UK Social Security and Child Support Commissioners' Decisions

R(A) 1/99
(Partridge v. Adjudication Officer (C-90/97))

Mr. J. Mesher CA/324/1995
2.9.96

ECJ (C. Gulmann, acting as President of the Third
Chamber, J. C. Moitinho de Almeida and
J.-P. Puissochet, judges; Advocate General:
P. Léger)

11..6.98

Mr. J. Mesher
22.6.98


Residence and presence conditions - whether claimant was assisted by European Community legislation

The claimant was awarded attendance allowance at the lower rate from and including 21 July 1992. On 27 July 1993 she left Great Britain to go and live with her son in France. On being notified of this, the adjudication officer made a decision that the claimant was not entitled to attendance allowance from and including 28 July 1993 because the conditions in regulation 2(1) of the Social Security (Attendance Allowance) Regulations 1991 ("the 1991 regulations") were not satisfied. This decision was confirmed on review.

The claimant's son appealed against the review decision. A social security appeal tribunal (by a majority) rejected the appeal on the grounds that the claimant (a) was not ordinarily resident in Great Britain and so regulation 2(1)(a)(i) of the 1991 regulations was not satisfied; (b) was not present in Great Britain and so the provisions of regulation 2(1)(a)(ii) of the 1991 regulations were not satisfied; and (c) could not be treated as though she were present in Great Britain under any of the provisions of regulation 2(2) of the 1991 Regulations. The claimant's son appealed to a Commissioner.

The Commissioner gave an interim decision on 2 September 1996 explaining why the conditions in regulation 2(1) of the 1991 regulations were not met, but found that he could not dispose of the case immediately because he needed to refer a question to the European Court of Justice regarding the interpretation of the provisions of Council Regulation (EEC) No. 1408/71 concerning the right to continue to receive attendance allowance of a person who had left Great Britain to live in another Member State. Whilst the reference was outstanding the claimant died on 11 November 1996 and her son was appointed to continue with her claim.

The European Court of Justice gave their decision on the reference on 11 June 1998. The Court ruled that, (i) until the date on which the amendments made to Council Regulation (EEC) 1408/71 by Council Regulation (EEC) No 1247/92 came into force (1 June 1992), attendance allowance was governed by the rule on waiver of residence clauses in Article 10 of Council Regulation (EEC) 1408/71; (ii) from the coming into force of those amendments, attendance allowance was governed by the system of co-ordination laid down in Article 10a of Council Regulation (EEC) 1408/71; (iii) persons who were already in receipt of attendance allowance or who satisfied the conditions for receiving it before 1 June 1992 could continue to rely on the rule in Article 10; (iv) the situation of persons satisfying the conditions of entitlement to attendance allowance as from 1 June 1992 was governed by Article 10a.

Applying its decision in Snares v. Adjudication Officer (Case C-20/96)(reported as R(DLA) 5/99), the Court found that the inclusion of attendance allowance in Annex IIa to Council Regulation (EEC) 1408/71 conclusively established that it fell within the scope of Article 10a. That conclusion could not be called into question by the fact that point 11 of Section L of Annex VI to the regulation defines attendance allowance as an invalidity benefit for the purposes of application of Article 10, or that the United Kingdom had made a declaration under Article 5 that attendance allowance falls under Article 4(1), which declaration had not been adapted at the time when the amendments came into force.

On receipt of the reply to his question, the Commissioner gave the final decision.

Held, allowing the appeal, that:

the tribunal erred in law in failing to consider the possible effect on the claimant's entitlement of European Community legislation (paragraph 6 of the interim decision);

the conditions in regulation 2(1) of the 1991 regulations were not met, in the light of the proper meaning to be given to the phrases "ordinarily resident" and "temporary" (paragraphs 19 and 11 of the interim decision);

the claimant could not rely on the rule on waiver of residence clauses in Article 10 of Council Regulation (EEC) 1408/71 because she was not in receipt of attendance allowance and did not satisfy the conditions for receiving it before 1 June 1992. In determining the date from which a person satisfied the conditions for receiving attendance allowance, regard must be had to the rule in section 35(4) of the Social Security Act 1975 that there could be no entitlement to attendance allowance before the date of claim. On the facts, there was no dispute that the date of claim was 21 July 1992 (paragraph 6 of the final decision);

the claimant's situation under European Community law was governed by the system of co-ordination in Article 10a of Council Regulation (EEC) 1408/71. That provision only requires the Member State where a person is habitually resident to award attendance allowance "in the territory of" that Member State and in accordance with its legislation. Article 10a could therefore not prevent the 1991 Regulations from having effect. (paragraph 5 of the final decision).

The Commissioner substituted his own decision (taking into account the death of the claimant) that she was not entitled to attendance allowance for the period 28 July 1993 to 11 November 1996 (both dates included).

INTERIM DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I give the following interim decision in the claimant's appeal. The decision of the Bristol social security appeal tribunal dated 11 July 1994 is erroneous in point of law, for the reason given below, and I set it aside. I am in a position to substitute my decision for that of the appeal tribunal having made the necessary findings of fact (Social Security Administration Act 1992, section 23(7)(a)(ii)). My decision applying the terms of regulation 2 of the Social Security (Attendance Allowance) Regulations 1991 would be that the decision awarding the claimant lower rate attendance allowance fell to be reviewed with effect from 28 July 1993 on the ground of a relevant change of circumstances and that from and including 28 July 1993 the claimant was not entitled to attendance allowance. However, I cannot determine whether European Community law requires the disapplication of regulation 2 and give the final decision on the appeal without referring a question to the European Court of Justice for a preliminary ruling. The proceedings are stayed for that process to be carried out.

