Upper Tribunal (Administrative Appeals Chamber)

DECISION OF THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

The decision of the Sutton appeal tribunal dated 21 May 2004 having been set aside in my interim decision dated 2 July 2009 and the decision on the claimant’s appeal against the Secretary of State's decision dated 28 February 2002 having been re-made in relation to the care component of disability living allowance in that interim decision, the Upper Tribunal can now re-make that decision in relation to the mobility component. That decision is that the claimant's appeal is allowed to only a very limited extent in that respect. The decision dated 9 September 1992 awarding the claimant the lowest rate of the care component and the lower rate of the mobility component from and including 17 June 1992 falls to be superseded in relation to the mobility component with effect from 28 February 2002 on the ground of relevant change of circumstances on the claimant's ceasing to be present and ordinarily resident in Great Britain after 29 January 2002.

REASONS FOR DECISION

1. The background to this case was set out in my interim decision of 2 July 2009 and I do not need to repeat it here. Following that interim decision, questions were referred to the Court of Justice of the European Union (the ECJ) on 15 December 2009 in this and two associated cases (CDLA/496/2006 and CDLA/2106/2006). Below I call these the test cases. A copy of the reference, containing a full statement of my preliminary views on the issues and the full text of the questions, is already publicly available on the Upper Tribunal (AAC) website under the reference RB v Secretary of State for Work and Pensions [2009] UKUT 286 (AAC) (also searchable under the Upper Tribunal file numbers). Therefore I shall not repeat all that material here. The questions were in brief as to whether the mobility component of disability living allowance (DLA) was exportable to other Member States as a sickness benefit in the same way as the care component had been decided to be exportable in Commission of the European Communities v European Parliament and Council of the European Union, Case C-299/05, [2007] ECR I-8695 (or possibly as an invalidity benefit) or whether it was a special non-contributory benefit within article 10a of Council Regulation (EC) No 1408/71 and therefore not exportable. The first two questions were about the interpretation of Regulation No 1408/71. The third was whether there was any other principle of European Union law that might assist the claimants in the cases referred.

2. The rulings given by the ECJ on those questions on 5 May 2011 in Bartlett, Gonzalez Ramos and Taylor v Secretary of State for Work and Pensions (Case C-537/09) were as follows:

“1.      Article 4(2a) 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 (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 631/2004 of the European Parliament and of the Council of 31 March 2004, and of Regulation No 1408/71, in the latter version, as amended by Regulation (EC) No 647/2005 of the European Parliament and of the Council of 13 April 2005, must be interpreted as meaning that the mobility component of Disability Living Allowance constitutes a special non-contributory cash benefit within the meaning of that provision, referred to in Annex IIa to those regulations.

2.      Consideration of the third question has disclosed nothing capable of affecting the validity of Article 10a of Regulation No 1408/71 in either of the versions applicable in the main proceedings, inasmuch as that article allows the award of the mobility component of Disability Living Allowance to be made subject to conditions as to residence and presence in Great Britain.”

3. To implement those rulings would mean that the mobility component of DLA would have to be treated as non-exportable, being a special non-contributory benefit, so that Regulation No 1408/71 would not affect the normal operation of the residence and presence conditions in regulation 2 of the Social Security (Disability Living Allowance) Regulations 1991 in relation to the mobility component. However, the representatives of the claimant in the present case, Morrison Spowart solicitors, made an application to the Upper Tribunal on 16 May 2011 for further questions to be referred to the ECJ. Their observations, drafted by Simon Cox of counsel (who had appeared for the claimant in the present case throughout, including before the ECJ), argued, in summary, that, because the reasons given by the ECJ in Bartlett as to the severability of the mobility component from the rest of the benefit of DLA  and its treatment as a benefit within the Regulation were inadequate, to apply the ruling in an United Kingdom tribunal would violate the claimant’s fundamental rights under European Union law to an effective remedy and a fair trial and that the correctness of the ruling of the Fourth Chamber of the ECJ in Bartlett was called into question by a ruling of the Fifth Chamber also given on 5 May 2011 in European Commission v Federal Republic of Germany (Case C-206/10). Accordingly, it was said to be necessary for a further reference to be made to enable the ECJ to give adequate reasons (although Mr Cox added that if such a reference were made he would invite the ECJ to reverse its ruling on severability) and desirable for a reference to deal with the new consideration of the ruling in Case C-206/10.

