacity for work materialised after I began to seek employment. My daughter was born on 10 December 1963. I worked as a telephonist until my daughter was six and I then gave up work to look after her. When my daughter left school [in the summer of 1980 when she was aged 15] she went to Secretarial College for a year, at Merton College. At some point about that time (I cannot remember exactly when) I was told by the benefit office that I would need to go back to work, as my daughter was now out of school. I went into the local benefit office but they sent me to another office in Wimbledon above a JobCentre to get a form or number to sign on. They told me I had to work full-time, not part-time. I was at that time perfectly fit, and ready and able to work. I can vaguely remember signing on a few times once a week or fortnight. I started looking for work. I saw a job advertised in the local paper which was ideal, as it was only down the road doing the type of work I had done before working as a telephonist. I applied for the job and was short listed. Unfortunately, before I was able to go for the interview I injured my back. I was in the bathroom at the time and reached-up to a shelf to get something and felt my back go. I went to the doctor who said I had a slipped disc. I telephoned the woman at Depike Engineers (where I had been shortlisted) to say I would be unable to attend the interview but would telephone her as soon as I was feeling better. In fact, I did not get back to her because instead of getting better I got worse. Everything seemed to aggravate my back. My doctor sent me for physiotherapy and traction. I telephoned the local benefit office who told me to send in a doctor's certificate, which I did. I think the first certificate was for a month. My back did not get any better and eventually it was diagnosed as severe degenerative disc disease. I have been continuously incapable of work since."

That statement is supported by two documents from the prospective employers, Depike Engineers. The first is a letter to the claimant from Depike Engineers dated 28 October 1980 reading:

"Reference: Telephonist/Receptionist vacancy

Thank you for your letter in response to our advertisement. Would you kindly complete and return to this address the enclosed application form. We would also like you to telephone 01-897-1131 on Thursday 30 October 1980, with a view to arranging an interview for some time during the evening on that date at our Wimbledon office."

There is also a copy of what appears to be a telegram dated 13 November 1980 to the claimant from Depike Engineers, reading as follows:

"Reference telephonist vacancy

Compiling new short list if still interested. Kindly phone 01-897-1131."

A schedule of dates attached to a submission from the adjudication officer now concerned (dated 21 August 1991) shows that the claimant claimed unemployment benefit on 8 October 1980 and then claimed sickness benefit on 5 November 1980. This is consistent with the evidence outlined in paragraphs 7 and 8 above.

At the hearing before us on 9 December, Miss Windsor also drew our attention to the fact that in a statement dated 8 June 1988 to an adjudicating medical practitioner in connection with the claimant's claim for severe disablement allowance, the claimant said:

"I have problems with my neck and lower back for last ten years. It is steadily getting worse ... worked as telephonist until about 1965 and stopped work due to children and no work since then."

On the facts of this particular case, in accordance with the evidence before us (as detailed above), we hold that the claimant is within the personal scope of Article 2 of Directive 79/7/EEC in that she was seeking employment at a time when that search was interrupted by the risks of "sickness" and "invalidity" in Article 3(1) of the Directive. Consequently, the claimant is entitled to severe disablement allowance for the dates specified in paragraph 1 of our decision. We emphasise that our decision depends on the facts of this particular case and is given in exercise of our power to make findings of fact, conferred by the amended section 101 of the Social Security Act 1975.

Dated: 16 December 1991 (signed) Mr. M. J. Goodman

Commissioner

(signed) Mr. A. T. Hoolahan QC

Commissioner

(signed) Mr. R. A. Sanders
Commissioner

DECISION OF THE EUROPEAN COURT OF JUSTICE

Mr. R. Drabble, Barrister, instructed by P. Wood, Solicitor, London, for Mrs. Johnson.

M. Buckley, Chief State Solicitor, agent, for Ireland.

C. Vajda, Barrister and L. Hudson, of the Treasury Solicitor's Department, agent, for the United Kingdom.

K. Banks, of its Legal Service, agent, for the Commissioner of the European Communities.

The Opinion of the Advocate General was delivered on 1 June 1994 and is reported at [1994] ECR 1-5485.

