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Secretary of State for Work and Pensions v LT [2012] UKUT 282 (AAC) (19 July 2012)
DLA, AA, MA: general
other

IN THE UPPER TRIBUNAL Case No. CDLA/0735/2009

ADMINISTRATIVE APPEALS CHAMBER

Before Judges Patrick Howell QC, Elisabeth A Jupp and Robin C A White

Attendances:

For the Appellant: Mr Thomas de la Mare

For the Respondent Mr Richard Drabble QC

Decision: The decision of the tribunal of 21 August 2008 is erroneous in law and we set it aside.

It is appropriate for us to make the decision which the tribunal should have made.

Our substituted decision: The respondent remained entitled to receive the care component of disability living allowance following her permanent move to Spain on 5 November 2002. The decision of 8 January 2007 under appeal, purporting to supersede and terminate her previous indefinite award from 6 November 2002, is set aside as ineffective.

REASONS FOR DECISION

A. Introduction

1. For ease of comprehension, we will refer in this decision to the appellant as “the Secretary of State” and to the respondent as “the claimant.”

2. There was an oral hearing before a three-judge panel on 2 April 2012. The Secretary of State was represented by Mr de la Mare, and the claimant by Mr Drabble QC. We are grateful to both of them for their submissions and assistance to us in determining this appeal.

B. The issue in this appeal

3. The issue arising in this appeal is whether the claimant could continue to receive the care component of disability living allowance (DLA) when she moved permanently from the United Kingdom to Spain in November 2002 having regard to the provisions of Council Regulation (EC) 1408/71 of 14 June 1971 (as amended) on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community.

C. The background

4. The claimant, who was born on 17 April 1952, was in receipt of the lowest rate of the care component of DLA on an open-ended award from 26 July 1993 on the grounds that she could not prepare a cooked main meal for herself.

5. It subsequently came to the attention of the Secretary of State that the claimant had moved to Spain on 5 November 2002.

6. On 8 January 2007, the Secretary of State superseded the award of DLA determining that there was no entitlement to receipt of the benefit from 6 November 2002.

7. The claimant appealed that decision on a number of grounds.

8. The appeal came before a First-tier Tribunal for determination on 21 August 2008. That tribunal allowed the appeal applying Article 10 of Regulation 1408/71. A full statement of reasons was provided.

9. The Secretary of State appealed against the tribunal’s decision on the grounds that Article 10 of Regulation 1408/71 did not assist the claimant in retaining any right to payment of DLA following her move to Spain.

10. The appeal comes before us with the permission of a Judge of the First-tier Tribunal.

11. The claimant died on 10 May 2011, and the claimant’s husband has been made her appointee by decision of the Secretary of State dated 2 August 2011 for the purposes of proceeding with the present appeal in place of his deceased wife.

D. Some common ground

12. It is common ground that the First-tier tribunal was correct in holding that the claimant had no further entitlement under the United Kingdom domestic law provisions alone from 6 November 2002, and the only question was whether the residence conditions that prevented this were themselves overridden by her rights as a citizen of the Union under Regulation 1408/71. The First-tier tribunal held that she continued to be entitled to her care component despite leaving the United Kingdom by virtue of Article 10 of Regulation 1408/71, which overrides residence conditions of that kind as regards “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.”

13. Both parties were agreed that this decision must be set aside as based on a misdirection, since the benefit at issue in this case is not within any of the categories to which Article 10 applies. For the purposes of Regulation 1408/71, the care component of DLA has been held by the Court of Justice of the European Union to constitute a cash sickness benefit whose exportability is governed by the separate provisions of Chapter 1 of Title III of the Regulation. Both parties accepted that this has been clearly established by the case-law of the Court of Justice.

The facts on which this appeal should proceed

14. We accept that the appeal should proceed on the basis of a set of facts, most of which have been found by the First-tier Tribunal. Those facts are as follows.

15. The claimant, who was born on 17 April 1952, was a United Kingdom national. She was in receipt of the lowest rate of the care component of DLA on an open-ended award from 26 July 1993 on the grounds that she could not prepare a cooked main meal for herself.

16. On 5 November 2002, the claimant moved permanently to Spain.

17. The claimant’s national insurance contributions record indicated that, prior to 1975, she was insured from 21 July 1967 to 5 April 1975. Thereafter the record is as follows:

Years 1975/76 to 1983/84: paid Class 1 NICs

Year 1984/85: 38 NIC credits, Class 1 NICs

Year 1985/86: 25 NIC credits

Years 1986/87 to 1989/90: blank record of NICs

Year 1990/91: 5 NIC credits

Year 1991/92: 53 NIC credits

Year 1992/93: 7 NIC credits

Years 1993/94 to date blank record of NICs

18. Invalid Care Allowance was in payment from 4 March 1991 to 31 May 1992, which accounts for the national insurance credits for this period.

19. The claimant undertook no employment or self-employment in Spain.

20. The claimant died on 10 May 2011.

E. National law

21. We do not need to set out in much detail the national provisions on the award of DLA and its payment. The key provision of national law relevant to this appeal concerns the effect of the departure abroad of a person in receipt of DLA.

22. The relevant part of Regulation 2 of the Social Security (Disability Living Allowance) Regulations 1991 provides:

Conditions as to residence and presence in Great Britain

2.—(1) Subject to the following provisions of this regulation, the prescribed conditions for the purposes of section 71(6) of the Act 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; … .

(2) For the purpose 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 was 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 sub-paragraph, he should be treated as though he were present in Great Britain.

