Upper Tribunal (Administrative Appeals Chamber)

KB v Secretary of State for Work and Pensions [2009] UKUT 124 (AAC) (02 July 2009)
Residence and presence conditions
temporary absence from Great Britain

 


DECISION OF THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

The claimant's appeal to the Upper Tribunal is allowed. The decision of the Weymouth appeal tribunal dated 13 April 2007 involved an error on a point of law and is set aside. It is appropriate for the Upper Tribunal to re-make the decision on the claimant's appeal against the Secretary of State's decision dated 15 March 2006 (Tribunals, Courts and Enforcement Act 2007, section 12(2)(b)(ii) and (4)(a)). That decision is that the appeal is allowed and that the decision dated 1 February 2006 awarding the claimant the higher rate of the mobility component of disability living allowance and the middle rate of the care component for the period from 31 October 2005 to 20 October 2008 does not fall to be superseded on the ground of an anticipated relevant change of circumstances from and including 29 September 2006.

REASONS FOR DECISION

1. This appeal was one of the four selected as test cases on the issue of the scope and effect of the decision of the European Court of Justice (ECJ) in Commission of the European Communities v European Parliament and Council of the European Union, Case C-299/05, on the "exportability" of both components of disability living allowance (DLA), but in particular the mobility component, both before and after 5 May 2005. There was an oral hearing of the test cases on 18 and 19 December 2008, at which the claimant was represented by Mr David Forsdick of counsel, instructed by Sarah Clarke, solicitor to the Child Poverty Action Group. The Secretary of State for Work and Pensions was represented by Mr Thomas de la Mare of counsel, instructed by the Solicitor to the Department. The subsequent delay has gone a long way beyond what the parties and others waiting for the outcome were entitled to expect and I apologise for it. In the end I have decided this particular appeal on a ground that does not involve deciding the controversial questions of European Community law. The only comfort from the claimant's point of view in relation to the delay is that, although a significant amount of benefit is involved in the outcome of his appeal, he had become entitled again to DLA at the same rates from 9 May 2007, following his return to Britain on 1 November 2006.
2. The appeal tribunal was concerned with the decision dated 15 March 2006 that, on supersession, the claimant was not entitled to DLA from and including 29 March 2006 because the conditions relating to residence and presence in Great Britain were not met, in that he was moving to Rhodes at the end of March 2006. There is no dispute about his continued satisfaction of the medical conditions of entitlement to both components of DLA. The information on the basis of which the decision was given needs to be established with care.
3. On 3 February 2006 the claimant wrote to the DLA authorities as follows:

"I am writing to you in connection with my telephone call with one of your advisors. In the middle to end of March I am leaving to go and live in Haraki, Rhodes, Greece. I cannot live here no more has my health is suffering with the cold, giving me discomfort in my chest with angina and in my knees, with arthritis. I am hoping that the temperature and conditions over there will improve my health. I am going to try for a period of 12 months and if my health have improved then I will stay. I have check out the internet about medical treatment, and with Greece being in the EU, then medical treatment is free. I would however have to pay partial amounts towards the cost of medicines. I have enclosed a list of the medication that I am on at present.

I really hope that you can help in any way because feeling the way I do now is so upsetting. I want to get better and return to work, but no one will set me on in the condition I am now."

4. An officer of the Disability and Carers Service (DCS) telephoned the claimant on 9 March 2006 and completed a DBD231 questionnaire over the telephone. That is a questionnaire that is usually sent out to DLA or attendance allowance recipients who have said that they have or are going abroad. The completed questionnaire was not sent to the claimant for checking and signature. The claimant said that he hoped to leave on 26 March 2006, but that was not yet confirmed. The officer ticked the box for "To live abroad", rather than for a holiday, for medical treatment or other. To the question about why the claimant would be living abroad, the officer wrote "Going to try it for 6 months & if no good will return to the UK". To the question "Will you come back to live permanently in Great Britain?" the officer ticked between yes and no and wrote "Possibly - Going to try to live abroad for 6 months". There was a tick that the claimant owned a home in Great Britain, with a note "selling up" and a tick that the home would not be kept. There was a tick that furniture and personal things would be left in Great Britain, with the note "Giving it to family". Neither section 2, on payment methods if abroad temporarily, nor section 3, on payment methods if abroad permanently, was completed, but there was a line through section 3 and in section 2 the printed word "temporarily" was underlined. However, on the front of the questionnaire was written, in the same handwriting, "Treat as Permanent absence eff Wed 26/3/06 following. DM Confirmed".
5. The decision was made on 15 March 2006 and notification was apparently issued on the same day. So far as the DCS was concerned, that was the last it heard of the matter until 18 September 2006 when the claimant emailed asking for advice, saying:

"As you will be aware I left the UK to try to improve my health in the sunny temps of Rhodes, Greece. Well I was wrong and my condition has got so bad that it resulted in me being admitted to Rhodes hospital and the Nimkis hospital in Athens and so now we would like to return to the UK and back to our family. We gave it nearly 6 months and it has been a disaster. I have applied to the North Dorset council for a house to rent hopefully which can be adapted to me. Can you tell me that my claim for DLA and my wife's carer allowance is still OK and that we would not have to fill out the forms again and wait...."

An officer replied that the claimant's DLA had been ended as he had told them that he was going abroad permanently, but that if he returned to the UK within 26 weeks the decision-maker might be able to change that decision as having been made under a mistake of fact. If not, he would have to reapply on his return. When the claimant asked if the 26-week deadline could be extended, because he would not be fit to travel after a recent operation for three or four weeks, he was told that that would have to be decided by a decision-maker when he returned and made a claim.

6. The claimant and his wife did return to Great Britain on 1 November 2006. He submitted a new claim for DLA on 13 November 2006. That claim was disallowed on 30 January 2007 on the ground that he had not been present in Great Britain for 26 weeks out of the previous 52 weeks (Social Security (Disability Living Allowance) Regulations 1991, regulation 2(1)(a)(iii)). I shall come back later to that decision, which is not part of the present appeal. On 17 November 2006 the claimant lodged an appeal against the termination of his DLA. Understandably in the light of the email exchanges and the somewhat misleading information he had been given, he concentrated on arguing that he had good cause for not returning to Great Britain within 26 weeks of leaving, because of his admissions to hospital on 19 June 2006 and 15 September 2006, after which he was unable to travel, as he had informed the DCS before the expiry of the 26 weeks. The late appeal was admitted.
7. The claimant attended the hearing on 13 April 2007 with his representative, Mrs Helen Jones of Weymouth and Portland Citizens Advice Bureau. Unfortunately, the chairman's record of proceedings is no longer in the Tribunal Service file, but it appears that Mrs Jones sent in the written submission now at pages 128A to 128G on 5 April 2007, probably with the documents now at pages 121 to 126 attached or sent earlier. The appeal tribunal certainly had those documents. They were the terms of an offer of a junior partnership in an estate and letting agency operating on Rhodes to the claimant and his wife, to be responsible for running the office there, and a note from one of the senior partners describing the dissolution of the partnership on 1 September 2006, because of the lack of success of the business and the claimant's need to return to the United Kingdom for treatment. The crux of the submission on the DLA Regulations, as opposed to EU law, was that the claimant's absence from Great Britain was throughout for a temporary purpose within regulation 2(2)(d), so that he should have been treated as present for the first 26 weeks. There was this further explanation:

"At the time his intentions were to try spending a period of time in Greece to see if his health improved. He had been to Greece the previous year for two weeks' holiday and had felt a lot better. Therefore he hoped that a longer period of time would further improve his condition.

[The claimant] had to sell his house in the UK to support himself and his wife while away because he had been told by the DWP that he would not be entitled to any subsistence benefits. However, he was subsequently awarded Incapacity Benefit three months after leaving the UK. [The claimant] also wanted to clear some debts that had arisen and used some of the capital from the sale of his home to do so. He lent his furniture to members of his family because they were setting up their own homes. This was on the understanding that it would be returned when they came back to the UK."

8. The appeal tribunal disallowed the appeal. Among its findings of fact, clearly based on an evaluation of the claimant's evidence on 13 April 2007 as well as the documents, were the following:

"3. The appellant in fact left Great Britain to live in Rhodes on 27th March 2006. The Tribunal finds, in accordance with his evidence, that his purpose in doing so was to benefit his health, and that if the move had done so he would not have returned. There was some discussion at the hearing whether, as the Appellant insisted, his partnership contract was in fact for a temporary period of twelve months or whether it was intended to be on a more permanent basis as the offer document and the Note from [the senior partner] both imply. However, the Tribunal makes no finding on this because we are satisfied that it is irrelevant since, as the Appellant said in evidence, he did not go for employment but for his health, and had his health improved and the partnership had ended he would have looked for another job in Rhodes.