JUDGMENT

By order of 30 October 1992, received at the Court on 10 December 1992, the Court of Appeal referred for a preliminary ruling under Article 177 of the, EEC Treaty questions on the interpretation of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (OJ 1979 L 6, p. 24).

Those questions arose in a dispute between Mrs. Johnson and the Chief Adjudication Officer concerning payment of severe disablement allowance.

The material Community provisions are those of Directive 79/7.

Article 2 provides that the directive applies "to the working population - including self-employed persons, workers and self-employed persons whose activity is interrupted by illness, accident or involuntary unemployment tend persons seeking employment - and to retired or invalided workers and self-employed persons."

Article 4(1) provides:

"The principle of equal treatment meats that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status, in particular as concerns:

the scope of the schemes and the conditions of access thereto,

the obligation to contribute and the calculation of contributions,

the calculation of benefits including increases due in respect of a spouse and for dependants and the conditions governing the duration and retention of entitlement to benefits."

Under Article 8, the period within which Member States were required to transpose the directive expired six years after Its notification, hence on 22 December 1984.

Mrs. Johnson, the appellant in the main proceedings, gave up work in or about 1970 in order to look after her daughter, who was then six years old. She sought to resume employment in 1980 but was unable to do so because of a back complaint. For that reason she was granted non-contributory invalidity benefit (NCIB) in 1981, when she was living alone.

In 1982 she began cohabiting with a male friend. Payment of NCIB then ceased because at that period a woman cohabiting with a man was required, in order to qualify for NCIB, to prove not only that she was unfit for work but also that she was unfit to carry out normal household duties (section 36(2) of the Social Security Act 1975, as then in force). This household duties test did not apply to men.

The Health and Social Security Act 1984 abolished the NCIB and introduced the severe disablement allowance (SDA) which may be granted to persons of either sex under identical conditions. However, regulation 20(1) of the Social Security (Severe Disablement Allowance) Regulations 1984 allowed persons entitled to the old NCIB to qualify automatically for the new SDA without being required to prove that they satisfied the new conditions.

On 17 August 1987 Mrs. Johnson applied through the Citizens Advice Bureau for SDA.

Her application was turned down on the basis of section 165A of the Social Security Act 1975, as amended, which provides that:

"(1) Except in such cases as may be prescribed, no person shall be entitled to any benefits unless, in addition to any other conditions relating to that benefit being satisfied-

(a) he makes a claim for it-

(i) in the prescribed manner; and

(ii) subject to subsection (2) below, within the prescribed time;

..."

In a case such as this, the effect of that provision is that a person who has not claimed payment of NCIB before the abolition of that benefit may not claim automatic entitlement to SDA (see Case C31/90 Johnson v. Chief Adjudication Officer [1991] ECR 1-3723, para. 29).

The social security Commissioners, before whom the case came on appeal, referred questions to the Court of Justice by decision of 25 January 1990 asking in particular whether such a rule was compatible with Directive 79/7.

In its judgment in Case C31/90, cited above, the Court answered that question by ruling that it had been possible since 25 December 1984 to rely on Article 4 of Directive 79/7 in order to have set aside national legislation which made entitlement to a benefit subject to the previous submission of a claim in respect of a different benefit which had since been abolished and which had entailed a condition discriminating against female workers. In the absence of appropriate treasures for implementing Article 4 of Directive 79/7, women placed at a disadvantage by the maintenance of the discrimination were entitled to be treated in the same manner and to have the same rules applied to them as men who were in the same situation, since, where the directive had not been implemented correctly, those rules remained the only valid point of reference.

Following the Court's judgment in that case, the social security Commissioners, by decision of 16 December 1991, granted SDA to Mrs. Johnson with effect from 16 August 1986, that is to say, twelve months prior to her claim, but refused to grant payment in respect of any period prior to that date.