… .

23. It is agreed that the determination of this appeal should proceed on the basis of the finding of fact made by the First-tier Tribunal that the claimant left Great Britain on 5 November 2002 on a permanent and not any temporary basis, the savings provisions in Regulation 2(2) can have no application to the claimant. It follows that any continuing entitlement to payment of the care component of DLA can only be grounded on the application of rules of European Union Law.

F. European Union Law

24. We refer throughout this decision to European Union Law even though the period in issue includes a period prior to the entry into force of the Treaty of Lisbon which might render it more appropriate to refer at times to European Community Law.

25. The parties in this appeal have taken very disparate views on the proper interpretation of the provisions of Regulation 1408/71.

26. Regulation 1408/71 concerns the co-ordination of differing national social security systems in order to avoid social security rules operating as a barrier to the free movement of workers. Over time its terms have been extended beyond workers (employed persons) to include self-employed persons, students, and civil servants. The latter extension is only relevant in those Member States which have separate social security systems for civil servants.

27. Article 1 of Regulation 1408/71 contains a long list of terms defined in the Regulation.

28. The terms “employed person” and “self-employed person” are defined in Article 1(a). Only the definitions in Article 1(a)(i) to (ii) have any relevance to this case:

employed person and self-employed person mean respectively:

(i) any person who is insured, compulsorily or on an optional continued basis, for one or more of the contingencies covered by the branches of a social security scheme for employed or self-employed persons or by a special scheme for civil servants;

(ii) any person who is compulsorily insured for one or more of the contingencies covered by the branches of social security dealt with in this Regulation, under a social security dealt with in this Regulation, under a social security scheme for all residents or for the whole working population, if such person:

— can be identified as an employed or self-employed person by virtue of the manner in which such scheme is administered or financed, or

— failing such criteria, is insured for some other contingency specified in Annex I under a scheme for employed or self-employed persons, or under a scheme referred to in (iii), either compulsorily or on an optional continued basis, or where no such scheme exists in the Member State concerned, complies with the definition given in Annex I.

29. The words “under a social security dealt with in this Regulation” are otiose, and appear to have been introduced as a typographical error when Council Regulation (EC) No 118/97, [1997] OJ L28/1, was adopted. That was an amending regulation which included in its Annex an updated version of Regulation 1408/71 and introduced these words. We have ignored them. We observe that when the Court of Justice cited the definitions of these terms in Case C-516/09 Borger, Judgment of 10 March 2011, it simply omitted the words from the definition.

30. Annex I spells out the persons included for each Member State for which there is an entry in Annex I in relation to the definitions provided for in Article 1(a)(ii). These statements are required because of the many different ways in which the Member States organise their social security systems. The entry for the United Kingdom reads:

Any person who is an “employed earner” or a “self-employed earner” within the meaning of the legislation of Great Britain or of the legislation of Northern Ireland shall be regarded respectively as an employed person or a self-employed person within the meaning of Article 1(a)(ii) of the Regulation. …..

31. Article 1(q) of Regulation 1408/71 defines “the competent State” as the “Member State in whose territory the competent institution is situated.” “Competent institution” is defined in Article 1(o) as:

(i) the institution with which person concerned is insured at the time of the application for benefit; or

(ii) the institution from which the person concerned is entitled or would be entitled to benefits if he or a member of members of his family were resident in the territory of the Member State in which the institution is situated; or

(iii) the institution designated by the competent authority of the Member State concerned; or

(iv) in the case of a scheme relating to an employer’s liability in respect of the benefits set out in Article 4(1), either the employer or the insurer involved or, in default thereof, a body or authority designated by the competent authority of the Member State concerned;

32. “Competent authority” under Article 1(l) means “in respect of each Member State, the Minister, Ministers or other equivalent authority responsible for social security schemes throughout or in any part of the territory of the State in question.”

33. Article 1(r) defines periods of insurance as follows:

periods of insurance means periods of contribution or periods of employment or self-employment as defined or recognized as periods of insurance by the legislation under which they were completed or considered as completed, and all periods treated as such, where they are regarded by the said legislation as equivalent to periods of insurance … ;

34. Note also that “residence” means “habitual residence”, while “stay” means “temporary residence.”

35. Article 2 of Regulation 1408/71 entitled “Persons covered” provides, so far as relevant to this appeal:

1. This Regulation shall apply to employed and self-employed persons and to students who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States … .

36. Article 3 of Regulation 1408/71 prohibits discrimination on grounds of nationality between nationals affected by the terms of the Regulation, subject to its special provisions.

37. Article 4 of Regulation 1408/71 spells out the matters covered. It is common ground between the parties that the care component of DLA is a cash sickness benefit falling within Article 4(1)(a): see in particular Case C-299/05 Commission v European Parliament and Council, [2007] ECR I-8730. We accept as entirely consistent with the European authorities that the care component of DLA is a cash sickness benefit falling within the provisions of Chapter 1 of Title III of Regulation 1408/71.

38. Title II of Regulation 1408/71 contains provisions for determining the legislation applicable to any given claim for a benefit falling within the material scope of the Regulation. For any given claim, the legislation of a single Member State only will apply.

39. There are two provisions in Article 13(2) salient to this appeal:

(a) a person employed in the territory of one Member State shall be subject to the legislation of that State even if he resides in the territory of another Member State or if the registered office or place of business of the undertaking or individual employing him is situated in the territory of another Member State;

…

(f) a person to whom the legislation of a Member State ceases to be applicable, without the legislation of another Member State becoming applicable to him in accordance with one of the rules laid down in the foregoing subparagraphs or in accordance with one of the exceptions or special provisions laid down in Articles 14 to 17 shall be subject to the legislation of the Member State in whose territory he resides in accordance with the provisions of that legislation alone.