Background

2. The claimant was born on 14 October 1908. She was awarded the lower rate of attendance allowance from and including 21 July 1992. That was apparently on the basis of a need for day-time attention or supervision. She was then aged 83 and suffered from Alzheimer's Disease. Her son had a power of attorney to act for her. She was then apparently living in a flat of her own. Her condition worsened and her son decided that the stage had been reached at which he would have to give up his paid employment and take her into his own home to care for her. His existing home was not large enough to accommodate his mother and extra residential helpers. He could not afford to buy a large enough property in this country. So he decided to buy a property in France. Having made some earlier enquiries about the benefit position in that event, the claimant's son wrote to the Attendance Allowance Unit on 8 May 1993 to say that his mother would be vacating her flat in Weston-Super-Mare on 22 July 1993 and arriving in France on 27 July 1993. He said that this was so that he could care for her permanently, and gave their new address in France as "her address for the rest of her life". I shall come back to the claimant's son's intentions in more detail later.
3. On 29 July 1993 the adjudication officer reviewed the decision awarding attendance allowance on the ground of a relevant change of circumstances, i.e. that the claimant left Great Britain on 27 July 1993. The revised decision was that the claimant was not entitled to attendance allowance from and including 28 July 1993 because she was not present in Great Britain and could not be treated as present in Great Britain. It may be helpful to set out here the terms of the provision under which the revised decision was given, regulation 2(1) and (2) of the Social Security (Attendance Allowance) Regulations 1991 (the 1991 Regulations):

"(1) Subject to the following provisions of this regulation, the prescribed conditions for the purposes of [section 64(1) 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

(b) [relates only to persons receiving tax-free emoluments].

(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

(a) he is abroad in his capacity as —

(i) a serving member of the forces,

(ii) an airman or mariner within the meaning of regulations 81 and 86 respectively of the Social Security (Contributions) Regulations 1979,

and for the purposes of this provision, the expression "serving member of the forces" has the same meaning as in regulation 1(2) of the Regulations of 1979; or

(b) he is in employment prescribed for the purposes of [section 120 of the Social Security Contributions and Benefits Act 1992] in connection with continental shelf operations; or

(c) he is living with a person mentioned in sub-paragraph (a)(i) and is the spouse, son, daughter, step-son, step-daughter, father, father-in-law, step-father, mother, mother-in-law or step-mother of that person; or

(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 adjudication officer took the view that the claimant's absence from Great Britain was from the outset not for a temporary purpose and that therefore the conditions of entitlement related to residence and presence were not satisfied.

4. The claimant's son queried that decision (also arguing that his mother now needed night-time attention and supervision as well as day-time). That was treated as an application for review on any grounds. The review was carried out on 20 September 1993. The decision was not altered. The explanation included the conclusion that the claimant's absence from Great Britain was permanent and was not for the purpose of being treated. In addition a certificate had been signed on behalf of the Secretary of State on 7 September 1993 under regulation 2(2)(e) of the 1991 Regulations refusing to certify that it was consistent with the proper administration of the Act that the claimant should be treated as though she were present in Great Britain. The explanation also referred to Council Regulation (EEC) 1408/71 and stated that following the amendment by Council Regulation (EEC) 1247/92 the continuation of entitlement to attendance allowance for someone who left Great Britain to live in another Member State was prevented where the entitlement began on or after 1 June 1992.

The appeal tribunal's decision

5. The claimant's son appealed against the decision on review. In the letter of appeal and in subsequent documents he set out the circumstances and the case he was making under the regulations in considerable detail. He was able to attend a hearing before the appeal tribunal on 11 July 1994. The appeal tribunal by a majority disallowed the claimant's appeal. I do not now need to go into the oral evidence and the appeal tribunal's findings of fact (especially as the claimant's son disputes some of the record of his submissions). The majority of the appeal tribunal (or possibly all three members) decided that from 28 July 1993 the claimant was not ordinarily resident in Great Britain, and so failed to meet the test in regulation 2(1)(a)(i) . The whole of the appeal tribunal agreed that the claimant's son was providing her with treatment, in the form of the care which palliated the ill effects of her Alzheimer's Disease. But the majority concluded that the claimant's absence was not temporary and that to receive treatment was not the "specific or sole purpose" of her residence in France, so that regulation 2(2)(e) could not apply. The dissenting member concluded that the absence was temporary and was for the specific purpose of receiving treatment. There was no mention of any European Community legislation.
6. It is for that final omission that the appeal tribunal's decision falls to be set aside as erroneous in point of law. Whether the European Community legislation can in the final analysis help the claimant or not, the appeal tribunal should have stated and explained its view of its effect. Therefore, I do not need to explore any deficiencies in the appeal tribunal's approach to regulation 2 of the 1991 Regulations or to the evidence. The claimant's appeal to the Commissioner, for which leave was granted by a Commissioner, must be allowed.
7. Because of the complications of the specific provisions of Regulation 1408/71 relating to attendance allowance an oral hearing of the appeal was directed. The claimant's son was able to attend the oral hearing and gave some further evidence in amplification of written submissions. I am clearly in a position to make the necessary findings of fact and to apply what I find to be the correct legal principles. There is no dispute that the leaving of Great Britain was a relevant change of circumstances, justifying review of the award of attendance allowance under section 25(1)(b) of the Social Security Administration Act 1992. What is in dispute is whether the award should be revised adversely to the claimant for all or any of the period from 28 July 1993 down to the date of my final decision, on which issue the burden of proof is on the adjudication officer. There is no need to refer the case back to a new appeal tribunal to determine that issue.
8. I deal first with the application of regulation 2 of the 1991 Regulations and second with the European Community law issues. On both issues I have been greatly assisted by the thorough and even-handed submissions made on behalf of the adjudication officer by Mr. Cooper of the Office of the Solicitor to the Department of Social Security. The claimant's son was prepared to let me grapple with the problems of European Community law, but I was also greatly assisted by his clear and measured submissions on regulation 2, in which he said everything which could fairly be said on his mother's behalf. Because I wanted to be sure that the domestic legal situation was firmly established before considering the European Community law points, I directed that there should be further written submissions on some issues, in particular on a forthcoming Court of Appeal decision which might have turned out to be of relevance. Unfortunately that process has led to additional delay before I have been able to consider those further submissions.

