Snares v. Adjudication Officer C_-20/96 ECJ  UKSSCSC CDLA913_1994 (04 November 1997)
(Snares v. Adjudication Officer (C-20/96))
ECJ (G. C. Rodríguez Iglesias, President, CDLA/913/1994
C. Gulmann, H. Ragnemalm and M. Wathelet,
Presidents of Chambers; G. F. Mancini,
J. C. Moitinho de Almeida, P. J. G. Kapteyn,
J. L. Murray, D. A. O. Edward, J.-P. Puissochet,
G. Hirsch, P. Jann and L. Sevón, Judges; and
Advocate General: P. Léger)
Residence condition - claimant moving permanently to another European Union Member State - whether disability living allowance could be exported under Council Regulation (EEC) 1408/71
In September 1993 the claimant was awarded disability living allowance for life. In November 1993 he moved permanently to another European Union Member State and became disentitled by virtue of regulation 2(1)(a) and (2) of the Social Security (Disability Living Allowance) Regulations 1991. He appealed to the Commissioner who referred to the European Court of Justice the question of whether disability living allowance was still payable by virtue of Article 10(1) of Council Regulation (EEC) 1408/71 despite the amendments to Council Regulation (EEC) 1408/71 made in June 1992 by Council Regulation (EEC) 1247/92.
- from 1 June 1992 disability living allowance falls exclusively within Article 10a of Council Regulation (EEC) 1408/71 as a special non-contributory benefit, so that a person who became entitled to disability living allowance on or after that date could not rely on the principle of the waiver of residence clauses under Art. 10. The inclusion of disability living allowance in the list in Annex IIa to Council Regulation 1408/71 was conclusive of its nature as a special non-contributory benefit;
- the amendments made by Council Regulation (EEC) 1247/92 were valid.
[Note: an application for interim relief pending the answer from the European Court of Justice was made - see R(DLA) 4/99]____________________________________________________________________
DECISION OF THE EUROPEAN COURT OF JUSTICE
H. Mountfield, Barrister, instructed by D. Thomas, of the Child Poverty Action Group, for Mr. Snares.
N. Paines, Barrister, and L. Nicoll, of the Treasury Solicitor's Department, agent, for the United Kingdom.
E. Röder, Ministerialrat in the Federal Ministry of Economic Affairs, and B. Kloke, Oberregierungsrat in that Ministry, agents, for the German Government.
A. J. Navarro González, Director General of Community Legal and Institutional Coordination, and G. Calvo Díaz, Abogado del Estado, of the State Legal Service, agents, for the Spanish Government.
C. de Salins, Assistant Director in the Legal Affairs Directorate of the Ministry of Foreign Affairs, and A. de Bourgoing, Chargé de Mission in that directorate, agents, for the French Government.
W. Okresek, Ministerialrat in the Constitutional Affairs Department of the Bundeskanzleramt, agent, for the Austrian Government.
M. Bishop and A. Lo Monaco, Legal Advisers, agents, for the Council of the European Union.
C. Docksey and M. Patakia, of its Legal Service, agents, for the Commission of the European Communities.
The Opinion of the Advocate General was delivered on 6 May 1997 and is reported at  ECR I-6059.
The national legislation
"A person shall not be entitled to a disability living allowance unless he satisfies prescribed conditions as to residence and presence in Great Britain."
"(1) Subject to the following provisions of this regulation, the prescribed conditions for the purposes of [section 71(6) of the Social Security Contributions and Benefits Act 1992] as to residence and presence in Great Britain in relation to any person on any day shall be that –
(a) on that day –
(i) he is ordinarily resident in Great Britain; and
(ii) he is present in Great Britain; and
(iii) he has been present in Great Britain for a period of, or for periods amounting in the aggregate to, not less than 26 weeks in the 52 weeks immediately preceding that day; and
(2) For the purposes of paragraph (1)(a)(ii) and (iii), notwithstanding that on any day a person is absent from Great Britain, he shall be treated as though he were present in Great Britain if his absence is by reason only of the fact that on that day -
(d) his absence from Great Britain is, and when it began was, for a temporary purpose and has not lasted for a continuous period exceeding 26 weeks; or
(e) his absence from Great Britain is temporary and for the specific purpose of his being treated for incapacity, or a disabling condition, which commenced before he left Great Britain, and the Secretary of State has certified that it is consistent with the proper administration of the Act that, subject to the satisfaction of the foregoing condition in this subparagraph, he should be treated as though he were present in Great Britain."