It is common ground that none of the exceptions or special provisions of Title II applied to the claimant.

40. The primary rule is that the applicable legislation is that of the Member State in which a person works. The other rules are subsidiary to that primary rule. Article 13(2)(f) was inserted to alleviate concerns by some Member States that a Member State in which a person last worked would, where the person concerned undertook no further work, remain the competent State forever thereafter regardless of the Member State of residence of the person concerned. The effect would be that the burden of funding all future awards of benefit would fall on the Member State in which the person last worked. The application of Article 13(2)(f) avoids that consequence

41. Article 10b of Council Regulation (EEC) 574/72 of 21 March 1972 laying down the procedure for implementing Regulation 1408/71 provides:

Formalities pursuant to Article 13(2)(f) of the Regulation

The date and conditions on which the legislation of a Member State ceases to be applicable to a person referred to in Article 13(2)(f) of the Regulation shall be determined in accordance with that legislation. The institution designated by the competent authority of the Member State whose legislation becomes applicable to the person shall apply to the institution designated by the competent authority of the former Member State with a request to specify this date.

42. Article 89 and Annex VI of Regulation 1408/71 contain special procedures for applying the legislation of certain Member States. There are relevant entries relating to the United Kingdom in Annex VI as follows:

19. Subject to any conventions concluded with individual Member States, for the purpose of Article 13(2)(f) of the Regulation and Article 10b of the Implementing Regulation, United Kingdom legislation shall cease to apply at the end of the day on the latest of the following three days to any person previously subject to United Kingdom legislation as an employed or self-employed person:

(a) the day on which residence is transferred to the other Member State referred to in Article 13(2)(f);

(b) the day of cessation of the employment or self-employment, whether permanent or temporary, during which that person was subject to United Kingdom legislation;

(c) the last day of any period of receipt of United Kingdom sickness or maternity benefit (including benefits in kind for which the United Kingdom is the competent State) or unemployment benefit which

(i) began before the date of transfer of residence to another Member State or, if later,

(ii) immediately followed employment or self-employment in another Member State while that person was subject to United Kingdom legislation.

20. The fact that a person has become subject to the legislation of another Member State in accordance with Article 13(2)(f) of the Regulation, Article 10b of the Implementing Regulation and point 19 above, shall not prevent:

(a) the application to him by the United Kingdom as the competent State of the provisions relating to employed and self-employed persons of Title III, Chapter 1 and 2, Section 1 or Article 40(2) of the Regulation if he remains an employed or self-employed person for those purposes and was last so insured under the legislation of the United Kingdom;

(b) his treatment as an employed or self-employed person for the purposes of Chapter 7 and 8 of Title III of the Regulation or Article 10 or 10a of the Implementing Regulation, provided United Kingdom benefit under Chapter 1 of Title III is payable to him in accordance with paragraph (a).

43. Articles 18 to 36 of Regulation 1408/71 contain special provisions concerning sickness and maternity benefits, and constitute Chapter 1 of Title III of the Regulation. The application of Articles 19 and 22 is at the heart of this appeal.

44. Article 18 provides for the aggregation of periods of insurance, employment or residence in relation to sickness and maternity benefits.

45. Article 19, so far as relevant to this appeal, provides:

Residence in a State other than the competent State—General rules

1. An employed or self-employed person residing in the territory of a Member State other than the competent State, who satisfies the conditions of the legislation of the competent State for entitlement to benefits, taking account, where appropriate of the provisions of Article 18, shall receive in the State in which he is resident:

…

(b) cash benefits provided by the competent institution in accordance with the legislation which it administers. However, by agreement between the competent institution and the institution of the place of residence, such benefits may be provided by the latter institution on behalf of the former, in accordance with the legislation of the competent State.

46. Article 20 concerns frontier workers, while Article 21 concerns persons staying in or transferring their residence to the competent State. Neither applies to the circumstances with which we are presented in this appeal.

47. Article 22 is germane to this appeal; it applies both to cash sickness benefits and to sickness benefits in kind. So far as relevant to the claimant’s circumstances, the Article provides:

1. An employed or self-employed person who satisfies the conditions of the legislation of the competent State for entitlement to benefits, taking account where appropriate of the provisions of Article 18, and:

(a) …

(b) who, having become entitled to benefits chargeable to the competent institution, is authorised by that institution … to transfer his residence to the territory of another Member State,

shall be entitled:

(i) …

(ii) to cash benefits provided by the competent institution in accordance with the provisions of the legislation which it administers. … .

2. The authorisation required under paragraph 1(b) may be refused only if it is established that movement of the person concerned would be prejudicial to his state of health or the receipt of medical treatment.

48. None of the subsequent articles in Chapter I of Title III applies to the claimant’s circumstances.

G. The parties’ arguments in a nutshell

The Secretary of State’s arguments

49. Mr de la Mare argued that the claimant did not fall within the scope of Article 19 of Regulation 1408/71 because a particular meaning must be attached to the words “An employed or self-employed person” in the opening words of that provision, namely that at the material time (when she wanted to export the care component of DLA) the claimant had a contribution record on which a claim to United Kingdom contribution-based sickness benefit could be based. We refer to the words “employed person” and “self-employed person” at a number of points in this decision as “the defined terms”.