4. Regrettably living on Rhodes did not improve the Appellant's health; he had thought that with reduced angina and pain from arthritis he would be more active and would lose weight, but he found that the intense heat precluded this, he put on weight, had further heart problems and found that his medication was very expensive. He was admitted to hospital in June 2006, but agreed to give up his bed in favour of an emergency victim of a serious accident which had taken place, and there was then a misunderstanding which meant that he was not admitted for his angiogram and treatment in Athens until September. ..."

9. The appeal tribunal said this under "Law and Reasons":

"4. It is contended that the Appellant's `intentions were to try spending a period of time in Greece to see if his health improved'; Mrs Jones submitted that he went for an initial temporary period of six months to see if his health improved. However, the question for the Tribunal is not whether he went for a temporary period or an initial temporary period but whether he went for a temporary purpose. His purpose was not to investigate whether a change of climate could benefit his health: he had already discovered that it could on his holiday the previous year. His purpose was in his words `to benefit my health'. This was not, in the Tribunal's view, a temporary purpose; he wanted to benefit his health permanently - or at least as permanently as life will allow. He was aware that his purpose might not be fulfilled, and that in spite of the apparent benefits he found the previous year, living in Greece might not in practice improve his health, and he sensibly resolved to review his decision in six months. However, the possibility that his purpose might not in practice be fulfilled does not make it a temporary purpose. His clear evidence was that had his health improved he would not have returned to Great Britain; he said that in those circumstances `I would have been daft to come back'. The Tribunal appreciates that there may have been financial pressures which led the Appellant to dispose of his home in Great Britain, that there may have been uncertainty about how long he could rely on the estate agency partnership and that it was difficult for him to be precise in predicting to the DBU [Disability Benefits Unit] how long he would in practice be abroad. However, none of these factors is sufficient to change the nature of his purpose in leaving Great Britain, which was, for the reasons given a permanent and not a temporary purpose."

10. The appeal tribunal went on to decide that the claimant could not benefit from regulation 2(2)(e) of the DLA Regulations because he had not left Great Britain for the specific purpose of being treated for his conditions in Greece and the Secretary of State had not given the necessary certificate and that Council Regulation (EC) No 1408/71 did not assist him.
11. The claimant now appeals against the appeal tribunal's decision with my leave, granted particularly in the light of the ECJ's decision in Case C-299/05 issued on 18 October 2007. However, throughout the claimant's representatives have maintained that the appeal tribunal went wrong in law in its application of regulation 2(2)(d) of the DLA Regulations.
12. Regulation 2(1)(a) of the DLA Regulations includes in the conditions of entitlement to DLA for any day that the claimant is ordinarily resident in Great Britain (head (i)) and present in Great Britain (head (ii)). Regulation 2(2) provides:

"(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) - (c) [not relevant];

(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) [temporary absence for specific purpose of treatment]."

13. Mr Forsdick for the claimant put the case this way in his written summary, to which nothing of real substance was added at the oral hearing:

"5. The evidence is all consistent. Plainly [the claimant] wanted to benefit his health but the reason for his absence was, even on the Tribunal's own factual findings, to see whether the short term improvement in health he had enjoyed during his holiday the previous year was sustained over a longer period: see [paragraph 4 of the findings of fact]. His purpose was to test out whether a longer period in Greece had the desired effect. If it did, the temporary purpose - testing it out - would no longer apply and he would live there permanently. If the temporary purpose - testing it out - showed it did not have the desired effect he would return.

6. The Tribunal made a leap of logic which is wrong. The underlying logic was that because: (1) he knew Greece had worked last year; and (2) he admitted his purpose was to improve his health, therefore the `purpose' was not temporary. But this ignores the basic point that he did not know whether Greece would work longer term - would benefit his health - an he therefore needed to test it out - to see whether the short term benefit translated into a longer term gain."