The Community legislation
"1. This regulation shall apply to all legislation concerning the following branches of social security:
(b) invalidity benefits, including those intended for the maintenance or improvement of earning capacity;
- This regulation shall apply to all general and special social security schemes, whether contributory or non-contributory ... .
"The Member States shall specify the legislation and schemes referred to in Article 4(1) and (2) ... in declarations to be notified and published in accordance with Article 97."
"1. Save as otherwise provided in this regulation, invalidity, old-age or survivors' cash benefits, pensions for accidents at work or occupational diseases and death grants acquired under the legislation of one or more Member States shall not be subject to any reduction, modification, suspension, withdrawal or confiscation by reason of the fact that the recipient resides in the territory of a Member State other than that in which the institution responsible for payment is situated."
"2a. This regulation shall also apply to special non-contributory benefits which are provided under legislation or schemes other than those referred to in paragraph 1 or excluded by virtue of paragraph 4, where such benefits are intended:
(a) either to provide supplementary, substitute or ancillary cover against the risks covered by the branches of social security referred to in paragraph 1(a) to (h),
(b) solely as specific protection for the disabled."
"1. Notwithstanding the provisions of Article 10 and Title III, persons to whom this regulation applies shall be granted the special non-contributory cash benefits referred to in Article 4(2a) exclusively in the territory of the Member State in which they reside, in accordance with the legislation of that State, provided that such benefits are listed in Annex IIa. Such benefits shall be granted by and at the expense of the institution of the place of residence.
- The institution of a Member State under whose legislation entitlement to benefits covered by paragraph 1 is subject to the completion of periods of employment, self-employment or residence shall regard, to the extent necessary, periods of employment, self-employment or residence completed in the territory of any other Member State as periods completed in the territory of the first Member State.
- Where entitlement to a benefit covered by paragraph 1 but granted in the form of a supplement is subject, under the legislation of a Member State, to receipt of a benefit covered by Article 4(1)(a) to (h), and no such benefit is due under that legislation, any corresponding benefit granted under the legislation of any other Member State shall be treated as a benefit granted under the legislation of the first Member State for the purposes of entitlement to the supplement.
- Where the granting of a disability or invalidity benefit covered by paragraph 1 is subject, under the legislation of a Member State, to the condition that the disability or invalidity should be diagnosed for the first time in the territory of that Member State, this condition shall be deemed to be fulfilled where such diagnosis is made for the first time in the territory of another Member State."
The main proceedings
"1. Is the effect of the terms of Articles 4(2a) and 10a of Council Regulation (EEC) No. 1408/71, as inserted by Council Regulation (EEC) No. 1247/92 with effect from 1 June 1992, to remove from the scope of Article 4(1) of Regulation No. 1408/71 a benefit which prior to 1 June 1992 would have been accepted, in the case of a person who by reason of previous occupational activity was or had been covered by the social security legislation of the relevant Member State, as falling within the scope of Article 4(1), with the consequence that a person who after 1 June 1992 becomes entitled to such a benefit under the legislation of one Member State may not rely on the provisions of Article 10(1) of Regulation No. 1408/71 in order to challenge a withdrawal of entitlement on the sole ground that the person resides in the territory of another Member State?
- If the answer to Question 1 is yes, is Council Regulation (EEC) No. 1247/92 made within the powers granted by the Treaty of Rome, and in particular by Articles 51 and 235 of that Treaty?"
The first question
The second question
On those grounds,
in answer to the questions referred to it by the Social Security Commissioner by order of 17 January 1996, hereby rules:
1. On a proper construction of Article 10a of Council Regulation (EEC) No. 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EEC) No. 2001/83 of 2 June 1983, as subsequently amended by Council Regulation (EEC) No. 1247/92 of 30 April 1992, read in conjunction with Annex IIa, disability living allowance falls within the scope of that provision and is therefore a special non-contributory benefit within the meaning of Article 4(2a) of that regulation, with the result that the position of a person such as the claimant in the main proceedings, who, after 1 June 1992 when Regulation No. 1247/92 entered into force, satisfied the conditions for the award of that benefit, is governed exclusively by the system of coordination established by the said Article 10a.
2. Examination of Regulation No. 1247/92, in so far as it sets aside, in the case of disability living allowance, the principle of waiver of residence clauses laid down in Article 10 of Regulation No. 1408/71, has not disclosed any factor of such a kind as to affect its validity.