50. In so far as the decision of the Court of Appeal in HMRC v Ruas, [2010] EWCA Civ 291, determined that the defined terms had a uniform meaning throughout Regulation 1408/71, it was wrongly decided.

51. Mr de la Mare acknowledged that the Ruas decision is binding upon us but suggested that it might be distinguished in that the facts in Ruas involved child benefit rather than sickness benefits, and that the claimant was residing in the United Kingdom and claiming child benefit for children in Portugal.

52. However, Mr de la Mare fairly noted that the terms of the decision of the Court of Appeal could be read as applying to the interpretation of the defined terms in all parts of the Regulation. He argued that, if we so concluded, we should make a reference to the Court of Justice seeking advice on whether the defined terms in Article 19 of Regulation 1408/71 included within their ambit a person who had been in employment, but did not at the material time have a contribution record on which a claim to a contribution-based sickness benefit could be grounded.

53. In the alternative, Mr de la Mare argued that there was no entitlement to a care component of DLA from 6 November 2002, since the operation of Article 13(2)(f) of Regulation 1408/71 as interpreted through provisions in Annex VI meant that the United Kingdom ceased to be the competent State from the end of the day on which the claimant left the United Kingdom.

The claimant’s arguments

54. Mr Drabble QC argued that the decision in Ruas was correct and that the claimant fell within the terms of Article 19 of Regulation 1408/71, and was prima facie entitled to export sickness benefits acquired in the United Kingdom on her move to Spain.

55. Article 13(2)(f) applied to the claimant, but her entitlement was preserved by Point 20 in Annex VI.

56. If that is wrong, then, applying conclusions in the Opinion of the Advocate General in Case C-275/96 Kuusijärvi, [1997] ECR I-3419, the rules on exporting sickness benefits were not defeated by the application of Article 13(2)(f). Article 22 of Regulation 1408/71 governed the claimant’s circumstances. There were no grounds in the evidence before the Upper Tribunal which would justify refusal of authorisation of the claimant to move to Spain as required by that provision. Accordingly, the claimant remained entitled to receive the care component of DLA following her move to Spain.

H. The definitions of “employed person” and “self-employed person” and their significance

57. Article 2 of Regulation 1408/71 determines which persons are within the personal scope of the Regulation.

58. The definitions of “employed person” and “self-employed person” in various Articles of Regulation 1408/71 are at the heart of the Secretary of State’s arguments.

59. It is common ground between the parties that the claimant was within the personal scope of the Regulation as set out in Article 2(1). That is, in our view, plainly right on the words of Article 2(1). But Mr de la Mare argued that is just the first step; a claimant must then go on to meet the specific requirements of Article 19 which require the claimant to show that at the material time she satisfied “the conditions for ‘insurance’ under the United Kingdom scheme for sickness benefits as a matter of national law.” Mr Drabble argued that the claimant was at the material time insured against the risk of old age and this was sufficient to give her the status of an “employed person” for the purposes of both Article 2 and Article 19.

60. The terms “employed person” and “self-employed person” are defined in Article 1(a), and elaborated in Annex I (see paragraphs 28-30 above). Having regard to those provisions, and in relation to the United Kingdom an “employed person” and a “self-employed person” are persons defined as employed or self-employed earners for the purposes of the system of national insurance contributions within the United Kingdom.

61. In Ruas the Court of Appeal considered in detail the proper interpretation of the defined terms in the context of a claim made for child benefit by a Portuguese national in the United Kingdom in respect of those of his children who remained in Portugal. His entitlement rested on the proper meaning and effect of Article 73 of the Regulation.

62. Both Mr de la Mare and Mr Drabble took us through the Ruas case in some detail, including the authorities from the Court of Justice referred to in the judgment of the Court of Appeal. We do not consider it necessary to rehearse all those points in detail here, since we are bound by that decision and find the reasoning of the Court of Appeal compelling. We also note that the Supreme Court on 28 June 2010 dismissed an application by Her Majesty’s Revenue and Customs for permission to appeal against this decision.

63. After consideration of the case-law of the Court of Justice, the Court of Appeal concluded, in paragraph 57, that the defined terms could not mean different things in relation to different articles in which the defined terms are used, although the extent of their application may depend upon the particular context. The Court of Appeal, referring to Case C-85/86 Martínez Sala, [1998] ECR I-2691, went on in the same paragraph:

The ECJ plainly did not require, for the purposes of Mrs Sala’s entitlement as an employed person within limb (ii), that she should be in current employment or that there should be a link between the benefit she claimed and her previous employment. That conclusion was the result of the jurisprudence, accepted by the ECJ, that it was sufficient that Mrs Sala was insured against only one risk mentioned in the Regulation; in her case, for example, compulsory retirement pension insurance which had nothing to do with the benefit she was claiming.

64. Paragraph 62 of the judgment of the Court of Appeal provides:

I do not consider that the Commissioners’ case is advanced by reference to other parts of the Regulation, such as the different rights expressly conferred under Title III, Chapter I, on employed or self-employed persons, on the one hand, and unemployed persons on the other hand. The fact that express distinctions are made in the Regulation for particular categories of claimant in the case of particular categories of benefits does not help establish that “employed person” in Article 73 means something other than its defined meaning in Article 1(a).