4. I granted the requested oral hearing of that application, not wishing to conclude the case against the claimants in the three test cases without allowing the fullest possible discussion of the issues. Unfortunately, the hearing could not take place on the date initially fixed, because the continuation of Legal Services Commission exceptional funding to cover representation of the claimant at the hearing had not been confirmed. The hearing eventually took place on 8 September 2011. The claimant was represented by Mr Cox. The Secretary of State was represented by Tom Richards of counsel. I gave the claimant’s representatives time to consider whether they wished to make a further written submission on the relevance and effect in the present case of paragraphs 73 to 110 of the judgment of the ECJ on 21 July 2001 in Stewart v Secretary of State for Work and Pensions (Case C-503/09). They decided that they did wish to do so. The submission was received on 7 October 2011. The reply by Mr Richards on behalf of the Secretary of State was received on 5 December 2001, there having been an extension of time granted by a Registrar in the interim. Unfortunately there was then some delay in that reply making its way to me.

5. With all due respect to the learning and industry of counsel, and in particular Mr Cox in pursuing any possible basis for the reference of further questions to the ECJ, the reasons for finding the application to do so unsustainable can be given reasonably shortly, without specific discussion of many of the cases mentioned.

The general principles on the reference of further questions

6. It was not in dispute that the relevant general principles were set out by the ECJ in Wünsche Handelsgesellschaft GmbH v Federal Republic of Germany (Case 69/85) [1986] ECR 947, at paragraphs 13 to 16 of the judgment, although Mr Cox challenged their exhaustiveness in the circumstances of the present case:

“13. It follows that a judgment in which the Court gives a preliminary ruling on the interpretation or validity of an act of a Community institution conclusively determines a question or questions of Community law and is binding on the national court for the purposes of the decision to be given by it in the main proceedings.

 14. It should further be observed that Articles 38 to 41 of the Protocol on the Statute of the Court of Justice list exhaustively the exceptional review procedures available for challenging the authority of the Court’s judgments; however, since there are no parties to proceedings in which the Court gives judgment by way of a preliminary ruling, the aforesaid articles do not apply to such a judgment.

 15. None the less, the authority of a preliminary ruling does not preclude the national court to which it is addressed from properly taking the view that it is necessary to make a further reference to the Court of Justice before giving judgment in the main proceedings. According to well-established case-law, such a procedure may be justified when the national court encounters difficulties in understanding or applying the judgment, when it refers a fresh question of law to the Court, or again when it submits new considerations which might lead the Court to give a different answer to a question submitted earlier. However, it is not permissible to use the right to refer further questions to the Court as a means of contesting the validity of the judgment delivered previously, as this would call into question the allocation of jurisdiction as between national courts and the Court of Justice under Article 177 of the Treaty.

 16. It follows from the foregoing considerations that a preliminary ruling of the Court does not rank among the acts of Community institutions whose validity is open to review in proceedings under Article 177 and hence the Court has no jurisdiction to give a ruling on the first three questions raised.”

The inadequacy of the reasoning of the ECJ on severability

7. I am prepared to proceed on the assumption that the ECJ in Bartlett did, as submitted by Mr Cox for the claimant, give inadequate reasons in reaching the conclusions expressed in paragraphs 21 to 23 of its judgment:

“21. In that regard, it must be borne in mind that the Court held, in paragraph 69 of the judgment in Case C-299/05 Commission v Parliament and Council, that the mobility component of DLA is severable, with the result that that component alone could be included on the list in Annex IIa to Regulation No 1408/71, as amended, if the United Kingdom decided to create an allowance which concerned that component alone. It follows that the mobility component of DLA, by itself, constitutes a `benefit’ within the terms of Article 1(t) of Regulation No 1408/71, as amended.

 22. Such a finding must also be made, and for the same reasons, with regard to Regulation No 1408/71.

 23. Accordingly, it must be held that the mobility component of DLA can also constitute a `benefit’ within the terms of Article 1(t) of Regulation No 1408/71.”

Mr Cox pointed out that the ECJ said no more in paragraph 69 of Commission v Parliament and Council than was carefully stated in the passage above and submitted that it did not follow from the proposition that, if the United Kingdom had created a separate benefit with the same conditions of entitlement as those for the mobility component, it could properly have been included in the Annex IIa list that mobility component was already a “benefit” for the purposes of Regulation No 1408/71 both before and after the amendments of 5 May 2005 while it remained under the UK legislation only one component of a single benefit. It is not necessary and would not be seemly for me to express any conclusion on that submission. The claimant’s case fails on the assumption that it is correct.

