Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL                                                  Case No.  CDLA/2877/2013

ADMINISTRATIVE APPEALS CHAMBER

 

Before Judge Robin C A White

 

Decision: The decision of the tribunal of 9 January 2013 is erroneous in law. I set it aside. I re-make the decision of the tribunal.

My substituted decisions:

The appellant is not entitled, on his application dated 14 February 2011, to reinstatement of his entitlement to the care component of a disability living allowance under an award dated 14 January 1998 awarding him the lowest rate of the care component from 21 May 1997 for an indefinite period. This is because the United Kingdom is not the competent State for the payment of cash sickness benefits.

The appellant is not entitled to the care component of a disability living allowance on a claim made on 14 February 2011 under the special arrangements put in place following the decisions of the Court of Justice in Case C-299/05 Commission v European Parliament and Council [2007] ECR I-8695, and Case C-503/09 Lucy Stewart [2011] ECR I-6497. This is because the United Kingdom is not the competent State for the payment of cash sickness benefits.

 

REASONS FOR DECISION

Background and context 

1.     The appellant, who was born on 11 May 1934 and is an Irish national, was awarded the higher rate of the mobility component and the lowest rate of the care component of a disability living allowance from and including 21 May 1997 for an indefinite period. The letter notifying the award of disability living allowance is dated 14 January 1998.

2.     The appellant moved to Ireland in July 2005, because his brother was terminally ill. He has lived in Ireland ever since.  

3.     The appellant had lived in England from 1953 to 1979, and from 1985 to 2005. He had lived in Ireland from 1979 to 1985.

4.     The appellant’s national insurance record show that he entered the United Kingdom national insurance system on 12 February 1953 and paid contributions through work until 1979 when he moved to Ireland. He worked for the same company in Ireland until he returned to the United Kingdom in 1985. He is said by the Secretary of State to have paid national insurance contributions through work in the United Kingdom until he reached pensionable age in 1994.[1]

5.     It seems that the decision awarding disability living allowance was superseded on 20 September 2006. The terms of that decision are not in the documents I have, and the Secretary of State has been unable to provide any further information about this decision.

6.     There is a decision notice in the documents I have from an appeal tribunal dated 4 October 2007 in the following terms:

Appeal refused.

The Appellant is not entitled to any mobility or care component of Disability Living Allowance from 13/07/05 to 11/04/06 because he was not ordinarily resident in the United Kingdom at that time.

7.     The Secretary of State is unable to provide any explanation of the significance of the dates in this decision. Nor is he able to provide any further information about the nature of this appeal. But he is able to confirm that there is no record of any subsequent award of a disability living allowance.

8.     The appellant is in receipt of retirement pensions from both the United Kingdom and from Ireland.

9.     On 26 January 2011 the Disability and Carers Service wrote to the appellant advising that it might be possible to reinstate the care component of the disability living allowance in certain circumstances, and inviting the appellant to return an enquiry form.

10.  On 14 February 2011 the Department received the completed enquiry form. The appellant reported that:

·           he had moved to Ireland on 21 July 2005;

·           his entitlement to a disability living allowance had started on 14 January 1998;

·           the date of the decision that he was not entitled to benefit following his move abroad was 13 July 2005;

·           neither he nor his wife had worked since moving to Ireland;

·           that neither he nor his wife had received any benefits from an EEA state other than the United Kingdom.[2]

11.  On 5 May 2011 the appellant filed a claim pack in relation to disability living allowance.

12.  There is a file note dated 12 May 2011 of a telephone conversation with the appellant in which he confirmed that he “has worked in Ireland and is receiving a pension from there.”

13.  On 14 June 2011 a decision maker decided that the appellant was not entitled to a disability living allowance from 14 February 2011 because the conditions relating to residence in Great Britain are not satisfied. The grounds for the decision are noted as follows:

In receipt of foreign pension. UK not competent.

