UK Social Security and Child Support Commissioners' Decisions

[1995] UKSSCSC RP_3_1996 (01 February 1995)

R(P) 3/96


Mr. J. B. Morcom

1.2.95

Residence condition - claimant moving to Spain having been entitled to retirement pension by virtue of the reciprocal agreement with New Zealand - whether entitlement continuing by virtue of Article 10 of Council Regulation (EEC) No. 1408/71

The claimant's entitlement to a retirement pension depended upon the provisions of a reciprocal agreement between the United Kingdom and New Zealand contained in the Social Security (New Zealand) Order 1983. On 30 April 1992 the claimant left the United Kingdom to reside in Spain. An adjudication officer then reviewed the decision awarding him retirement pension and decided that he was no longer entitled to this because of Articles 9(3) and (6) of the 1983 Order. A tribunal however held that having regard to Article 51 of the Treaty of Rome payment of the retirement pension was not prevented because of a change of the country of residence within the European Economic Community. The adjudication officer appealed.

Held that:

under Article 10(1) of Council Regulation (EEC)1408/71 a person entitled to United Kingdom retirement pension can continue to receive that benefit while in another Member State. However Council Regulation (EEC) 1408/71 does not apply where the entitlement is based upon reciprocal social security agreement between the United Kingdom and a third state (Annex VI, section 6, para. 7). The 1983 Order was clearly such an agreement. Thus the provisions of the regulation did not assist the claimant and his entitlement to a retirement pension ceased when he left the United Kingdom on 30 April 1992.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. My decision is that the decision of the Manchester social security appeal tribunal dated 28 January 1993 is erroneous in point of law. Accordingly I set it aside and give the decision that the appeal tribunal themselves should have given namely that the claimant's return to Spain was a relevant change of circumstances which allowed the review of the award of retirement pension. The claimant is not entitled to retirement pension from 30 April 1992.
2. This is an appeal by the adjudication officer to the Commissioner with the leave of the tribunal chairman against the decision of the appeal tribunal in respect of the decision of the adjudication officer first involved in these appeals. I note that payment of benefit has not been suspended following the decision of the appeal tribunal.
3. The facts of the case are dealt with in box 5 of the written submission of the adjudication officer first involved in these appeals to the appeal tribunal. In respect of those matters and of the submission dated 23 March 1994 of the adjudication now involved in these appeals the claimant through his legal representatives has had the opportunity to comment and I have their observations contained in their letter dated 20 September 1994. No useful purpose is to be served save as I do in this decision by my setting out these matters afresh here.
4. The relevant statutory provisions are Regulation (EEC) 1408/71, Article 10(1) and Annex VI, section L, paragraph 7:

Treaty of Rome, Article 51;

Social Security (New Zealand) Order 1983, Article 9(3) and 1(6) and

Social Security Administration Act 1992, sections 23(7)(a) and 25(1).

5. In my judgment the decision of the appeal tribunal is erroneous in point of law. The claimant's return to Spain was a relevant change of circumstances allowing the review of the award of retirement pension. The appeal tribunal erred in law in deciding that there are no grounds for review. The claimant's return to Spain necessitates consideration of the existing award of retirement pension as in accordance with the Social Security (New Zealand) Order 1983 the absence from the UK results in the end of entitlement to retirement pension. Accordingly the appeal tribunal's error of law was in deciding that there are no grounds for review. I therefore turn to the issue of substance which is whether from 30 April 1992 the claimant is entitled to UK retirement pension while resident in Spain. I accept that retirement pension must be paid up to 30 April 1992. I turn accordingly to the New Zealand agreement and in particular Articles 9(3) and 9(6) the application of these provisions to the claimant without reference to EEC law results in the end of retirement pension when the claimant is no longer resident in the UK. In their earlier decision on the face of the record of that tribunal, that tribunal gave their reasoning as to why retirement pension should continue to be paid. That appeal tribunal gave consideration to Article 51 of the EEC Treaty and their decision was first that the claimant's benefit had accrued before leaving Great Britain; secondly the fact that retirement pension was payable because of contributions paid in New Zealand did not affect the claimant's entitlement; and thirdly that payment of benefit is not prevented because of a change of the country of residence within the EEC. It is not in dispute that the claimant is an EEC national and that retirement pension is a benefit within the scope of the regulations of the EEC and in particular the provisions of Regulation (EEC)1408/71, Article 10(1). In accordance with that provision a person entitled to retirement pension, which is the UK equivalent to old age benefit, continues to receive that benefit while in another Member State at the rate that it would be paid in the UK. There is no disqualification for being absent from Great Britain and the rate of the benefit can be increased by the uprating of the general benefit rates. Annex VI, section L, paragraph 7 of Regulation (EEC) 1408/71 is of relevance and I set those provisions out immediately below:

"The Regulation does not apply to those provisions of UK legislation which are intended to bring into force any Social Security agreement concluded between the UK and a third state."

To my mind it is clear that the Social Security (New Zealand) Order 1983 is an agreement with a third state in accordance with the provisions of Annex VI set out immediately above. The claimant's entitlement to retirement pension depends upon the Social Security (New Zealand) Order 1983. It follows that on 30 April 1992 when the claimant left the UK to reside in Spain the provisions of Regulation (EEC) 1408/71 are not of assistance to the claimant. Accordingly the claimant's entitlement to a retirement pension ceased from that date. I would add that I have given careful consideration to the claimant's legal representatives observations in their letter dated 20 September 1994. The issue is as indicated immediately above in this paragraph one of interpretation of the relevant EEC and New Zealand provisions and as a question of construction I can find no other than I do in my decision at paragraph 1 of this decision.

6. My decision is as set out in paragraph 1 of this decision. I am empowered under the Social Security Administration Act 1992, section 23(7)(a) to give the decision myself which I do in paragraph 1 of this decision.
7. Accordingly the adjudication officer's appeal is allowed.

Date: 1 February 1995 (signed) Mr. J. B. Morcom Commissioner