The 1991 Regulations

9. In order to satisfy regulation 2(1) all three conditions set out in sub-paragraph (a) must be satisfied. From 28 July 1993 onwards the claimant did not actually satisfy condition (ii), because she was not present in Great Britain. She was present in Great Britain for some days in July 1994 on a visit to her sister, at which time the appeal tribunal hearing was arranged, so that her son could attend. But by that date the claimant also failed actually to satisfy condition (iii) because she had not actually been present in Great Britain for at least 26 weeks in the previous 52 weeks. Therefore, the claimant could only succeed if she could be treated as present in Great Britain under regulation 2 (2) .
10. Regulation 2(2)(d) is potentially relevant, subject to the limitation to 26 weeks of continuous absence. However, I am satisfied that the claimant's absence was not at its beginning, or subsequently, for a temporary purpose. I consider that the proper approach to the meaning of "temporary" is that taken by the Court of Appeal in Chief Adjudication Officer v. Ahmed and others (16 March 1994), a case about the meaning of the phrase "temporarily absent from Great Britain" in the Social Security (Persons Abroad) Regulations 1975. The Court of Appeal specifically said that it is wrong to treat "temporary" as being synonymous with "not permanent", as had been suggested in an earlier case, or that an absence remains temporary so long as the prospect of it ending has not become too remote. It was stressed that each case has to depend on its particular facts, but the word "temporarily" was said to connote that, "though the date of return may remain uncertain, the absence contemplated is for a limited period only." It is relevant that the context is an exception to a general disqualification for receiving benefit during absence from Great Britain.
11. I accept that in the present case the circumstances must be judged not by looking at the claimant's intentions, which in the light of her condition would be difficult to ascertain, but by looking at the steps taken by her son in relation to her. I also accept that too much weight should not be given to the use of words like "permanent" in various statements made by the claimant's son around the date of the move to France. I find the position to have been that at that date, and continuously up to the present, he intended to care for his mother in his home (wherever that was) for the rest of her life or until such time as her condition deteriorated to a point at which she needed hospital treatment or possibly until he became incapable, even with help, of caring for her at home. For the foreseeable future, because of the cost of suitable property, the claimant's son's home would be in France. Thus, the purpose of the claimant's absence from Great Britain was not a permanent one, in the sense that circumstances might arise in the future in which she would have to return to Great Britain for hospital or other medical treatment. But that does not in itself, under the Ahmed approach, mean that the absence was for a temporary purpose. I find that the absence was to enable the claimant to be cared for in the circumstances as they were in July 1993, when there was nothing to suggest that those circumstances might not continue essentially unchanged for several years. The absence was not for a limited period. I conclude that it was not for a temporary purpose in July 1993. If a new period of absence began after the visit to Great Britain in 1994, I find that that also was not for a temporary purpose. The claimant therefore is not assisted by regulation 2(2)(d).
12. Regulation 2(2)(e) is also potentially relevant, because if all the other conditions were satisfied I could ask the Secretary of State to reconsider the negative certificate given on 7 September 1993. However, the other conditions are not satisfied. For the reasons given immediately above, I am satisfied that throughout the claimant's absence has not been temporary. That in itself is fatal to the application of regulation 2(2)(e). Therefore, I do not need to decide whether or not the claimant's absence from Great Britain was for the specific purpose of being treated for her disabling condition. But since that question was the subject of one of the major contentions on behalf of the claimant and required further submissions after the oral hearing, I shall indicate my view very briefly. The claimant's son argued strongly that no more could be done by the most highly qualified medical staff to treat the claimant than was done by himself and his residential helpers in caring for the claimant. There was no cure for Alzheimer's Disease and the only treatment which could be given was to palliate its effects and to keep a sufferer comfortable, safe, fed and clean. Therefore, he said, the claimant left Great Britain for the specific purpose of being treated.
13. In the written submission dated 22 May 1996 the adjudication officer refers to the Court of Appeal's decision in Botchett v. Chief Adjudication Officer (7 May 1996). That was the decision which was awaited at the date of the oral hearing in the present case. The issue in Botchett was whether the claimant, who was a resident in a registered nursing home for mentally handicapped persons, was undergoing medical or other treatment as an inpatient in a hospital or similar institution (Social Security (Hospital In-Patients) Regulations 1975). She received what was described as no more than social care in a domestic situation. The Court of Appeal decided that the care and assistance which the claimant received from nursing as opposed to domestic staff was "medical or other treatment". It drew support from an earlier case in which in which an institution was found to be a hospital because the care provided to persons with certain incurable diseases or physical complaints was provided by people who were professionally trained to care for the sick. Thus, as it turns out, the decision in Botchett does not assist the claimant in the present case. But it should not be taken to conclude the case against the claimant on the question of treatment, because the context was different. It should be considered whether in regulation 2(2) of the 1991 regulations, and in similar regulations allowing an exception from a general disqualification for benefit while absent from Great Britain, the notion of being treated has a wider meaning.
14. In the submission of 22 May 1996 the adjudication officer refers to several Commissioners' decisions on the exception for temporary absence for the specific purpose of being treated for incapacity in the Persons Abroad Regulations. The claimant's son has commented on those decisions and pointed out the differences between the facts dealt with in those decisions and his mother's circumstances. I sympathise with him in that it is very difficult to deduce any coherent principle from what is only a small selection out of the relevant decisions. In addition to the decisions cited by the adjudication officer I think that R(S) 1/65 and R(S) 2/69 are particularly relevant. I do not want to burden this decision with a case by case examination. Suffice it to say that it seems to me that the authorities establish that, especially in the case of mental disablement or illness, the notion of being treated, although requiring some administration of treatment by a person or agency other than the patient, may extend beyond medical treatment by medically qualified persons. And it clearly covers treatment which is aimed at palliating the ill-effects or the pain or discomfort resulting from an illness or disability, although not ordinary domestic care. The authorities do not clearly establish that only treatment by a person with some professional qualification or training in the care of the sick can count, although it may be that the more recent decisions suggest a narrower rather than a wider approach. I would have found the decision in the present case very difficult, especially in view of the engagement of a number of helpers, albeit apparently without any professional training in the care of the sick. Beyond that, and acknowledging the strength of the case made for the claimant, I do not think that I want to go.
15. The result is that the claimant cannot be treated as present in Great Britain under regulation 2(2) of the 1991 regulations, so that my conclusions on regulation 2(1)(a)(ii) and (iii) set out in paragraph 9 above stand.
16. Finally in relation to regulation 2(1) of the 1991 regulations, I must consider sub-paragraph (a)(i) which imposes the condition of ordinary residence in Great Britain. A claimant must actually meet this condition on any day in order to be entitled. If a claimant is treated as present in Great Britain for any day under regulation 2(2), that does not affect the question of ordinary residence.
17. On this question, the claimant's son gave evidence that his mother retained a life interest in the flat in Weston-Super-Mare which she had previously occupied. It therefore remained available for her use. She was responsible for charges in relation to the flat, such as council tax. He also stressed that she paid UK income tax on her civil service and state retirement pension, which were paid into her UK bank account. In the questionnaire completed on 13 February 1993 the claimant's son ticked that his mother would not be keeping a home in Great Britain and would not be keeping any furniture or personal goods in Great Britain.
18. When regulation 2(1)(a)(i) refers to ordinary residence it refers to the general legal concept which is used in many other contexts. The classic description of the concept is in the speech of Lord Scarman in R v. Barnet London Borough Council, ex parte Shah [1983] 2 AC 309. He uses a number of forms of words, but I think that the essence of his approach is summed up as follows at [1983] 2 AC 343:

"Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that "ordinarily resident" refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration."