65. Any conceivable lingering doubt about the general application of the principle enunciated in the Martínez Sala case was definitively resolved in the judgment of the Grand Chamber in Case C-543/03 Dodl and Oberhollenzer, [2005] ECR I-5065, where the Grand Chamber ruled:

30. Accordingly a person has the status of an ‘employed person’ within the meaning of Regulation No 1408/71 where he is covered, even if only in respect of a single risk, on a compulsory or optional basis, by a general or special social security scheme mentioned in Article 1(a) of that regulation, irrespective of the existence of an employment relationship (Martínez Sala, cited above, paragraph 36, and Kuusijärvi, cited above, paragraph 21).

31. Thus, as the Advocate General pointed out in paragraph 12 of his Opinion, in the light of the case-law of the Court, it is therefore not the status of the employment which determines whether or not a person continues to fall within the scope ratione personae of Regulation No 1408/71, but the fact that he or she is covered against risks under a social security scheme mentioned in Article 1(a) of the regulation.

66. Our view of the authorities is further supported by paragraphs 26-31 of the judgment of the Court of Justice of 10 March 2011 in Case C-516/09 Borger.

67. Thus in effect the authorities appear to establish that an “employed person” or a “self-employed person” for the purposes of (and throughout) the Regulation is someone who has at some point in the past paid national insurance contributions (or is to be treated as having paid such contributions as a result of the rules of aggregation of periods of contribution, insurance or residence under the Regulation) and remains covered for at least one of the risks listed in Article 4(1).

68. Mr de la Mare did not argue that, if we so held, there was any escape from the conclusion that the claimant was within the single meaning of “employed person” merely by virtue of having, as she did, a past, although incomplete, record of national insurance contributions giving her a contingent entitlement to a reduced retirement pension. He accepted that this made her a “person who is insured” (for old age benefit) under the general definition in Article 1 even at a time when no current contributory period of insurance (as defined in Article 1(r)) was still continuing. Although it is possible to identify passages in the Court of Justice authorities that might be read as suggesting, or at least consistent with, a more restricted meaning of “is insured” as referring to a person in a current period of contributory or credited insurance (for example, Martínez Sala, paragraphs 36-38, cf A-G La Pergola ar paragraph 12, pp I-2698-9), this was not a point relied on by Mr de la Mare and in the circumstances we are content to decide the appeal on the basis on which it is argued.

69. We can find no grounds for distinguishing the circumstances before us from those before the Court of Appeal in the Ruas case, which is binding on us. We have no doubts that the decision correctly establishes that the meaning of the defined terms must be the same wherever they are used without qualification in the Regulation. It is, however, important to appreciate, as the Court of Appeal noted in paragraph 57, that the extent of the application of the defined terms depends upon the particular context in which they are used. However, although the general position set out in paragraph 68 is intended to ensure that those who move employment and residence within the European Union should not be denied the protection of benefits, some of us are uneasy that it must of necessity also be applied to these particular circumstances, where the claimant and her husband had definitively ceased all occupational activity some considerable time ago, but were not yet of pensionable age, and did not fall into any other category within the terms defined in the Regulation.

70. Our conclusion is that the claimant in our case was an “employed person” on the application of the definition contained in Article 1(a)(ii), first indent, and that the definition of “employed person” has the same meaning wherever that term is used without qualification throughout Regulation 1408/71.

I. The special provisions relating to sickness benefits

71. The conclusion we have reached would seem to defeat Mr de la Mare’s argument that Article 19 of Regulation 1408/71 does not apply to the claimant, but that issue requires consideration of the scheme set out in Regulation 1408/71 for cash sickness benefits.

72. Three paragraphs of the Preamble to Regulation 1408/71 assist in understanding its special provisions in relation to sickness benefits:

Whereas the provisions for coordination must guarantee that workers moving within the Community and their dependants and their survivors retain the rights and the advantages acquired or in the course of being acquired;

…

Whereas in the field of sickness and maternity benefits, it is necessary to guarantee the protection of persons living or staying in a Member State other than the competent Member State;

Whereas the specific position of pension claimants and pensioners and the members of their families calls for the provisions governing the sickness insurance to be adapted to their situation;

… .

73. Article 18 of Regulation 1408/71 applies the principle of the aggregation of periods of insurance, employment or residence to sickness and maternity benefits.

74. In Case 150/82 Coppola, [1983] ECR 43, the Court of Justice ruled as follows:

10. [The definition of competent institution] must be applied within the framework of Article 18(1), in the light of the general rule contained in Article 13 of Regulation No 1408/71, with regard to determination of the applicable legislation. Article 13(1) establishes the principle that “A worker to whom this regulation applies shall be subject to the legislation of a single Member State only”. Article 13(2)(a) provides that “a worker employed in the territory of one Member State shall be subject to the legislation of the State even if he resides in the territory of another Member State”.

11. By virtue of that provision, and in the absence of contrary provisions referring to the particular benefit in question, only the legislation of the State in whose territory the worker is employed is therefore applicable. Although that provision does not expressly mention the case of a worker who is not employed when he needs sickness benefit, it is appropriate to interpret it as meaning that, where necessary, it refers to the legislation of the State in whose territory the worker was last employed.

12. It follows from the fact that, by virtue of Article 13(2)(a), the legislation of only one Member State is applicable, that the institution or institutions of a single Member State in whose territory the worker is or was last employed, must be considered competent for the purpose of the application of Article 18(1). That conclusion is moreover confirmed by Article 16 of Regulation 574/72 … regarding the application of the provisions of Regulation No 1408/71 relating to sickness, and more particularly Article 18 of Regulation No 1408./71. By providing that a certified statement specifying the insurance completed previously under the legislation of other Member States must be issued by the institution or institutions of the Member State to whose legislation the worker was previously subject and must be submitted to the competent institution, the provision is manifestly based on the principle whereby the institution or institutions of the Member State in whose territory the worker is or was last employed are alone competent to aggregate insurance periods.