8. It would not be seemly for me to express any conclusions on other elements of the ECJ’s reasoning. I made clear in the reference to the ECJ what in my view (if free of the authority of Commission v Parliament and Council) was the proper categorisation of mobility component, which was that its nature and purposes could not be distinguished in any substantial way from those of the care component, so that if the care component was to be regarded as a sickness benefit, so was the mobility component. Nothing in the judgment of the ECJ in Bartlett has changed my mind about that. In relation to what I saw as the crucial factor of whether the mobility component exhibits features of social assistance, paragraph 25 of the judgment in Bartlett simply repeats that the Court has stated (presumably in paragraph 67 of Commission v Parliament and Council) that DLA could be considered to include a social assistance component. The discussion in paragraphs 27 to 29 of the judgment then seems to be related to the new conditions in the definition of special non-contributory benefit in article 4(2a) as amended from 5 May 2005. The claimants in the test cases and the many others in similar situations may well now think that the ECJ, having dug itself into a hole by accepting an undebated position about the mobility component in Commission v Parliament and Council, has dealt with the issue by simply declining to recognise the existence of the hole at all. They would no doubt also question the accuracy and/or relevance of the conclusions that the amount of the mobility component awarded is determined by the costs connected with the mobility problems suffered by the beneficiary (and so closely linked to the social environment of that person) and that the benefit is awarded in the overwhelming majority of cases to people who cannot work because of their disability.

9. Mr Cox’s first line of attack was in my judgment flawed at an early stage. It entailed the proposition that a decision of the Upper Tribunal or of a First-tier Tribunal implementing the ruling in Bartlett as required by section 2 of the European Communities Act 1972 and the Wünsche principles would by definition be given with inadequate reasons because of the inadequacy of the reasons given by the ECJ for that ruling, and therefore in breach of fundamental rights to a fair trial etc. I cannot accept that proposition. In my judgment, there would be nothing inadequate in reasons that explain that a clear and unambiguous ruling that the mobility component is a special non-contributory benefit for the purposes of Regulation No 1408/71 has to be applied by the UK judicial authorities. Therefore, as was submitted for the Secretary of State, there is nothing in the judgment in Bartlett that would entail any breach of fundamental rights in its application by the UK judicial authorities and no possible basis for the reference of further questions as to the reasons for the ruling, even if such a reference were possible as a matter of law. Mr Cox was also caught in something of a bind. It was not at all clear to me what practical good it could have done the claimants in the test cases for the ECJ to supply better and more detailed reasons why the mobility component was to be treated as a special non-contributory benefit. However, by admitting that he would, if further questions were referred, be asking the ECJ to come to a different conclusion, Mr Cox was in effect challenging the validity of the ECJ’s ruling, as prohibited by Wünsche.

10. Mr Cox widened the scope of his challenge. In the written skeleton argument prepared for the hearing on 8 September 2011 he submitted that the question arose whether a national court that considers that the reasons given by the ECJ for its judgment are inadequate may refer to the ECJ the same question that had been referred before and that I should refer a question along those lines to the ECJ in the present case. He submitted that in view of the developments in relation to the role of fundamental rights within the European Union in the 25 years since the ruling in Wünsche, there was an arguable case that its prohibition on a challenge to the validity of a ruling should not now be regarded as extending to a challenge on the ground of the ruling having involved a breach of the fundamental principle of a fair trial, whether or not Article 6 of the European Convention on Human Rights (ECHR) applied in a formal sense to the ECJ.