Lord Scarman had earlier recognised that ordinary residence can survive temporary or occasional absences.

19. I am satisfied that on leaving Great Britain on 27 July 1993 the claimant ceased to be ordinarily resident in Great Britain. I do not have to decide whether or not she immediately became ordinarily resident in France. Her absence was not merely temporary. On leaving, despite the retention of an interest in the flat in Weston-super-Mare and payment of UK tax, the regular order of her life was changed and there was no longer a settled purpose of living in Great Britain. I take into account the point made by the claimant's son, that by that time the claimant was not mentally capable of forming any intention or settled purpose about her future in any country. But I think that I must take into account the decisions made on her behalf by her son, and on that basis the regular order of her life changed, and not merely on a temporary basis. Thus throughout the period from 28 July 1993 onwards, the claimant has failed to satisfy the condition in regulation 2(1)(a)(i) of the 1991 regulations.
20. I therefore conclude that throughout the period from 28 July 1993 onwards, the claimant has failed to satisfy at least one of residence and presence conditions in regulation 2(1) of the 1991 regulations. On that basis the revised decision on review would be that the claimant is not entitled to attendance allowance from and including 28 July 1993.

European Community law

21. If the claimant had been awarded attendance allowance and then left Great Britain before 1 June 1992, when the amendment of Council Regulation (EEC) 1408/71 by Council Regulation (EEC) 1247/92 took effect, her entitlement to attendance allowance would have continued despite her absence from Great Britain and the terms of the 1991 regulations. That would have because attendance allowance was recognised as an invalidity benefit within Article 4(1). Not only had that been held to be so in Commissioners' decisions R(A) 4/75 and R(A) 2/94, consistently with the principle in Newton v. Chief Adjudication Officer (Case C-356/89) [1991] ECR I-3017, point 11 of Section L (now Section O) of Annex VI to Regulation 1408/71 provides:

"For the purposes of Articles 10, 27, 28, 28a, 29, 30 and 31 of the Regulation, the attendance allowance granted to an employed or self-employed person under United Kingdom legislation shall be considered as an invalidity benefit."

In addition, attendance allowance is included in the United Kingdom's declaration under Article 5 of Regulation 1408/71, last amended in December 1986, as a scheme referred to in Article 4(1). Then, under Article 10(1) of Regulation 1408/71, the 1991 regulations would be prevented from having the effect of withdrawing entitlement to attendance allowance by reason of the claimant's residence in a Member State other than the United Kingdom.