75. Articles 19 to 22a of Regulation 1408/71 contemplate a number of different situations, and deal with issues relating to the payment and receipt of sickness and maternity benefits. These provisions were drafted at a time when the concept of cash sickness benefits related to a risk against which a person was insured and where the cash benefits were essentially income-replacement benefits. The view that these provisions deal with particular situations is reinforced by the provisions relating to the implementation of Articles 18 and 19 of Regulation 1408/71 in Articles 16 and 18 of Regulation 574/72 laying down the procedure for implementing the provisions of Regulation 1408/71. In particular Article 18 of Regulation 574/72 on the implementation of Article 19(1)(b) of Regulation 1408/71 deals with the supervision of a recipient of cash sickness benefits in the Member State of residence where that is different from the competent Member State.

76. Article 19 contemplates a situation in which a person is working in one Member State but residing in a different Member State. The Member State in which the person is working is the competent State in respect of claims for sickness or maternity benefits. Unless provision was made for payment of those benefits in the Member State of residence in appropriate cases, there could be hardship for a claimant. Accordingly Article 19 makes provision for the payment of cash sickness benefits to a claimant in the Member State of residence.

77. Since Article 19 refers to satisfying the conditions of the legislation of the competent State for entitlement to benefits, there may be a temporal aspect to any claim. For example, in the United Kingdom where a person claims a contribution-based sickness benefit, that person need not be actually in work immediately prior to the date of claim but they must have the required contribution record in the designated prior years of contribution in order to qualify for the claimed benefit.

78. Article 20 of the Regulation contemplates a situation in which the claimant is a frontier worker: that is, in broad terms, a person who commutes on a daily or weekly basis from one Member State in which he lives to another Member State in which he works. Provision is made for frontier workers to receive cash sickness benefits in the Member State in which they live under the legislation of the Member State in which they work.

79. Article 21 of the Regulation contemplates a situation in which a claimant stays (is temporarily present) in the Member State in which he or she works, or transfers his or her residence (moves permanently) to the Member State in which he or she works. Such a claimant remains entitled to receive cash sickness benefits from the competent State.

80. Article 22 of the Regulation contemplates a situation in which a person has already become entitled to cash sickness benefits in a Member State, but who then for a variety of reasons moves to another Member State. The circumstances include in paragraph 1(b) a situation in which the person is authorised to transfer residence to the territory of another Member State. There are narrowly defined limits on a Member State’s ability to refuse authorisation which are set out in Article 22(2). However, the requirement of authorisation reflects the need for some form of supervision by the competent State.

81. Article 22a was inserted to ensure, among other things, the entitlement of students to benefits in kind. Article 22b was inserted to ensure the coverage of civil servants where there is a special scheme for such persons, but was subsequently revoked.

82. Both parties argued the case on the basis that the provision in issue in the claimant’s circumstances was Article 19, although Mr Drabble also relied on Article 22.

83. The application of the rules in Articles 19 to 22 becomes rather more complex now that a progressively wider range of benefits under the legislation of the Member States has been characterised as cash sickness benefits for the purpose of Chapter 1 of Title III. For example, in Case C-160/96, Molenaar, [1988] ECR I-880, and in Case C-215/99, Jauch, [2001] ECR I-1993, care allowances were held to come within Article 4(1)(a). In Case C-299/05, Commission v European Parliament and Council, [2007] ECR I-8730, the Swedish disability allowance, and the United Kingdom attendance allowance, care allowance, and the care component of DLA were held to be sickness benefits for the purposes of Article 4(1)(a).

84. Our conclusion is that the provisions of Articles 19, 20, 21 and 22 of Regulation 1408/71 are contemplating a number of different situations and that there is no overlap between them. Where a person falls squarely within the provisions of one of these articles, that excludes the operation of other articles which might be argued to have more general application. Although at first glance, Article 19 might appear to have wide application, on closer scrutiny it covers only the situation of a person who works in one Member State and lives in a different Member State.

85. We conclude that the claimant did not come within the situation contemplated in Article 19. At no time had she worked in one Member State while residing in another. At the material time, she was resident in the competent State. This view is supported by paragraph 22 of the judgment of a Grand Chamber in Case C-145/03 Keller, [2005] ECR I-2529 (a case which concerned sickness benefits in kind, but the principles are the same):

42. Before answering the questions, it should be observed that, although the order for reference refers to the institution of the place of residence to designate the German social security institution and the doctors authorised by that institution, it is common ground that at the material time Ms Keller was resident in the competent Member State, namely Spain. As the defendants in the main proceedings point out, Ms Keller's presence in Germany at that time thus corresponds not to the case provided for in Article 19 of Regulation No 1408/71 but to that mentioned in Article 22 of that regulation. It follows that there is no need to answer the request for a preliminary ruling in so far as it relates to the interpretation of Article 19(1)(a) of Regulation No 1408/71.

86. However, the circumstances contemplated by Article 22 of the Regulation did apply to the claimant. She was an employed person for the purposes of the Regulation; she had become entitled to cash sickness benefits under the legislation of the United Kingdom; and she had transferred her residence to another Member State.

