Upper Tribunal (Administrative Appeals Chamber)

BH v Secretary of State for Work and Pensions [2009] UKUT 95 (AAC) (18 May 2009)
European Union law
Council regulation 1408/71/EEC

 


THE UPPER TRIBUNAL Appeal No. CIB 455 2008

ADMINISTRATIVE APPEALS CHAMBER

DECISION

The decision of the Secretary of State of 7 02 2007 is confirmed. The appellant's periods of National Insurance completed under the laws of the United Kingdom do not amount to one year.

REASONS FOR DECISION

1. This is my final decision in an appeal on which I issued an interim decision on 16 09 2008. In my interim decision I set aside the decision of the tribunal below, and formally adjourned the further consideration of that decision. The decision I now take is the decision that the tribunal should have taken after receiving the evidence for which the appeal was adjourned.
2. It is appropriate to repeat the relevant parts of that interim decision and complete the process I started with that decision. Paragraphs 3 to 11 repeat the equivalent paragraphs from my interim decision with brief additional explanations. Paragraphs 12 and following complete the account.
3. H is a Polish and European citizen who has had several periods of work in the United Kingdom. In 2006 he claimed the Polish equivalent of incapacity benefit from ZUS, the Polish authority. Following standard European Union procedure, ZUS sent a form E204 (Investigation of a claim for an invalidity pension) to the Pension Service of the British Department for Work and Pensions ("DWP") to enquire about H's British contribution record. The form requires the receiving authority to provide the sending authority with full details about the claimant and his or her benefit and payments records. ZUS also forwarded a form E207 completed by H. On this H stated several periods when he had worked in Britain between 1984 and 2004.
4. DWP checked with the National Insurance Contribution Office of Her Majesty's Revenue and Customs ("HMRC"). It responded to ZUS with a standard form E205 identifying two periods of National Insurance contribution payment. And on 7 02 2007 a formal decision was taken that H was not entitled to incapacity benefit from and including 1 05 2004. This was because he had not paid sufficient contributions to qualify. This was sent to H.
5. A prolonged correspondence followed between H and the DWP Pension Service during which H produced documentary evidence of various trips to, and periods of employment in, Britain. Some of this was referred to HMRC. HMRC identified and allocated further contributions to H's record. HMRC therefore sent a new form E205 to ZUS. This was not enough to change the decision that H was not entitled to British incapacity benefit. And it led to further representations and evidence being submitted by H.
6. H made it clear he was still not satisfied, so the matter was referred to a tribunal. The tribunal decided the matter on the papers. It confirmed the decision of 7 02 2007 that H was not entitled to British incapacity benefit.
7. H appealed, with my leave, against this decision. His grounds for doing so were that the tribunal had either omitted or misunderstood the relevant European Union law. I granted permission because in my view the tribunal was considering the wrong decision. H's dispute was with the contribution record on the forms E205, not the British benefit. The form E205 provided details of his British contribution record to the Polish authorities. I invited full submissions from both parties on those issues. I intend no discourtesy to either party in summarising briefly my conclusions from several rounds of correspondence between the parties and of submissions to the Commissioner (and now the Upper Tribunal) in stating these conclusions.

The decision on British incapacity benefit

8. The British authorities treated the receipt of the form E204 both as an enquiry about the contributions made an as a claim to the relevant British benefit. This led to the decision that H was not entitled to the benefit and separately to the replies to ZUS. In my view that was the proper course of action by the Secretary of State. It complies with the obligation on the British authorities under regulation 36(4) of EC Regulation 574/72 read with the appropriate powers in the Social Security (Claims and Payments) Regulations. Regulation 574/72 of 21 March 1972 makes detailed provision laying down the procedure for implementing Regulation 1408/71. It has been amended many times since first made. In brief, they require a state authority receiving a request such as that in the E204 to consider if the claimant has any entitlement under the national legislation of that authority. The Secretary of State did that and concluded that there was no British entitlement.
9. To that extent, the actions of the Pension Service and tribunal were correct in law if, but only if, the National Insurance contribution record produced for H by HMRC was correct. That, however, was the real issue about which H was appealing.