14. Mr de la Mare for the Secretary of State submitted that the appeal tribunal's conclusion was correct and that the fact that subsequent events disappoint an intended purpose does not disturb its original nature. The claimant fully expected his health to improve, so that the deterioration was an unexpected contingency that did not affect the non-temporary nature of the original purpose. None of the appeal tribunal's reasoning was irrational or misconceived.
15. There is obviously some force in the submission for the Secretary of State, but I cannot accept it in relation to the appeal tribunal's stated reasoning. A number of legal difficulties need to be cleared away.
16. First is the effect of section 12(8)(b) of the Social Security Act 1998, prohibiting the taking into account of circumstances obtaining after the date of the decision (15 March 2006). Thus, neither the appeal tribunal nor the Upper Tribunal on appeal could take into account what actually happened after the claimant and his wife had got to Greece. The focus has to be on what changes of circumstances could have been anticipated on 15 March 2006. In particular, the focus has to be on what the claimant's purpose was before he left Great Britain.
17. Second is the rather unusual language of regulation 2(2) of the DLA Regulations. A claimant only escapes the disentitlement that would otherwise follow not being physically present in Great Britain on any day if one of the reasons listed is the only reason for the absence. That condition, if interpreted in a rigid way, could deprive regulation 2(2) of most of its application and so must, in my view, be given a broad interpretation so as not to exclude people who in substance fall and continue to fall within the scope of one of sub-paragraphs (a) to (e).
18. Then the language of sub-paragraph (d) is unusual in not referring to a temporary absence or being absent temporarily, but to an absence being for a temporary purpose. I have not found any other social security provision that uses the same formula, although regulation 9(1)(b) of the Family Allowances (Qualifications) Regulations 1946 as amended contained a condition that an absence from Great Britain was to be treated as temporary except where it was or was when it began for a purpose other than a temporary purpose. In paragraph 12 of decision R(F) 3/64 the Commissioner said that the word "purpose" there should be construed broadly, continuing:

It would not be sufficient for the claimant to prove that her husband returned to Uganda for the purpose of taking some employment of short duration, if he intended after that to take further employment in Uganda. His purpose in this case was in my judgment to live and earn his living in Uganda, his home country, in some branch of the law, making use of his legal studies and the legal training which he had received [in Great Britain]. In my judgment it is quite impossible to say that his purpose was a temporary purpose. Even assuming that he intended to return for a temporary period of six months in England or from time to time to visit his children [left at a prep school in England], nevertheless his absence from Great Britain was for a purpose other than a temporary purpose."

That seems to me to give the right flavour as far as I need to explore the meaning of the phrase. It is clear that temporary does not mean "not permanent" and that a purpose which it is recognised may not be fulfilled is not for that reason alone made temporary. On the other hand, it must be the case in my judgment that if a person goes abroad on a genuine trial basis that is for a temporary purpose unless the contemplated period of the trial is too long to allow that conclusion.

19. Relating that to the present case, the appeal tribunal was therefore right to focus on the claimant's purpose. However, it seems to me that it reached a conclusion of fact about what that purpose was that could not be supported by the evidence before it. I agree with Mr Forsdick that on the evidence considered relevant by the appeal tribunal the only conclusion that could fairly be reached was that the claimant's purpose was to test out whether the improvement in his health that occurred on a short holiday would be replicated in the longer term under the stresses of a full-scale move. In my words, there was a genuine trial period. The facts that the claimant wanted and hoped (even with confidence at the outset) to benefit his health permanently and that, had his health improved, he would not have returned to Great Britain do not alter that. Since the appeal tribunal accepted the claimant's evidence in finding that he had "sensibly resolved to review his decision after six months", on that basis the conclusion would have to follow that the period of the trial was not so long as to make the purpose not temporary. The case was not one of an indefinite purpose that might be subject to future temporary interruptions or to contingencies causing a change of purpose.
20. With that fundamental finding of fact undermined, the appeal tribunal's reasoning and decision cannot stand, as Mr de la Mare accepted. The appeal tribunal had recognised that, if the claimant were properly to be deemed to be present in Great Britain on 27 or 29 March 2006, he still had to satisfy the condition that he was ordinarily resident here (DLA Regulations, regulation 2(1)(a)(i)). However, it took the view that if satisfied that the claimant's absence was for a temporary purpose he would not have lost his ordinary residence here. That must be right. The appeal tribunal's decision cannot be upheld on that alternative ground.
21. It is then not necessarily straightforward to substitute a decision on the claimant's appeal against the decision of 15 March 2006. The Secretary of State has put forward some further evidence, some pages at least from a form BF5(SS) (claiming incapacity benefit while abroad) signed by the claimant on 26 March 2006. On that form the claimant said that he was leaving Great Britain because "the temperature and conditions will help me, as at the moment my chest and my arthritis is poor" and because his wife (carer) was leaving. The next question asked whether he would be coming back to Great Britain and, if yes, when approximately he expected to do so and, if an approximate date could not be given, why not. The claimant ticked the no box and did not add any comments. The form instructed the claimant then to go to Part 7, which has not been copied. In Part 9 (other information) he wrote:

"I am leaving as my health is suffering under the weather conditions here. My wife and carer has been offered a partnership in an estate agents, and I cannot manage without her. I will be checking emails for her but will receive no money as our accommodation is rent free. There is no way that I can work but hopefully my condition will improve. We are going on holiday first before my wife starts work on the 2nd May 2006. With me helping my wife, and for legal reasons, I have also been offered a partnership, but I will receive no income for 12 months. There is no way that I will be helping out more than 14 hours a week, and after October, no more than 4 a week."

Even if that new evidence had not been produced, whoever decided the claimant's appeal after the setting aside of the decision of appeal tribunal of 13 April 2007 would be able to re-evaluate all the existing documentary evidence. There is therefore an argument for remitting the case to a new tribunal for a rehearing where the claimant and his wife would have the opportunity to attend to give evidence and answer questions in person, to provide a more detailed picture.

22. I have, however, concluded against that argument. The circumstances have to be established as at 15 March 2006, more than three years ago. It seems to me to be asking more than human nature can sustain for the claimant and his wife now to give dispassionate evidence, uninfluenced what has happened since and by knowledge of what would be to their advantage in benefit terms. When the normal fading and unreliability of memory is added to the equation, I do not think that that oral evidence from the claimant and his wife is likely to take matters forward in any significant way. I am then in as good a position as a new tribunal to evaluate the documentary evidence, which has the added advantage of avoiding even the small further delay until a rehearing could be organised.
23. If what was being considered was merely the claimant's purpose and intentions to do with his health, the answer would in my judgment be clear. I have already said that on the evidence on that issue before the appeal tribunal the only fair conclusion was that the claimant was going to Rhodes for a genuine trial period of about six months and was therefore going to be absent for a temporary purpose. However, the new evidence described in paragraph 21 must be taken into account as relevant to the circumstances as at 15 March 2006. I look separately below at the relevance of the partnership offer to the claimant and to his wife.
24. In relation to his health, it seems to me that what the claimant wrote on the form BF5(SS) is consistent with the conclusion just expressed. He was setting out why the weather in Greece could suit him better than the British weather and did put things in terms of hoping that his condition would improve, although without saying what he might do if it did not. However, the tick in the no box in answer to the question about whether he would be coming back to Great Britain is obviously a pointer against the genuineness of the trial period. The claimant might well say that since he could not give even an approximate date for returning to Great Britain, he could only answer no. In that case, he is not helped by his failure to put any explanation in the box available. Whether or not he was influenced by what he thought would have been necessary to get a form E121 issued (that could have made it easier to get some medical treatment in Greece) I do not know. I think it would be pointless to ask him now. In the event, according to the Secretary of State's detailed written submission to the Upper Tribunal (prepared by Mr Jeremy Heath), an E121 valid from 1 July 2006 was not issued until there was eventually a decision that the claimant remained entitled to long-term incapacity benefit despite the move and the work he had said he was going to do. The way that the form BF5(SS) was completed raises the possibility that the claimant may sometimes have completed forms with an eye to the desired outcome. But that does not as such alter the view that I have taken of what was the claimant's actual purpose at the time in relation to his health.
25. I disagree with the appeal tribunal that the terms of the partnership agreement were irrelevant on the ground that, if the claimant's health had improved he would have stayed in Greece if the partnership fell through. Although he and his wife would apparently not have gone to Greece if it were not for his health, to a very large extent each of their own purposes was also the others (as the claimant said on the form BF5(SS), his wife and carer was leaving and he could not manage without her) and the partnership agreement was fundamental to how they thought that they were going to be able to live in Greece. It cannot gave been irrelevant to the claimant's purposes at the time of leaving.
