Upper Tribunal (Administrative Appeals Chamber)

DECISION OF THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

The decision of the Swansea appeal tribunal dated 28 September 2005 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 13 May 2005 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 6 February 1995 awarding the claimant the highest rate of the care component and the higher rate of the mobility component from and including 1 July 1995 falls to be superseded in relation to the mobility component with effect from 13 May 2005 on the ground of relevant change of circumstances on the claimant's ceasing to be present and ordinarily resident in Great Britain after 15 November 2004.

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/2002/2006 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 CDLA/2002/2006 made an application to the Upper Tribunal on 16 May 2011 for further questions to be referred to the ECJ and for there to be an oral hearing of the application. The representatives of the claimant in the present case have been kept informed of the proceedings of that application, but have taken no part in them. The decision on the application has unfortunately taken a very long time, for the reasons explained in paragraph 4 of the final decision in CDLA/2002/2006, a copy of which is to be attached to the present decision when sent to the claimant and his representative. The conclusion reached in giving the final decision in CDLA/2002/2006 was that no further questions are to be referred to the ECJ.

4. Accordingly, the rulings given by the ECJ in answer to the questions referred in the test cases must be implemented, with the inevitable 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 Disability Living Allowance Regulations in relation to the mobility component of DLA on the claimant’s ceasing to be present and ordinarily resident in Great Britain after 15 November 2004. 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 13 May 2005 could not take effect from any earlier date. The claimant’s appeal against the decision of 13 May 2005 in relation to the mobility component is therefore allowed only to the extent of making the decision effective to remove entitlement from 13 May 2005 instead of 15 November 2004. 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