11. Mr Cox drew attention to the decision of the ECJ in Kaba v Secretary of State for the Home Department, Case C-466/00, [2003] ECR I-2219. There, in a first reference to the ECJ from an immigration adjudicator, the Court declined to take into account, by re-opening the oral procedure, complaints by Mr Kaba that the Advocate General’s Opinion contained factual inaccuracies. After receipt of the ruling, the immigration adjudicator referred further questions, having accepted Mr Kaba’s submission that the ECJ had in its ruling been wrong in concluding that two categories of people affected by the immigration rules were not in a comparable situation. The first question was what mechanisms were available to the referring court and the parties to ensure compliance with the obligations under Article 6 of the ECHR. The second question was whether the answer given in the first reference would be the same on the basis of the national tribunal’s conclusion on comparable situation. The ECJ answered the second question by holding that the issue of whether the categories of person were in a comparable situation was a matter of Community law, so that the answer would not have been different if the ECJ took into consideration that the national law position was that the persons were not in a comparable situation. It then stated that it was unnecessary to reply to the first question, the national tribunal’s doubts in that respect having been addressed in the examination of the second question. Mr Cox drew attention to the fact that, although the ECJ specifically referred to the Wünsche principles in paragraph 39 of the judgment, it did not simply tell the immigration adjudicator to go away because she was contesting the validity of the first ruling, or, more formally, declare the further questions inadmissible. Instead, it answered question two on the substance of the issues that had been before the court earlier. Mr Cox also drew attention to what he described as the oddity that under the principles in CILFIT v Ministry of Health, Case 283/81, [1982] ECR 3415 national courts remain free to refer to the ECJ questions that have already been dealt with in previous rulings (see paragraph 15 of the judgment), so that under Wünsche the only court that cannot do that is the court that made the reference.

12. In reply, Mr Richards for the Secretary of State submitted that the circumstances of the present case cannot be distinguished from those of Wünsche and that there was nothing in the development of fundamental rights in the intervening years to suggest that any different outcome should follow. In Wünsche challenges were made on grounds including that the plaintiff’s arguments had not been assessed by the ECJ and that the ECJ had inquired into matters of fact that were for the national court to determine. The court ruled that it had no jurisdiction to rule on those questions, which, Mr Richards submitted, raised points of essentially the same kind as argued here.

13. I do not accept Mr Cox’s submissions. In relation to Kaba, it must be significant that the ECJ specifically mentioned the Wünsche principles without the slightest suggestion that it was departing from them in any way. Therefore, in my judgment the court must have been regarding the immigration adjudicator as raising a new consideration, ie the effect of the national tribunal expressing a conclusion about situations being comparable, that might have led to a different answer and therefore as not directly challenging the validity of the first ruling. Although the comparability of the situation had been a relevant factor in the first decision of the ECJ and in the submissions made on that reference, there had not at that stage been a conclusion expressed by the national tribunal. It was that which was the new consideration. Thus, Kaba is not an authority for any dilution of the fundamental principle that the national referring court cannot challenge the validity of the ruling given by the ECJ. I do not see why the acceptance of the centrality of fundamental rights within the European Union should alter that situation. Nor do I find it at all unusual or odd that in the very proceedings in which questions are referred for a preliminary ruling by the ECJ, the rulings should be conclusive as to their subject-matter in those proceedings, while in other proceedings national courts may remain free to call the correctness of the rulings into question. That seems no more than a familiar feature of the judicial process in general. I find no escape here from the bind that to ask the ECJ to come to a different conclusion about the categorisation of mobility component on the ground that it gave inadequate reasons for treating mobility component as a separate benefit is to contest the validity of its judgment.

Commission v Germany as a new consideration

14. This was a decision about German Länder benefits for the blind, the deaf and the disabled intended to compensate for the extra expenses connected with their disability, granted only to persons who were habitually resident in the Land concerned. The ECJ held, as was not contested by Germany as least for the latter part of the period in question, that the benefits were sickness benefits and not special non-contributory benefits. It was said in paragraphs 28 and 29 of the judgment that, since the benefits were intended to compensate, in the form of a flat-rate contribution, for the additional everyday expenditure resulting from the recipients’ disability and were granted objectively on the basis of a statutorily defined position and intended to improve the state of health and quality of life of persons reliant on care, they had the essential purpose of supplementing sickness insurance benefits. Mr Cox submitted that exactly the same could be said of the mobility component, if regarded as a separate benefit, and that there seemed to be no more basis in Commission v Germany for the conclusion that the intention was to aid persons reliant on care than there would be in relation to the mobility component of DLA. Therefore, he said, the existence of that other judgment, not in existence during the course of the proceedings in Bartlett and made by a different Chamber of the ECJ, was a new consideration that might have led to a different answer if it had been taken into account. Mr Richards naturally disagreed and submitted that a decision on a different benefit in a different country, with conditions of entitlement stated only in the most general terms, could not possibly have made any difference to the outcome in Bartlett.