26. The partnership offer document in the papers was by its heading addressed to the claimant only, with a space for acceptance and signature by him only. He signed it on 16 January 2006. But in the test there was a reference to an offer of a junior partnership to the claimant and his wife. I suspect that there was another document addressed to her in the same terms. It is quite a long document and difficult to summarise. The two senior partners seem to have been based in Cornwall. The document described a estate and lettings agency that had started trading on Rhodes in April 2005 on a very low-cost basis to attempt to get the business started "in what can only be described as a slightly hostile situation". The return was said to have been reasonable and the long-term market promising. The senior partners did not want to employ anyone directly, because of complications, but wanted to find a junior partner as operations manager on Rhodes, to keep the office open in the season from May to October and to keep the business going through the year. The junior partner would be entitled to a "set base level of drawings and a fixed percentage of net profit returned", with no cash investment required. And "the living accommodation provided, plus the provision of a car and all the acceptance of all cost relative to electric, water and telephone shall be determined as the sum applicable for the directors draw". The return to partners was to be by way of an annual draw on 31 March, of a specified share of net profit for the year after allowing the amount of operating capital provided by the senior partners plus a 20% return. The share specified for the claimant and his wife was 18% each, predicted at 5,328 euros each on a gross income for the partnership (presumably after expenses) of 52,000 euros. The partnerships were offered to the claimant and his wife "on a one year basis and will become open for discussion and valuation after the first year of operations". There was provision for them to give two months' notice of relinquishing the partnership, in which case there would be no entitlement to a share of profits during that financial year.
27. There seem to me to be some significant ambiguities in the terms of the offer, although some of that may have been clarified in discussions between the parties. In particular, it is not clear to me whether the cost of the accommodation (I think in practice a flat over the office), utility bills and the provision of a car and cost of business use was meant to be an expense of the partnership as a whole, to be taken into account in calculating gross income and net profit or was meant to be set against the share of profit otherwise due to the claimant and his wife. The reference to drawing suggested the latter, but if so there was no provision for a situation where their share of the profit was insufficient to cover those costs.
28. At any rate, regardless of how things later turned out, the position might have appeared like this to the claimant and his wife. They were committing themselves to some degree to the partnership for a year, but there was no guarantee at all that there would be any profit to share at the end of that year. In the meantime, they would be provided with somewhere to live and a car to get around. They had not had to put any capital into the partnership, so that if the business folded within the year or the claimant's health did not improve, or worsened, they could give notice and walk away without the loss of any capital investment. Day to day living expenses could be met from the proceeds of sale of their home in Worksop, after the clearing of some debts. If they continued to receive their UK benefits that would be a welcome contribution. They could be said to have burnt at least some of their boats in Britain by selling their home, thus abandoning the chance of future capital gains and making it significantly more difficult for them to buy a home if they had to return, and by distributing their furniture etc amongst the family. And no doubt it would be foolish to go into a business venture like the partnership without an attitude of some determination to make it succeed and prosper on a long-term basis. On the other hand, the claimant was only 47 in March 2006 and I assume that his wife was around the same sort of age. It was not as if this venture would have been their last chance during a time when they were of working age and that they would not have had time to re-establish themselves financially and socially in Britain, albeit with initial difficulties, if they had to come back from Greece. A supportive and reasonable family would assist and would not insist on keeping what they had been given.
29. Trying to weigh all that up, in my view the claimant's health purpose and the business purpose for himself and his wife were wrapped up together. This is not a case where, even if the claimant's purpose in relation to his health were accepted as temporary, he would not fall within regulation 2(2)(d) of the DLA Regulations because that was not the sole reason for his absence from Great Britain in the light of a longer-term business purpose. Either the wrapped-up purpose was a temporary one or it was not. And that seems to me to depend on whether the driving force for the claimant's and his wife's actions in March 2006 was the health purpose or the business purpose. If the driving force was the business it would be difficult, despite what was said in the previous paragraph, to regard the purpose at the beginning as merely temporary. If the driving force was the claimant's health, then the wrapped-up purpose was still temporary for the reasons already given, because the business elements could be made secondary to and subject to the overriding proviso of a trial period to test out whether the claimant's health would in fact improve, while providing immediate practical advantages.