14.  On 24 June 2011 the appellant appealed against this decision on the grounds that the Department had “made a wrong decision under European Law when you stopped my disability.”

15.  There then appears to have been some delay. On 25 June 2012 the appellant competed a “GSL Enquiry Form”.[3] The appellant gave details of the periods he had spent in Great Britain and Ireland from 1953. He again said he was not getting a retirement pension, invalidity benefit or bereavement from Ireland. He said he was not getting any other benefit from Ireland.

16.  The appellant returned a further disability living allowance claim pack treated as made on 27 May 2012.

17.  There is a file note dated 3 October 2012 of a telephone conversation which was concerned with the inconsistencies in statements about the receipt of a retirement pension in Ireland. The appellant is recorded as confirming that “he is still in receipt of a retirement pension from Ireland, albeit a small one.”

18.  The decision of 14 June 2011 was reconsidered on 3 October 2012, but was not changed.

19.  On 24 October 2012 a judge of the First-tier tribunal issued a direction notice to the Secretary of State in the following terms:

1. The Secretary of State is asked to explain if possible the decision at page 20. Was there entitlement to DLA after 11.04.2006? If so, when and how and at what rates was this awarded? What was the decision made by the Secretary of State on 20.09.2006 which was presumably under appeal to the tribunal at Reading.

2. Can the Secretary of State please supply details of the National Insurance Contributions paid by or credited to the account of the Appellant?

3. Is the Appellant entitled to a cash sickness benefit similar to DLA or AA from the Republic of Ireland?

4. Can the Secretary of State explain in greater detail why Ireland is said to be the competent state for the payment of sickness benefit for the purposes of Article 13 of 1408/71 and also Article 11 of 883/2004. In particular does point 20(a) of Annex VI of 1408/71 assist the claimant?

5. Which regulation should apply: 1408/71 or 883/2004?

6. Is this being treated as a new claim for DLA or AA or reinstatement of DLA?

20.  The Secretary of State responded on 5 November 2012. Some of the responses were helpful; others less so:

·           No further information was available beyond the documents in the papers in relation to the decision dated 20 September 2006 and the tribunal decision dated 4 October 2007.

·           Details of the national insurance contributions were provided; these are set out above.

·           In response to question 3, the Secretary of State said: “Ireland have a Disability Allowance which is the equivalent of our Disability Living Allowance, however this does not affect out Disability Living Allowance. The Irish authorities take into account what we are paying and then just pay the difference.”

·           In response to questions 4 and 5, the Secretary of State said: “Ireland is the competent state to pay benefits under EC Reg 1408/71 from 18/10/2007 and EC Reg 883/04 from 01/05/2010. This is because [the appellant] is receiving a contributions based benefit from his current state of residence.

·           In response to the sixth question, the Secretary of State said that reinstatement was not possible “due to the competency issue”. The matter was then considered as a fresh claim and disallowed for the same reasons.

21.  The Secretary of State then draws attention to extracts from the decision of the Upper Tribunal in Secretary of State for Work and Pensions v LT [2012] UKUT 282 (AAC) (referred to in the papers for this appeal as CDLA/735/2009).

22.  The Secretary of State’s further appeal to the Court of Appeal in this case was dismissed by the Court of Appeal on 23 October 2013 and permission to appeal to the Supreme Court was refused: Secretary of State for Work and Pensions v Linda Tolley (deceased) [2013] EWCA Civ 1471. The Secretary of State is seeking permission to appeal from the Supreme Court. However, that case is of limited assistance, since the appellant in that case was not of pensionable age with the consequence that different provisions of Regulation 1408/71 applied to her.

23.  The appeal came before the tribunal on 9 January 2013 for a hearing on the papers in the absence of the parties. Given the complexity of the issues raised, the provision of a representative of the Secretary of State would have assisted the tribunal in the determination of this appeal.

24.  The outcome of the appeal was that the decision of the Secretary of State was upheld. A statement of reasons was subsequently provided.