The information provided on the forms E205

10. H's central objection was to the contribution periods recorded on the forms E205, not to the British decision. Without going into the details, H objected on differing grounds of fact and European Union law to the failure of HMRC and/or DWP to treat him as a contributor during a number of identified periods when he alleged that was working in Britain.
11. His objections also gave rise to technical issues about the proper procedures under British law to comply with the requirements of EC Regulation 572/74. These include a requirement under regulation 48 of that regulation that proper time be given to claimants to appeal against specific decisions referred to an authority in another member state under the procedures. I invited the submissions of both parties on these points.
12. The core issue outstanding at that stage was whether the appellant was entitled to be awarded or credited with contributions equivalent to one year's contributions. This arose because the United Kingdom authorities are not required for European Union law purposes to award any pro rata benefit to an appellant in respect of periods of insurance of those periods amount to less than one year. This is provided in regulation 48(1) of EC Regulation 1408/71. This provides:

"Notwithstanding article 46(2), the institution of a member States shall not be required to award benefits in respect of periods complete under the legislation it administers, which are taken into account when the risk materialises, if:

- the duration of the said periods does not amount to one year, and

- taking only those periods into consideration, no right to benefit is acquired by virtue of the provisions of that legislation.

13. Applying that to this appeal, the central question was therefore whether the appellant should be regarded as having completed a period of insurance of one year under British legislation. That was the decision taken by the Secretary of State against which the appellant appealed. It was not however decided by the tribunal.
14. Having considered the submissions, I decided that the proper course was that HMRC should be asked to take a formal decision about H's contribution record in the light of all the evidence available. Social entitlement tribunals have no jurisdiction over the question whether contributions are recorded accurately as having been paid by a contributor. That is exclusively a matter for HMRC and, in the event of a continuing dispute, the First tier Tribunal Tax Chamber. This is so notwithstanding that it falls to the Secretary of State to inform the Polish authorities of the appellant's position. That happens because the Polish authorities need to know both of any entitlement of an appellant to benefit in the United Kingdom as well as of any relevant contribution record. The Secretary of State was therefore directed to refer this matter to HMRC for decision, and the appeal adjourned by my interim decision while that was done.
15. I was later informed by the Secretary of State that HMRC had taken a decision about the outstanding contribution questions raised by the appellant, and that the appellant had been notified of the decision. The decision was that there were no grounds to alter the previous decision about the length of the periods of insurance completed by the appellant. These were in total less than one year. HMRC gave the appellant full details of the view it took about his claims in a letter dated 15 08 2008. That gave the appellant eight weeks in which to reply objecting to the decision. I am told that no reply was received to that letter. I directed that the appellant be served with the relevant papers again and they were served to his last known address on 25 02 2009. The tribunal was notified of a new address in response to this, and the papers were sent again to the new address on 20 03 2009. No reply has been received to that letter.
16. I am now satisfied that HMRC has considered and taken a decision on the matters raised by the appellant, and that the appellant has not exercised his right to appeal against that decision within the time allowed. That decision is now final. That decision did not accept that the appellant was entitled to be given or credited with any further contributions to those awarded and credited by the previous decision by HMRC.
17. It follows from the above that I find that the decision of the Secretary of State that the appellant did not complete any period of contributions under the legislation of the United Kingdom totalling one year was correct. The record of contributions sent to the Polish authorities is therefore correct.
18. I set aside the decision of the first tier tribunal. However, no purpose is served by returning the matter to the first tier tribunal for a final decision. It is therefore expedient that I now make a final decision on the appeal. That confirms the decision of the Secretary of State. I therefore dismiss the appeal to the first tier tribunal.

David Williams

Judge of the Upper Tribunal

18 05 2009

[Signed on the original on the date stated]