30. The issue is very finely balanced. I bear in mind that this is a case where the Secretary of State is seeking to supersede an existing award of benefit, so that the burden of showing both that there is a ground of supersession and that the existing decision should be altered to the claimant's detriment falls on him. I have concluded that the Secretary of State has failed on the balance of probabilities to prove that the driving force was not the claimant's health. While trying to remain conscious of the need to ignore what actually happened, with the severe deterioration in the claimant's health, rather than a mere failure to improve, I am satisfied that as at the date of the decision under appeal the driving force of the plan to go to Greece was the claimant's health, with the business issues secondary. Accordingly, it has not been shown that as at 15 March 2006 the purpose of the claimant's absence from 27 March 2006 would be other than temporary. The result is that, although there a change of circumstances anticipated when the claimant left Great Britain, it was not a relevant change. By virtue of regulation 2(2)(d) of the DLA Regulations he was to be treated as still present in Great Britain and as satisfying the condition of entitlement in regulation 2(1)(a)(ii). It is a matter of agreement that if at that point the absence was solely by reason of a temporary purpose, the claimant would still also be ordinarily resident in Great Britain and would satisfy the condition in regulation 2(1)(a)(i). The same result would follow if one said that there had been a relevant change of circumstances, as no alteration of the existing award would then have been appropriate on supersession.
31. The decision to that effect is set out at the beginning of this document. I have considered whether I should go on to decide on the further change of circumstances that could have been anticipated on 15 March 2006, ie the expiry of the 26 weeks allowed by regulation 2(2)(d) of the DLA Regulations. I think that that is something that could have been done by the Secretary of State on 15 March 2006. There could then have been a further supersession for relevant change of circumstances if it turned out that the purpose of the absence ceased to be temporary within the 26 weeks or the claimant ceased to be actually absent from Great Britain within that period. However, determining the effect of ceasing to satisfy regulation 2(2)(d) would involve both a decision on whether as at 15 March 2006 it could be anticipated that the claimant would on 24 September 2006 meet the conditions under Regulation No 1408/71 for the export of the care component of DLA to Greece as a sickness benefit and whether mobility component was to be exportable on the same basis (on which issue I have decided a reference to the ECJ is necessary). The first of those issues will be much better considered by the Secretary of State on the basis of evidence about what actually happened in Greece. In addition, as a period of only a few weeks may be at stake in practice (see below), the Secretary of State may decide that the time and expense of investigation and decision is disproportionate. Accordingly, I have limited my decision to leaving the claimant's existing award of DLA unaltered and in operation from 29 March 2006. That leaves the Secretary of State to carry out a further supersession if he thinks fit.
32. The interaction with the decision of 30 January 2007, on a new claim, that the claimant was not entitled to DLA from and including 13 November 2006 works out as follows. The effect of my decision is that the claimant's entitlement to continues in effect after 28 March 2006 unless and until that is altered by any subsequent supersession or revision decision, at least down to 12 November, the day before the disallowance of entitlement to DLA in the decision of 30 January 2007 took effect. For the period from 27 March 2006 to 24 September 2006 he is by virtue of regulation 2(2)(d) of the DLA Regulations deemed to have been present in Great Britain. It seems unlikely (although I do not of course rule it out) that anything that actually happened in Greece during that period would lead the Secretary of State (having accepted my conclusions on temporary purpose at the outset) to find that the purpose of the claimant's absence had ceased to be temporary. Accordingly, on that basis as at 13 November 2006 he would have been present in Great Britain for the purposes of regulation 2(1)(a)(iii) for well over 26 weeks in the previous 52 weeks. According to Mr Heath in his detailed written submission the claimant's appeal against the decision of 30 January 2007, of which he may not have been notified until November 2007, appears still to be outstanding. If so, the Secretary of State has the power to revise the decision under regulation 3(4A) of the Decisions and Appeals Regulations. If there is not a revision, the First-tier Tribunal can take account of the effect of my decision as having retrospectively altered the circumstances as at 30 January 2007. If there is not an appeal outstanding, I think I ought not to say more about how the decision could now be altered.
33. I do not have to grapple with the interesting question of whether regulation 2(1)(a)(iii) makes DLA in so far as it is a special non-contributory benefit "subject to the completion of periods of residence" (Regulation No 1408/71, Article 10a(2)), so that periods of residence completed in another Member State count as if completed here, nor how Article 18(1) might apply in so far as DLA is a sickness benefit.
34. In relation to the period from 25 September 2006 to 12 November 2006, matters turn on whether the Secretary of State thinks it worthwhile carrying out a supersession to alter the claimant's ongoing entitlement to DLA in whole or in part when the claimant was actually present here in Great Britain from 1 November 2006.
35. I regret that my decision removes the Child Poverty Action Group and Mr Forsdick from the process of consultation on the questions to be referred to the ECJ and subsequent proceedings before the ECJ. However, I hope that their expertise may be called on in one of the other three test cases.

(Signed on original): J Mesher

Judge of the Upper Tribunal

Date: 2 July 2009