87. If both Article 19 and Article 22 can apply to the same situation, there is an odd result. Article 19 would permit export of the cash sickness benefits without authorisation, whereas Article 22 only permits their export subject to authorisation. That result cannot have been intended. The distinction makes sense in the context of Article 19 applying to a situation in which the person is working in the competent Member State, but residing in another Member State. Here the sickness benefits are exportable without qualification. However, where a person is in the competent Member State and wishes to move elsewhere, authorisation is required in order to ensure that there is no adverse impact on the health of the claimant or his or her continuing treatment.

88. What then is the significance of the authorisation requirement in the case before us? Article 22(2) limits to a very considerable extent the circumstances in which authorisation can be refused where cash sickness benefits are in issue. There is no evidence before us suggesting that the transfer of residence was prejudicial either to the health of the claimant (in so far as there is any evidence, it is that it was beneficial for her health) or to the receipt of medical treatment.

89. This is a convenient point at which to address the arguments put by Mr de la Mare that Article 22 was not factually engaged in the circumstances before us, since the claimant had never sought any authorisation to move from the United Kingdom to Spain. Our view is that if the circumstances contemplated in Article 22 applied to the claimant, her ability to rely on that provision cannot be defeated in circumstances in which, had authorisation been sought, the United Kingdom could not have refused it. It would be otherwise if it could be shown that grounds to refuse the authorisation existed. However, even then, we would be applying the provisions of the article rather than accepting that they were not engaged by the factual situation with which we are faced.

90. In fairness to Mr de la Mare’s carefully put arguments that the scheme for sickness benefits collapses on itself unless a different view is taken of the defined terms in Article 19 (and it would follow in Article 22), we indicate why we conclude that there is no merit in those arguments.

91. In essence, Mr de la Mare argued that, if the defined terms in Article 19 referred to a person who had been insured in the past for one of the contingencies covered by the Regulation, then references elsewhere in Chapter I of Title III were rendered redundant. In our view, the use of qualified or other terms elsewhere in the Chapter on sickness and maternity benefits reflects specific issues concerning a particular class of employed or self-employed persons.

92. Article 25(1) refers to “an unemployed person who was formerly employed or self-employed” and deals specifically with entitlement for a period during which unemployment benefit would otherwise be payable. Article 25(2) refers to “a totally unemployed person who was formerly employed” and dovetails with specific provisions relating to unemployment benefits in Article 71. The provisions here mirror for sickness benefits provisions in Chapter 6 on unemployment benefits and lay down a special regime for a certain class of employed or self-employed persons.

93. Articles 27 and 28 refer to “pensioners”. Here again there is a specific subset of rules applicable, in broad terms, to those whose working lives have come to an end through the award of a pension either on normal retirement or on earlier retirement as a result of ill-health, accident or injury. The normal rules are in some way modified in their cases. In particular, sickness benefits become payable in the manner prescribed by the provisions. This view is supported by the paragraph in the Preamble cited above, and by the judgment of the Court of Justice in Case 182/78 Pierik, [1979] ECR 1977.

94. It follows from the reasoning set out above that we do not consider that there is any question which needs to be referred to the Court of Justice on the interpretation of the defined terms in Articles 19 and 22 of the Regulation.

95. Our conclusion is that the claimant fell within the circumstances contemplated by Article 22 of Regulation 1408/71 and that there were no grounds on which the Secretary of State could have refused authorisation for a transfer of the claimant’s residence to Spain. The claimant was accordingly entitled to export the care component of her DLA unless some other provision of the Regulation precluded this.

J. The application of Article 13(2)(f) to the claimant’s circumstances

96. Mr de la Mare’s alternative argument was that the claimant ceased to be entitled to payment of United Kingdom sickness benefits because the United Kingdom ceased to be the competent State when the claimant moved permanently to Spain.

97. On the accepted facts, the claimant moved permanently to Spain on 5 November 2002. She undertook no employment or self-employment in Spain, and so Article 13(2)(f) prima facie applied to her.

98. There was considerable discussion of Points 19 and 20 in Annex VI which set out the circumstances in which the United Kingdom will regard the legislation of the United Kingdom as ceasing, or not ceasing, to apply on the operation of Article 13(2)(f).

99. What is the status of Annex VI? Article 89 makes provision for Annex VI; it is a part of the Regulation which has been adopted by the European legislature. Mr de la Mare has referred us to the Explanatory Memorandum to the United Kingdom’s entries in Annex VI. What is the status of the Explanatory Memorandum? We conclude that it might produce useful guidance in the event of there being some ambiguity in the text of the United Kingdom entries, but it cannot fix in time the scope and meaning of the provisions of Regulation 1408/71, of which Annex VI is a part.

100. Point 19 spells out the date on which the United Kingdom will regard itself as ceasing to be the competent State on the operation of Article 13(2)(f), while Point 20 preserves the status of the United Kingdom as the competent State for certain purposes. We have not found these provisions easy to understand and apply in the context of the wider range of benefits now treated as sickness benefits under the regime laid down by Regulation 1408/71.

101. Point 19 provides that Article 13(2)(f) applies at the end of the day on the latest of one of three days set out in Point 19. Point 19(a) is the default position if Points 19(b) and (c) do not apply. Point 19(b) clearly has no application.

102. Does Point 19(c) assist the claimant? Mr de la Mare said that the benefits to which reference is made exclude the care component of DLA, since it was not regarded as a cash sickness benefit when Annex VI was concluded, and is still not regarded as a sickness benefit under the national classification of benefits.

103. Mr Drabble said that, if a benefit is now a cash sickness benefit under the classification required by Regulation 1408/71, it must be included within the term “United Kingdom sickness benefit” The terminology used in Point 19 is that of the system of classification used in the Regulation.