22. I note at this point that it was not disputed by the adjudication officer in the written submission dated 15 May 1995, or by Mr. Cooper at the oral hearing, that the claimant in the present case comes within the personal scope of Regulation 1408/71 as an employed or self-employed person who has been subject to the legislation of one or more Member States (Article 2). I am not in a position to verify that independently, because her entitlement to a state retirement pension and a civil service pension could have arisen on the basis of the employment and social security contributions paid by a spouse. However, the adjudication officer, who has easy access to the records of social security contributions, has not raised any doubts and I proceed on the basis that the claimant falls within Article 2.
23. The claimant not only left Great Britain after 1 June 1992, but she first became entitled to attendance allowance after 1 June 1992. Therefore her rights under Regulation 1408/71 must be considered on the basis of the amendments made by Regulation 1247/91 with effect from 1 June 1992 and she is not able to rely on the transitional provisions in Article 2 of Regulation 1247/91. In brief, the amendments introduced a new category of "special non-contributory benefits" (Article 4(2a) of Regulation 1408/71 as amended), which under the new Article l0a are to be granted to persons to whom the Regulation applies "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 a benefit is to be granted by the competent institution of the place of residence. Attendance allowance is listed in point (d) of Section L (now Section O) of Annex IIa to Regulation 1408/71. The amendments are set out in more detail in my reference to the European Court of Justice in CDLA/913/1994 (Snares), a copy of which I attach to this interim decision as appendix A.
24. The argument for the adjudication officer is in essence that as from 1 June 1992 attendance allowance no longer falls within the category of an invalidity benefit to which Article 10 (which remains unamended) of Regulation 1408/71 can apply. By virtue of Annex IIa, it is a special non-contributory benefit to which Article l0a applies. It is said that the claimant became resident, ie habitually resident (Article 1(h)), in France on 28 July 1993, so that attendance allowance is no longer required to be provided by the United Kingdom. I would add that, even if the claimant could have been said to remain habitually resident in the United Kingdom for some period after 27 July 1993, that would not help her under Article l0a (1) . That is because that provision only requires the Member State where a person is habitually resident to grant special non-contributory benefits "in the territory of" that Member State and in accordance with its legislation. Article 10a(1) would not prevent the 1991 regulations from having effect.
25. The claimant here is in very much the same position as the claimant in CDLA/913/1994 (Snares), although that case was concerned with disability living allowance (DLA) for a person under the age of 65, rather than attendance allowance for a person of 65 or over. In the reference to the European Court of Justice in that case I set out the argument made for Mr. Snares, to the effect that DLA, which would have been accepted as an invalidity benefit before the amendments to Regulation 1408/71, continues to fall within Article 10(1) as an invalidity benefit, so that it can still be "exported". The claimant's case here is at least as strong as Mr. Snares', with the additions that the United Kingdom's declaration specifying attendance allowance as falling within Article 4(1) and Point 11 of Section L of Annex VI defining attendance allowance as an invalidity benefit for the purposes of Article 10 remained unamended in 1992, and have not been amended since.
26. In CDLA/913/1994 I considered that it was necessary to refer questions to the European Court of Justice on the proper interpretation, and possibly the validity of, the amendments made by Regulation 1247/92. The reference was made on 15 January 1996. If the Court answers either of those questions in a way which is favourable to Mr. Snares, and to the continued right to export invalidity benefits under Article 10(1) notwithstanding their purported inclusion in the category of special non-contributory benefits, then it seems inevitable that the claimant in the present case will have the right to export her attendance allowance. Thus clearly I cannot decide the appeal against her until the Court has given its answers in CDLA/913/1994, which may not happen for another 12 months. Can I decide the appeal in her favour on the Community law issue now, without waiting for the answers from the Court in CDLA/913/1994? At the oral hearing, Mr. Cooper urged that I should not. He submitted that, on the assumption that the Court decides against Mr. Snares in CDLA/913/1994, it could not be said that the words of the United Kingdom declaration or of Point 11 of Section L of Annex VI were sufficiently clear to create a special exception for attendance allowance. He suggested that the new Annex IIa overtook the effect of the United Kingdom's declaration and that Annex VI would only help the claimant if she could otherwise get within Article 10 and the new Article l0a prevented that.
27. I have concluded that, in the light of what seems to me the overall obscurity of the effects of the amendments to Regulation 1408/71 and taking into account Mr. Cooper's submissions, I cannot be completely certain that, whatever the outcome of CDLA/913/1994, the claimant has the right to export her attendance allowance entitlement under Article 10(1). Therefore, I cannot decide the appeal now without the benefit of preliminary rulings from the European Court of Justice. I could simply wait for the Court to answer the questions referred in CDLA/913/1994 and then consider whether any further question needs to be referred. However, that might result in an unacceptable degree of further delay in the determination of this case. I do not know whether the procedure before the European Court of Justice in CDLA/913/1994 has reached too advanced a stage for the present case to be joined with it, but even if it has, I think it would an advantage for the judges in that case to know that another case exists specifically involving attendance allowance, the United Kingdom's declaration and Annex VI. Accordingly, I shall refer to the European Court of Justice for a preliminary ruling a supplementary question to the questions referred in CDLA/913/1994. Further steps in the present case are stayed pending the answer to that question, subject to what is said immediately below.
28. No application has been made to the Commissioner on behalf of the claimant for interim payments of benefit or for an interim award of benefit pending the decision of the European Court of Justice. No doubt no-one would have thought of making such an application until one was made on behalf of Mr. Snares in CDLA/913/1994. I ruled on that application on 26 July 1996 (a copy of the ruling is attached to this interim decision as appendix B). I held that a Commissioner has no power, even in a Community law case, to order interim payments of benefit to be made. Any application for interim payments must be made to the Secretary of State. I did not finally decide whether a Commissioner has power, in such a case, to make an interim or provisional award of benefit, because I concluded that, if such a power existed, the conditions for exercising it were not met in CDLA/913/1994. I say no more about that question, because I think that I should give the claimant's son an opportunity to consider whether to make an application to me for an interim award of benefit. However, he should bear in mind what is said in paragraph 17 of my ruling on the application for interim relief in CDLA/913/1994. That is that any interim award of benefit made by a Commissioner, assuming that the power to do so exists, might be of limited practical use, because it appears that the Secretary of State would still have a discretion to suspend actual payment of benefit under that award.
29. My interim decision in this case is set out in paragraph 1 above. When the European Court of Justice has answered the question referred, or when it has answered the questions referred in CDLA/913/1994 (Snares), if that is sooner, I shall consider the appropriate directions for the final determination of the appeal (which could include a withdrawal of the reference to the Court).

Date: 2 September 1996 (signed) Mr. J. Mesher

Commissioner

REFERENCE TO THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES BY THE COMMISSIONER


30. This request for a preliminary ruling is made in the course of proceedings before the Social Security Commissioner on an appeal by the claimant from the decision of the Blackpool social security appeal tribunal dated 11 July 1994. The issues in the case are whether the claimant's entitlement to attendance allowance should be terminated on review from the date on which she left Great Britain to live in France, thereby ceasing to satisfy the national legislation as to ordinary residence and presence in Great Britain, and what is the effect of the amendments to Council Regulation (EEC) 1408/71 contained in Council Regulation (EEC) 1247/92.
31. The factual background is set out in the interim decision of the Commissioner annexed to this request. The context of the domestic legislation is set out in the interim decision read in conjunction with the reference dated 17 January 1996 made in the case of Kelvin Albert Snares against the Adjudication Officer (Case C-20/96).
32. For the reasons given in the interim decision, the following question is, by virtue of Article 177 of the Treaty of Rome, referred to the Court of Justice of the European Communities for a preliminary ruling:

How, if at all, would the answers given to the questions referred in the case of Snares v Adjudication Officer (Case C-20/96) differ in the case of a claimant entitled under United Kingdom legislation to attendance allowance as an employed or self-employed person, in the light of the terms of the United Kingdom's declaration of 31 December 1986 under Article 5 of Council Regulation (EEC) 1408/71 and of Point 11 of Section O (previously Section L) of Annex VI to that Regulation?

The decision of the European Court of Justice follows
 


DECISION OF THE EUROPEAN COURT OF JUSTICE

N. Paines, Barrister and L. Nicoll, of the Treasury Solicitor's Department, agent, for the United Kingdom.

F. Anton and A. P. Feeney, agents, for the Council of the European Union.

P. Hillenkamp and C. Docksey, agents, for the Commission of the European Communities.

The Opinion of the Advocate General was delivered on 5 March 1998 and is reported at [1998] ECR I-3469

Judgment

33. By order of 2 September 1996, received at the Court on 11 September 1996, the Social Security Commissioner referred for a preliminary ruling under Article 177 of the EC Treaty a question on the interpretation 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 (OJ 1983 L 230, p. 6, hereinafter "Regulation No 1408/71"), as subsequently amended by Council Regulation (EEC) No. 1247/92 of 30 April 1992 (OJ 1992 L 136, p. 1).
34. That question arose in a dispute between Mrs. Partridge, a United Kingdom national, and the Adjudication Officer concerning the award of the attendance allowance ("AA") provided for under United Kingdom legislation.