That refusal was band on the rule contained in subsection (3) of section 165A of the Social Security Act 1975, which provided that:

"Notwithstanding any regulations made under this section, no person shall be entitled:

...

(c) to any other benefit (except disablement benefit or reduced earnings allowance or industrial death benefit) in respect of any period more than twelve months before the date on which the claim is made."

Mrs. Johnson appealed to the Court of Appeal, where argument centred on whether the judgment of the Court of Justice in Case C-208/90 Emmott v. Minister for Social Welfare and Attorney General [1991] ECR I-4269 constituted a precedent for the present case and whether it entitled Mrs. Johnson to receive benefits from
22 December 1984, when the period for transposing Directive 79/7 expired.

In Emmott the Court ruled that Community law precludes the competent authorities of a Member State from relying, in proceedings brought against them by an individual before the national courts in order to protect rights directly conferred upon him by Article 4(1) of Directive 79/7, on national procedural rules relating to time-limits for bringing proceedings so long as that Member State has not properly transposed that directive into its domestic legal system.

The Court of Appeal, in doubt as to the proper scope of that judgment, decided to stay proceedings and refer the following questions to the Court for a preliminary ruling:

"1. Is the decision of the European Court of Justice in Emmott (Case C-208/90) to the effect that a Member State may not rely on national procedural rules relating to the time-limits for bringing proceedings so long as that Member State has not properly transposed Directive 79/7 into its legal system to be interpreted as applying to national rules on claims for benefit for past periods in cases where a Member State has implemented measures to comply with that directive before the relevant deadline but has left in force transitional provision such as that considered by the European Court of Justice in Case 384/85 Borrie Clarke?

In particular in circumstances where:

(i) a Member State has adopted and implemented legislation to fulfil its obligations under Council Directive 79/7('the directive') prior to the deadline laid down in the directive;

(ii) the Member State introduces ancillary transitional arrangements in order to safeguard the position of existing social security beneficiaries;

(iii) it subsequently transpires as a result of a preliminary ruling by the Court of Justice that the transitional arrangements breach the directive;

(iv) an individual brings a subsequent claim for benefit shortly after the preliminary ruling referred to above relying on the transitional arrangements and the directive in a national tribunal pursuant to which that individual is awarded the benefit for the future and for twelve month: prior to the bringing of the claim in accordance with the relevant national rules on payments for the period prior to the making of the claim,

must that national tribunal disapply those national rules on arrears of payment from the date that the deadline for implementation of the directive has expired, that is, 23 December 1984?"

By those questions, which should be considered together, the national court asks, in essence, whether it is compatible with Community law to apply, to a claim based on the direct effect of Directive 79/7, a rule of national law which limits the period prior to the bringing of the claim in respect of which arrears of benefit are payable, even where that directive has not been properly transposed within the prescribed period in the Member State concerned.

The right conferred on women by the direct effect of Article 4(1) of Directive 79/7 to claim benefits for incapacity for work under the same conditions as men must be exercised under the conditions determined by national law, provided that, as the Court has consistently held, those conditions are no less favourable than those relating to similar domestic actions and that they are not framed so as to render virtually impossible the exercise of rights conferred by Community law (see Case C338/91 Steenhorst-Neerings v. Bestuur van de Bedrijfsvereniging voor Detailhandel, Ambachten en Huisvrouwen [1993] ECR 1-5475, para. 15, and Emmott para. 16).

Here, the wording of the contested rule shows that it is of general application and that actions based on Community law are therefore not subject to less favourable conditions than those applying to similar domestic actions.

Nor does that rule, which merely limits the period prior to the bringing of a claim in respect of which arrears of benefit are payable, make it virtually impossible for an action to be brought by an individual relying on Community law.

Referring to the terms of the Emmott judgment, however, Mrs. Johnson submits that the rule in question is a "national procedural rule relating to time limits" and that a Member State cannot therefore rely on it so long as it has not "properly transposed" a directive.