15. I am prepared to accept that it is very difficult to see where any rational difference of substance lies between the benefits the subject of Commission v Germany and the mobility component of DLA. However, I have no doubt that the issuing of the ruling in that case does not constitute a new consideration justifying the reference of further questions to the ECJ, or the reference of the same questions again. That is because, as I attempted to show in the order for reference (in particular in paragraphs 25 to 28), there was a lack of coherence in the existing ECJ case-law as to the direction from which to approach the categorisation of benefits without all the classic characteristics of social security. In relation to the period prior to the amendment of Regulation No 1408/71 on 5 May 2005, I considered that the approach most consistent with principle was start by asking whether the benefit had the characteristics of social security, since a benefit could only be a special non-contributory benefit if provided under legislation other than that on social security benefits specified in article 4(1). In relation in particular to the period from the date of that amendment onwards, I stressed the importance to the definition of special non-contributory benefits, as shown in Commission v Parliament, of the presence of the features of social assistance in the form of financial need being a condition of entitlement (see paragraphs 31 to 34). Nevertheless, in the judgment in Bartlett, the ECJ approached the question of categorisation from the other end than I had suggested, by simply asking whether the mobility component of DLA, if a separate benefit, was in the nature of a special non-contributory benefit, and gave the presence or otherwise of features of social assistance no express consideration at all. Thus, the judgment in Commission v Germany added nothing of significance to the existing authorities for starting at the opposite end, which did not deter the ECJ in Bartlett, and could by no stretch of the imagination be regarded as resolving any of the incoherence in the pre-existing case-law. It did not constitute a new consideration that might have led the court to give a different answer.

16. Neither did the decision of the ECJ on 30 June 2011 in da Silva Martins v Bank Betriebskrankenkasse – Pflegekasse, Case C-388/09. The judgment contains what seems to me a most unusual statement of preliminary observations (in paragraphs 37 to 48) on the incoherence of the case-law relating to benefits protecting against the risk of reliance on care, stemming from the absence of that specific risk from the list in article 4(1) of Regulation No 1408/71 and the need to shoehorn those benefits into the provisions on sickness benefits although they are not sickness benefits stricto sensu. That is evidence, I think, of some judicial dissatisfaction with where the incremental process of case-law has currently ended up, but again cannot by any stretch of the imagination be regarded as pointing to any particular way out.

Stewart v Secretary of State for Work and Pensions as a new consideration

17. The main issue in Stewart v Secretary of State for Work and Pensions, Case C-503/09 (21 July 2011) was whether “incapacity benefit in youth” was properly to be characterised for the purposes of Regulation No 1408/71 as a sickness benefit or as an invalidity benefit. As noted in paragraph 67 of the judgment, that benefit was not listed in any version of Annex IIa to the Regulation and so could not possibly be a special non-contributory benefit subject to the regime in article 10a. The ECJ held that incapacity benefit in youth was an invalidity benefit and that article 10(1) of the Regulation therefore prohibited the UK from making not only the retention of entitlement but also the acquisition of entitlement subject to any residence test, as in the condition of entitlement of being ordinarily resident in Great Britain. However, the ECJ also considered the conditions of entitlement of being present in Great Britain and having been present for at least 26 weeks in the previous 52 weeks. The ECJ held that those conditions were not necessarily residence conditions prohibited by article 10(1), but were subject to the principle that the claimant, as a citizen of the European Union, should not be deterred from availing herself of the opportunities offered by her right under article 21(1) of the Treaty on the Functioning of the European Union (TFEU) to move to Member States other than her state of origin. The presence and past presence test were by their very nature likely to deter persons like the claimant from exercising their right to freedom of movement and residence and, although the objectives of establishing a genuine link between such a claimant and the UK and preserving the financial balance of the social security system were in principle legitimate objectives capable of justifying those restrictions, the tests went beyond what was necessary to attain the objectives pursued. The conditions of presence on the date of claim and of past presence for a specific period were not necessarily representative of the real and effective degree of connection between such claimants with the UK.