The national legislation

35. Prior to 1 April 1992 United Kingdom legislation provided for two invalidity benefits: AA and mobility allowance ("MA").
36. On 1 April 1992 the Disability Living Allowance and Disability Working Allowance Act 1991 introduced disability living allowance ("DLA"), which was at the centre of the case giving rise to the judgment of 4 November 1997 in Case C-20/96 Snares v Adjudication Officer [1997] ECR I-6057. DLA has two components: a care component, intended for dependent persons and corresponding to the former AA, and a mobility component, intended for those with impaired walking ability and corresponding to the former MA. The care component is payable at three different rates depending on the nature of the person's disability and care needs, while the mobility component is payable at two different rates depending on the nature and extent of impairment of the ability to walk. The two highest rates of the care component correspond to those at which AA was payable and the higher rate of the mobility component corresponds to that at which MA was payable.
37. With effect from 1 April 1992, AA, in the case of recipients under the age of 65, and MA already awarded were converted into awards of the care and mobility components of DLA As from that date, therefore, no new awards of AA or MA were to be made, with the exception of AA in the case of recipients over the age of 65. In the latter case, AA, previously governed by the Social Security Act 1975, is payable under section 64(1) of the Social Security Contributions and Benefits Act 1992 and the Social Security (Attendance Allowance) Regulations 1991.
38. Like DLA and, previously, MA, AA is non-contributory, is not linked to incapacity for work, and is not means-tested. Claimants must also satisfy conditions of residence and presence in Great Britain.
39. Regulation 2(1) and (2) of the Social Security (Attendance Allowance) Regulations 1991 provides as follows:

"(1) Subject to the following provisions of this regulation, the prescribed conditions for the purposes of [section 64(1) 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

40. Prior to 1 June 1992, the date on which Regulation No. 1247/92 entered into force, Article 4 of Regulation No. 1408/71 provided as follows:

"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 ...

...

This regulation shall not apply to social and medical assistance ..."

41. Article 5 of Regulation No. 1408/71 added:

"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."

42. Section L (United Kingdom) of the updated declarations of the Member States provided for in Article 5 of Regulation No. 1408/71 (OJ 1986 C 338, p. 1) refers to the legislation covering AA
43. Finally, Article 10 of Regulation No 1408/71 provided as follows:

"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 ..."

44. Regulation No. 1247/92, adopted pursuant to Articles 51 and 235 of the EEC Treaty, added a paragraph 2a to Article 4 of Regulation No. 1408/71. Article 4(2a) is worded as follows:

"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);

or

(b) solely as specific protection for the disabled."

45. At the same time, Article 5 of Regulation No. 1408/71 was amended to ensure that the declaration made by Member States under that provision should also cover "the special non-contributory benefits referred to in Article 4(2a)". The United Kingdom has not made any declaration in regard to those benefits.
46. Regulation No. 1247/92 also added Article 10a, which provides as follows:

"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."

47. AA is listed in Point (d) of Section L (United Kingdom) of Annex IIa to Regulation No. 1408/71.
48. Finally, Article 89 of Regulation No. 1408/71 provides that special procedures for implementing the legislation of certain Member States are set out in Annex VI. That annex, in the version applicable to the main proceedings, states in Point 11 of Section L (United Kingdom):

"For the purpose of Articles 10 ... of the Regulation, the attendance allowance granted to an employed or self-employed person under United Kingdom legislation shall be considered as an invalidity benefit."

49. Following the adoption of Council Regulation (EEC) No. 1249/92 of 30 April 1992 amending Regulation No. 1408/71 and Regulation (EEC) 574/72 laying down the procedure for implementing Regulation No. 1408/71 (OJ 1992 L 136, p. 28), Point 5 of Section L of Annex VI to Regulation No. 1408/71 provides:

"For the purposes of applying Article 10a(2) to the provisions governing entitlement to attendance allowance ... a period of employment, self-employment or residence completed in the territory of a Member State other than the United Kingdom shall be taken into account in so far as it is necessary to satisfy conditions as to presence in the United Kingdom, prior to the day on which entitlement to the benefit in question first arises."

The dispute in the main proceedings

50. Mrs. Partridge was in receipt of a State retirement pension and a United Kingdom civil service pension when, at the age of 83, she was awarded by the adjudication officer AA at the lower rate with effect from 21 July 1992.
51. Mrs. Partridge left the United Kingdom on 27 July 1993 to live with her son in France. She died there on 11 November 1996.
52. Taking the view that, from the outset, the claimant's absence from the United Kingdom was not intended to be temporary and that one of the conditions laid down in Regulation 2(1) and (2) of the Social Security (Attendance Allowance) Regulations 1991 was therefore no longer satisfied, the adjudication officer decided, on 29 July 1993, to withdraw Mrs. Partridge's entitlement to AA. That decision was upheld on 20 September 1993.
53. On 11 July 1994 the Blackpool Social Security Appeal Tribunal dismissed Mrs. Partridge's appeal against that decision, finding that, from 28 July 1993, she ceased to satisfy the condition laid down in Regulation 2(1)(a)(i) of the Social Security (Attendance Allowance) Regulations 1991. No reference was made in that decision to the Community legislation.
54. Mrs. Partridge thereupon appealed to the Social Security Commissioner, who set aside the decision of the Blackpool Social Security Appeal Tribunal on the ground that it had failed to consider the relevance of Community law to the resolution of the dispute.
55. With regard to Community law, the Social Security Commissioner first pointed out, in his order for reference, that it was common ground that Mrs. Partridge came within the scope of Regulation No. 1408/71, as defined in Article 2 thereof.
56. The Social Security Commissioner went on to note that if Mrs. Partridge had been awarded AA and then left the United Kingdom before 1 June 1992, the date on which Regulation No. 1247/92 entered into force, she could, in accordance with Article 10 of Regulation No. 1408/71, have continued to receive that allowance. In the light of the case-law of the Court of Justice (see, to that effect, Case C-356/89 Newton v. Chief Adjudication Officer [1991] ECR I-3017), Point 11 of Section L of Annex VI to Regulation No. 1408/71, and the declaration made by the United Kingdom under Article 5 of Regulation No. 1408/71, which includes that benefit among the schemes referred to in Article 4(1) thereof, AA was at the time recognised as an invalidity benefit within the meaning of Article 4(1) of Regulation No. 1408/71.
57. Since, in this case, Mrs. Partridge's entitlement to the allowance in question arose after 1 June 1992, the rights which she derived from Regulation No. 1408/71 must be considered on the basis of the amended version of that regulation resulting from Regulation No. 1247/92, without her being able to rely on the transitional provisions contained in the latter regulation, which provide that that regulation does not affect the maintenance of the rights of persons who, before that regulation entered into force, were already entitled to the benefit or who satisfied the conditions for entitlement thereto.
58. The Social Security Commissioner considered that the position of Mrs. Partridge was very similar to that of Mr. Snares, even though his case concerned DLA. Consequently, if the Court's reply in Snares were to be that there was a continued right to export DLA under Article 10(1) notwithstanding its inclusion in the category of special non-contributory benefits, Mrs. Partridge should also be entitled to export AA. If, on the other hand, the Court were to decide that, in the light of Article 10a of Regulation No. 1408/71, as amended, DLA could not be exported in Mr. Snares's case, the same solution should, in the view of the adjudication officer, be adopted for AA in the case of Mrs. Partridge, notwithstanding the United Kingdom's declaration under Article 5 of Regulation No. 1408/71 and Point 11 of Section L of Annex VI.
59. In the light of those considerations, the Social Security Commissioner decided to stay proceedings and refer the following question to the Court:

"How, if at all, would the answers given to the questions referred in the case of Snares v. Adjudication Officer (Case C-20/96) differ in the case of a claimant entitled under United Kingdom legislation to attendance allowance as an employed or self-employed person, in the light of the terms of the United Kingdom's declaration of 31 December 1986 under Article 5 of Council Regulation (EEC) No. 1408/71 and of Point 11 of Section O (previously Section L) of Annex VI to that Regulation?"

The question submitted for a preliminary ruling

60. It should be noted at the outset that, in Snares, the Court ruled that, on a proper construction of Article 10a of Regulation No. 1408/71, as amended by Regulation No. 1247/92, read in conjunction with Annex IIa, DLA 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 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.
61. The Court also ruled in that judgment that examination of Regulation No. 1247/92, in so far as it sets aside, in the case of DLA, the principle of waiver of residence clauses laid down in Article 10 of Regulation No. 1408/71, did not disclose any factor of such a kind as to affect its validity.
62. Next, under Article 10a of Regulation No. 1408/71, as amended by Regulation No. 1247/92, persons to whom that regulation applies are entitled to the special non-contributory cash benefits referred to in Article 4(2a) in accordance with the coordination rules set out therein, provided that such benefits are listed in Annex IIa. That is the case with regard to AA, which is mentioned under Point (d) of Section L (United Kingdom) of that annex.
63. The fact that the Community legislature refers, in Annex IIa to Regulation No. 1408/71, to legislation such as that relating to AA must be accepted as establishing that benefits granted pursuant to that legislation are special non-contributory benefits falling within the scope of Article 10a of Regulation No. 1408/71 (see, in particular, to that effect, Snares, paragraph 30).
64. Furthermore, the wording of Article 10a implies that the benefits to which it refers also come within Article 4(2a) of Regulation No. 1408/71, as amended by Regulation No. 1247/92 (Snares, paragraph 31).
65. In those circumstances, a benefit such as AA is, by reason of the fact that it is listed in Annex IIa, governed by the coordination rules of Article 10a and is consequently a special non-contributory benefit within the meaning of Article 4(2a) (see, to this effect, Snares, paragraph 32).
66. That interpretation is borne out by the third, fourth, fifth and sixth recitals in the preamble to Regulation No. 1247/92, from which it is clear that the intention of the legislature was to provide a specific system of coordination taking account of the special characteristics of certain benefits falling simultaneously within the categories of both social assistance and social security and treated, according to the Court's case-law, as social security benefits as regards workers already covered by the social security scheme of the State whose legislation is relied on (see, in particular, Newton and Snares). As the Advocate General has stated at point 24 of his Opinion, a benefit such as AA is indeed a benefit of that kind.
67. Furthermore, the fact that the United Kingdom has not made a declaration under Article 5 of Regulation No. 1408/71, as amended by Regulation No. 1247/92, in so far as it provides that Member States are to specify the special non-contributory benefits covered by Article 4(2a), does not preclude AA from being classified as a special non-contributory benefit within the meaning of the latter provision (see, to that effect, Snares, paragraph 34).
68. As the Court pointed out in paragraph 35 of its judgment in Snares, the fact that rules have not been mentioned in the declaration made by a Member State is not conclusive in this regard and is therefore not of itself proof that those rules do not come within the scope of the provision in question.
69. Similarly, such a classification cannot be called in question by the fact that Point 11 of Section L of Annex VI to Regulation No. 1408/71 defines AA as an invalidity benefit for the purposes of application of Article 10 of that regulation or by the fact that, in accordance with the United Kingdom's declaration under Article 5 of the same regulation, AA falls under Article 4(1) thereof.
70. With regard, first, to the definition in Point 11 of Section L of Annex VI, it follows from its wording that, while AA is classified as an invalidity benefit for the purposes of the application of Article 10 of Regulation No. 1408/71, this does not, as such, preclude the possibility that Article 10a of that regulation may, in an appropriate case, apply to the same benefit.
71. It should be noted in this connection that, according to Article 2 of Regulation No 1247/92, that regulation does not affect the maintenance of rights of individuals who, before that regulation entered into force, were already in receipt of the benefit (Article 2(1)) or satisfied the conditions for receiving it (Article 2(2)). Consequently, while Point 11 of Section L of Annex VI to Regulation No. 1408/71 applies to persons who were already in receipt of AA, or who satisfied the conditions governing its award before the date on which Regulation No. 1247/92 entered into force, and who, as such, may continue to rely on the principle of waiver of residence clauses laid down in Article 10 of Regulation No. 1408/71, that annex none the less does not prevent the situation of persons satisfying the conditions for entitlement to AA as from 1 June 1992 from being governed, as is clear from the present judgment, by Article 10a of Regulation No. 1408/71.
72. That interpretation, to the effect that AA, depending on the point in time at which the disability arose, comes either under the scheme established by Article 10 of Regulation No. 1408/71 or under that introduced by Article 10a, is corroborated by Point 5 of Section L of Annex VI to that regulation, as amended by Regulation No. 1249/92, which, for its part, expressly envisages the possibility of Article 10a(2) applying to the provisions governing entitlement to AA.
73. Second, the fact that the above declaration, made by the United Kingdom under Article 5 of Regulation No. 1408/71, was not adapted at the time when Regulation No. 1247/92 entered into force provides no ground for calling in question the interpretation of the provisions of that regulation according to which a person such as the applicant in the main proceedings, whose disability, which gave rise to payment of AA, arose after Regulation No. 1247/92 entered into force, is covered exclusively by the provisions of the latter regulation.
74. In those circumstances, the answer to the question submitted must be that, on a proper construction of Article 10a of Regulation No. 1408/71, as amended by Regulation No. 1247/92, read in conjunction with Annex IIa, AA 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 applicant in the main proceedings, who satisfied the conditions for the award of that benefit after 1 June 1992 when Regulation No. 1247/92 entered into force, is governed exclusively by the system of coordination established by the said Article 10a.