In Emmott the Court did indeed hold that so long all a directive has not been properly transposed into national law individuals are unable to ascertain the full extent of their rights (para. 21) and that consequently, until the directive has been properly transposed, a defaulting Member State may not rely on an individual's delay in initiating proceedings against it in order to protect rights conferred upon him by the provisions of the directive and that a period laid down by national law within which proceedings must be initiated cannot begin to run before that time (para. 23).

However, it a clear from the judgment in Steenhorst-Neerings that the solution adopted in Emmott was justified by the particular circumstances of that case, in which a time-bar had the result of depriving the applicant of any opportunity whatever to rely on her right to equal treatment under the directive.

The Court pointed out in Steenhorst-Neerings (para. 20) that in Emmott the applicant in the main proceedings had relied on the judgment of the Court in Case 286/85 McDermott and Cotter v. Minister for Social Welfare and Attorney General [1987] ECR 1453 in order to claim entitlement by virtue of Article 4(1) of Directive 79/7 with effect from 23 December 1984, to invalidity benefits under the same conditions as those applicable to men in the same situation. The administrative authorities had then declined to adjudicate on her claim since Directive 79/7 was the subject of proceedings pending before a national court. Finally, even though Directive 79/7 had still not been correctly transposed into national law, it was claimed that the proceedings she had brought to obtain a ruling that her claim should have been accepted were out of time.

In contrast, the rule at issue in Steenhorst-Neerings did not affect the right of individuals to rely on Directive 79/7 in proceedings before the national courts against a defaulting Member State but merely limited to one year the retroactive effect of claims for benefits for incapacity for work.

The Court concluded (para. 24) that Community law did not preclude the application of a national rule of law whereby benefits for incapacity for work were payable not earlier than one year before the date of claim, in the case where an individual sought to rely on rights conferred directly by Article 4(1) of Directive 79/7 with effect from 23 December 1984 and where on the date the claim for benefit was made the Member State concerned had not yet properly transposed that provision into national law.

In the light of the foregoing, the national rule which adversely affects Mrs. Johnson's action before the Court of Appeal is similar to that at issue in Steenhorst-Neerings. Neither rule constitutes a bar to proceedings; they merely limit the period prior to the bringing of the claim in respect of which arrears of benefit are payable.

At the hearing, however, Mrs. Johnson argued that the two cases had to be distinguished since their facts were different.

In the first place, she submitted that there was no difficulty, in certain areas of social security, and in this case in particular, in determining whether the claimant satisfied the conditions governing entitlement to benefit prior to the bringing of the claim. Since the relevant rules in the United Kingdom provided that the burden of proof rested on the claimant, the claim would fail if the lapse of time made it impossible to adduce that proof.

Mrs. Johnson further submitted that the benefit in question in this case was non-contributory, unlike that at issue in Steenhorst-Neerings, and that there was consequently no need in this case to preserve the financial balance of a fund having limited resources. Payment of arrears from the date on which the period for transposition expired would constitute no more of a burden on State resources than a proper transposition of the directive within the specified period.

Those arguments are not cogent. Admittedly, the individual position of Mrs. Johnson and the benefit which she seeks can be distinguished in certain respects from the situation and the benefit at issue in Steenhorst-Neerings.

The fact remains, however, that the rule at issue in this case is identical to that under consideration in Steenhorst-Neerings and that the application of those rules does not make it impossible to exercise rights based on the directive.

Accordingly, the answer to the national court's questions must be that Community law does not preclude the application, to a claim based on the direct effect of Directive 79/7, of a rule of national law which merely limits the period prior to the bringing of the claim in respect of which arrears of benefit are payable, even where that directive has not been properly transposed within the prescribed period in the Member State concerned.

Costs

The costs incurred by Ireland, the United Kingdom and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds

THE COURT,

in answer to the questions referred to it by the Court of Appeal by order of
30 October 1942, hereby rules:

Community law does not preclude the application to a claim based on the direct effect of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, of a rule of national law which merely limits the period prior to the bringing of the claim in respect of which arrears of benefit are payable, even where that directive has not been properly transposed within the prescribed period in the Member State concerned.