104. If Mr Drabble was right, then the claimant would fall within Point 19(c)(i). She was in receipt of a United Kingdom cash sickness benefit (the care component of DLA) as classified by Regulation 1408/71 which began before the date of transfer of residence to Spain. Since the award was an open-ended one, the effect of the application of Point 19(c)(i) would be the cessation of the application of United Kingdom legislation only when the award of the care component of DLA was validly superseded to produce a nil entitlement.

105. However, it is not necessary to decide whether this is the effect of Point 19(c)(i) since in our view Point 20(a) applied to preserve the application of United Kingdom legislation notwithstanding Article 13(2)(f) even if it was Point 19(a) which governed the claimant’s position. We note that the purpose of Point 20 is purported to be elaborated in the Explanatory Memorandum in relation to the Annex. At the time, the United Kingdom took the view that its purpose was to preserve the status of the United Kingdom as the competent State for the purposes of a new claim for one of the benefits in the specified chapters where the claimant could still qualify for that benefit on the basis of past national insurance contributions.

106. Disability living allowance is a non-contributory benefit, but the effect of the case-law of the Court of Justice to which we have referred earlier in this decision—and which has been accepted by both parties—is that the care component constitutes a cash sickness benefit falling within the material scope of Chapter 1 of Title III of Regulation 1408/71.

107. It follows that in our judgment the circumstances of the appellant at the material time brought her within the scope of Point 20(a). The claimant was an employed person who was last insured under the legislation of the United Kingdom. It is the words in Annex VI which have to be interpreted and their effect cannot be limited by the Explanatory Memorandum in the manner for which Mr de la Mare contended. There is no ambiguity in the application of the words to the circumstances presented by the claimant.

Our conclusion in the alternative on the application of Article 13(2)(f)

108. If we are wrong on the proper interpretation of Point 20(a), and if Point 19(a) applied to the claimant, there is an alternative route which produces the same result.

109. Mr de la Mare said that Point 19(a) meant that Article 13(2)(f) brought an end to the claimant’s entitlement to the care component of DLA from 6 November 2002. Mr Drabble argued that, on the proper interpretation of Article 22 of Regulation 1408/71, the entitlement to DLA continued.

110. We have already concluded that the claimant was in a situation contemplated by Article 22 of Regulation 1408/71. The issue here is whether the application of Article 13(2)(f) (applying Point 19(a) of the United Kingdom entry in Annex VI) defeated the entitlement to export the care component of DLA under that provision.

111. Mr Drabble pointed out that in Case C-275/96 Kuusijärvi, [1997] ECR I-3419, the Advocate General explained that in circumstances analogous to those of the claimant, a benefit claimant would retain an existing entitlement to payment of a benefit falling within the scope of sickness and maternity benefits under Article 22 notwithstanding the operation of Article 13(2)(f).

112. The Kuusijärvi case concerned a Finnish national who had worked in Sweden for eleven months. She received unemployment benefit in Sweden when her employment ended, and subsequently became entitled to a child allowance and parental benefit in Sweden. She then moved to Finland with the consequence that the Swedish authorities ended her entitlement to the parental benefit.

113. In the course of proceedings challenging that decision, a reference was made to the Court of Justice. The Advocate General concluded that the operation of Article 13(2)(f) was not restricted to cases in which a person had definitively ceased all occupational activity. The Court agreed.

114. The Advocate General classified the benefits in issue as falling within Chapter I of Title III as maternity benefits, and noted, at paragraph 60 of his Opinion, that the operation of Article 13(2)(f) did not mean that Anna Kuusijärvi could not continue to receive the maternity benefits, since Article 22 preserved her entitlement.

115. The Advocate General explained:

64. The national court’s third question essentially asks whether the requirement in Article 22 that persons to whom it applies satisfy the conditions of national legislation means that, where that legislation includes among such conditions a requirement of residence on national territory, a recipient who moves to another Member State ceases to be entitled to payment of the benefit.

65. Article 22(1)(b) by its terms applies where a person entitled to sickness or maternity benefits returns to the Member State where he resides or transfers his residence to another Member State and ensures that in such circumstances the recipient retains his entitlement to the benefits in question. It is evident that if that entitlement could be defeated by a national residence requirement the provision would be entirely devoid of purpose, which can scarcely have been intended. Article 22 is moreover one of a series of provisions of the Regulation which seek to ensure that Member States may not in general refuse payment of social security benefits within the Regulation solely because the putative recipient resides in another Member State … . I accordingly conclude that the right to continued payments of benefits conferred by Article 22 cannot be defeated by a residence requirement imposed by national legislation as a condition of entitlement to such benefits.

116. The Court of Justice did not consider the interpretation of Article 22, since it concluded that the benefits in issue were family benefits governed by separate provisions of the Regulation.

117. In our case, the parties agreed that we were dealing with cash sickness benefits; and they were plainly right to do so. The claimant had transferred her residence from the United Kingdom to Spain. Article 22 does contain an authorisation procedure, but there is nothing in the evidence to indicate that the move was prejudicial to the state of health of the claimant; nor did the move have any adverse effect on the receipt of medical treatment. These are the only grounds on which the authorities in a Member State could refuse authorisation of the move under Article 22.

118. We conclude that the entitlement of the claimant to export the care component of her DLA under Article 22 was not defeated by the application of Article 13(2)(f) of the Regulation if Point 19(a) of the United Kingdom entry in Annex VI did apply to the claimant.