Costs

75. The costs incurred by the United Kingdom Government, the Council and the Commission, 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 proceedings pending before the national tribunal, the decision on costs is a matter for that tribunal.

On those grounds,

THE COURT (Third Chamber),


In answer to the question referred to it by the Social Security Commissioner by order of 2 September 1996, hereby rules:

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, attendance 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 applicant in the main proceedings, who satisfied the conditions for the award of that benefit after 1 June 1992 when Regulation No. 1247/92 entered into force, is governed exclusively by the system of coordination established by the said Article 10a.


 


FINAL DECISION OF THE SOCIAL SECURITY COMMISSIONER

76. This decision is to be read in conjunction with my interim decision dated 2 September 1996. In that decision I set aside the decision of the Bristol social security appeal tribunal dated 11 July 1994 as erroneous in point of law and indicated that my substituted decision on the facts which I found would under the terms of regulation 2 of the Social Security (Attendance Allowance) Regulations 1991 ("the 1991 regulations") be that the decision awarding the claimant lower rate attendance allowance fell to be reviewed with effect from 28 July 1993 on the ground of relevant change of circumstances (ie the claimant's leaving Great Britain for more than a temporary purpose) and that from and including 28 July 1993 the claimant was not entitled to attendance allowance. I explained in detail why that result had to follow from the application of regulation 2 to the facts. However, I considered that a question of European Community law arose whether Council Regulation (EEC) No. 1408/71 required the terms of the 1991 regulations to be disapplied, so that the claimant's entitlement to attendance allowance would continue notwithstanding her leaving Great Britain. Accordingly, I referred a question to the European Court of Justice ("the ECJ") for a ruling.
77. The claimant sadly died on 11 November 1996. This did not affect the proceedings before the ECJ. Her son was appointed by the Secretary of State to continue with her attendance allowance claim, so that the proceedings before me were able to continue.
78. Following the decision of the ECJ in Snares v. Adjudication Officer (Case C-20/96) [1997] ECR I-6057, I was asked by the Registrar of the ECJ whether I wished to maintain the question referred. I decided to maintain the question, as I wished the ECJ to deal with the points of difference in the parts of Regulation 1408/71 dealing with attendance allowance as opposed to disability living allowance (the benefit in question in Snares).
79. The ECJ has now in the judgment issued on 11 June 1998 (under the reference Partridge v. Adjudication Officer (Case C-297/96)) ruled on the question referred. Its ruling is adverse to the claimant. The essence of the ruling is that the attendance allowance awarded to the claimant from 21 July 1992 falls exclusively within the scope of Article 10a of Regulation 1408/71 as a special non-contributory benefit. The consequence is that she cannot rely on the effect of Article 10(1) of Regulation 1408/71 as it applies to invalidity benefit, which category would prior to 1 June 1992 have included attendance allowance.
80. As was explained in my interim decision, Article 10a does not prevent regulation 2 of the 1991 regulations having effect. Only the application of Article 10(1), allowing the "exporting" of benefits within its scope, would have that result. As the claimant cannot rely on Article 10(1), there is nothing in Regulation 1408/71 to disapply the 1991 regulations.
81. I should add that I have looked again at whether the claimant could possibly be assisted by the transitional protections in Council Regulation (EEC) No. 1247/92, which are referred to in paragraph 39 of the ECJ's judgment. She clearly cannot be assisted by Article 2(1) as she was not in receipt of attendance allowance before 1 June 1992. Nor did she satisfy the conditions for receiving it before 1 June 1992
     
    

(Article 2(2)). It has never been suggested that she might have satisfied the medical conditions for an award (which included the condition of having met the qualifying test for six months: Social Security Act 1975, section 35(3)) before 21 July 1992. And section 35(4) also provided that there could be no entitlement to attendance allowance for any period before the date of claim. It has never been suggested that the award was not made from the date of claim. Therefore, the claimant could not be assisted by those transitional protections.

82. Ordinarily, where questions have been referred to the ECJ, I would give the parties an opportunity to make submissions on the effect of the ruling before giving the final decision. However, in the present case, there is only one possible outcome. The consequence if the ECJ's ruling did not go in the claimant's favour was made clear in my interim decision. Therefore, I shall not delay matters any further, but give the final decision in the case immediately.
83. The claimant's death has put an end to the period in issue in the appeal. My substituted decision on the claimant's appeal against the adjudication officer's decision issued on 20 September 1993, refusing an "any grounds" review under section 30(1) of the Social Security Administration Act 1992 of the adjudication officer's decision of 29 July 1993, therefore deals with the period from 28 July 1993 to 11 November 1996.
84. My decision is that the appeal fails and that the adjudication officer's decision awarding the claimant attendance allowance from and including 21 July 1992 falls to be reviewed with effect from 28 July 1993 on the ground of a relevant change of circumstances (Social Security Administration Act 1992, section 30(2)(b)) and that the revised decision on review is that the claimant is not entitled to attendance allowance for the period from 28 July 1993 to 11 November 1996 (both dates included).

Date: 22 June 1998 (signed) Mr. J. Mesher
CommissionerPRIVATE