18. When I offered Mr Cox the opportunity of making a submission on Stewart, I had in mind the faint possibility that it could be said that, since the UK could arguably not be prevented by the existence of article 10a of Regulation No 1408/71 from amending its legislation so as not to remove entitlement to the mobility component of DLA on a claimant’s becoming ordinarily resident in another Member State (see paragraph 75 of the judgment in da Silva Martins), it had to be asked whether the unamended legislation was likely to deter claimants from exercising their right to freedom of movement and residence within the European Union and, if so, whether it could nevertheless be justified. In taking up the opportunity to make a submission, Mr Cox (rightly, I think) did not seek to rely on any such argument. Instead, he put forward a sophisticated argument that Stewart raised issues about the correctness of Bartlett by, if I have understood it correctly, throwing into doubt the application of the conclusion in paragraph 38 of the latter judgment that the grant of benefits closely linked with the social environment may legitimately be made subject to a condition of residence in the state of the competent institution. Thus, it was submitted, the article 10a regime, being a derogation from the general principle on rights of free movement, should be construed strictly. Either the criteria for identifying a special non-contributory benefit under article 4(2a) wrongly allowed in benefits that were not sufficiently closely linked to the characteristic social environment of a state or the interpretation and application of the criteria to the mobility component might have produced a different outcome if the consideration in Stewart had been taken into account.

19. I agree with Mr Richards for the Secretary of State that those arguments seek to read a great deal more into the judgment in Stewart than is permissible. The mere identification in paragraph 67 of the judgment of the article 10a regime as an exception to the article 10(1) prohibition of residence conditions did not cast any doubt on the validity of the article 10a regime or on the criteria for identifying the benefits within that regime. The court was simply not concerned with that, as incapacity benefit in youth could not possibly have been a special non-contributory benefit. Then the discussion in paragraphs 71 to 109 and the application of the general principles of freedom of movement was in a significantly different context, one in which Regulation No 1408/71 was silent. Whatever view the claimants in the test cases might take of the merits of the arguments, the judgment in Stewart could have made no difference to the conclusions of the ECJ in Bartlett, first that article 10a was not invalid in general (as established by Snares v Adjudication Officer, Case C-20/96, [1997] ECR I-6057, R(DLA) 5/99 and confirmed in paragraph 81 of Habelt and others v Deutsche Rentenversicherung Bund, Cases C-396/06, C-419/05 and C-450/05, [2007] ECR I-11895) and, second was not invalid in its particular application to the mobility component of DLA.

20. For similar reasons, the faint possibility mentioned in paragraph 18 above is in reality non-existent. It is in my judgment crucial to the discussion in paragraphs 71 to 109 of Stewart that it was dealing with provisions, the presence and past presence conditions of entitlement for incapacity benefit in youth, about which Regulation No 1408/71 provided no co-ordination rule. The discussion was about those provisions in so far as they did not constitute residence conditions which were co-ordinated for invalidity benefit by article 10(1). Regulation No 1408/71 being silent, there was nothing to stand in the way of the general principles of freedom of movement. The position is quite different where Regulation No 1408/71 does supply a co-ordination rule, as it has for special non-contributory benefits in the article 10a regime. The judgment in Stewart therefore throws no doubt on the conclusions in paragraphs 38 to 42 of the judgment in Bartlett that the establishment of that regime and its application to the mobility component of DLA was not incompatible with the claimant’s rights under article 21 of the TFEU, or with rights under articles 45 and 48.

21. Accordingly, the existence of the ruling in Stewart supplies no justification for reference of further questions or of the same questions again in the present case.

Conclusion

22. Accordingly, as Mr Cox accepted, the rulings given by the ECJ in answer to the questions referred in the test cases must be implemented, with the consequence in the present case as set out at the beginning of this decision. There was nothing in Regulation No 1408/71 or any other principle of European Union law to prevent the normal operation of the residence and presence conditions in regulation 2 of the Social Security (Disability Living Allowance) Regulations 1991 in relation to the mobility component of DLA on the claimant’s ceasing to be present and ordinarily resident in Great Britain after 29 January 2002. The effect of those provisions was that he did not satisfy the conditions of entitlement to the mobility component after that date. The change of circumstances was a ground for superseding the previous decision under regulation 6(2)(a)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, but because of the provisions of regulation 7(2)(c) as in force at the time (as

explained in the interim decision) the supersession decision made on 28 February 2002 could not take effect from any earlier date. The claimant’s appeal against the decision of 28 February 2002 in relation to the mobility component is therefore allowed only to the extent of making the decision effective to remove entitlement from 28 February 2002 instead of 30 January 2002. The appeal has already been allowed and the decision re-made in relation to the care component in the interim decision of 2 July 2009.

(Signed on original): J Mesher

  Judge of the Upper Tribunal

Date: 20 January 2012