25.  The appeal now comes before me with the permission of a judge of the Upper Tribunal.

The grounds of appeal

26.  The appellant’s grounds of appeal are essentially that the decision is wrong, and that European law is on his side. He raises some points about his wife’s health which are not relevant to his entitlement to the care component of a disability living allowance.

27.  In giving permission to appeal, the judge indicated that the following arguable issues arose:

·           whether the correct regulation had been applied;

·           whether the proper legislative base for Ireland being the competent State had been set out in the tribunal’s reasons;

·           whether proper consideration had been given to which State was responsible for benefits in kind;

·           whether Article 70 of Regulation 883/2004 should have been considered.

Did the tribunal err in law?

28.  The tribunal’s decision is essentially that the matter was governed by Regulation 1408/71 and that the consequence of the appellant’s receipt of a retirement pension from Ireland was that the United Kingdom was not the competent State for the payment of the cash sickness benefits. No specific provisions of the regulation are cited.

The Secretary of State’s submission to me

29.  The Secretary of State concedes that the decision of the tribunal is erroneous in law, because the reasons for their decision are inadequate.

30.  The Secretary of State notes that applications for reinstatement of awards of the care component of a disability living allowance are technically “applications for supersession on the grounds of error of law in the light of the decision of the Court of Justice in Case C-299/05.”[4] Where supersession is possible it would take effect from the date of application under s.10(5) of the Social Security Act 1998.

31.  The Secretary of State gives two reasons why supersession is not possible:

(a)   When the application for reinstatement was made on 14 February 2011, the appellant was 76. Section 75(1) of the Social Security Contributions and Benefits Act 1992 precludes a payment of a disability living allowance to a person over the age of 65 unless they had an award immediately prior to attaining that age.

(b)   It is not possible for the Secretary of State to supersede a decision of a tribunal on grounds of law.

32.  The Secretary of State argues that the application for reinstatement should be treated as an application for an attendance allowance having regard to the appellant’s age in February 2011.

33.  The Secretary of State then argues that the effect of Article 11 of Regulation 883/2004 when read with Articles 23, 24 and 29 is that Ireland is, and has been, the competent State for the purposes of sickness benefits with the result that there is no entitlement to either a disability living allowance or an attendance allowance. The only proviso is that it needs to be checked whether the appellant has full eligibility for healthcare in Ireland.

The claimant’s response

34.  The appellant has understandably not addressed any legal argument in his response, merely repeating his belief that he should be paid since his benefit was stopped for no reason.

My conclusion on whether the tribunal erred in law

35.  Plainly this appeal raised more complex issues than were addressed by the First-tier Tribunal. The tribunal’s findings and reasons are not adequate to explain the basis of the decision. That is an error of law and for this reason I set their decision aside.

36.  The remainder of this decision is my assessment of the appellant’s appeal.

The Upper Tribunal’s assessment

The status of the care and mobility components of disability living allowance under European Union law

37.  On 18 October 2007 the Court of Justice of the European Communities gave its judgment in Case C-299/05 Commission v European Parliament and Council [2007] ECR I-8695. The effect was this decision was that the care component of a disability living allowance is classified as a cash sickness benefit which could be exported to another Member State in certain circumstances.

38.  On 5 May 2011 the Court of Justice in Case C-537/09 Bartlett, Ramos and Taylor v Secretary of State for Work and Pensions [2011] ECR I‑3417 ruled that the mobility component of a disability living allowance is a special non-contributory benefit whose payment can be limited to those in the territory of the United Kingdom.

39.  The effect of these decisions is that the care and mobility components of a disability living allowance are under European Union law classified differently. The care component is a cash sickness benefit which may, in certain circumstances, be exported, whereas the mobility component is a special non-contributory benefit which is not exportable. Accordingly, I need only concern myself with entitlement to the care component.

The United Kingdom’s response to the judgment in Case C-299/05

40.  The fallout from the judgment of 18 October 2007 was that some reconsideration was called for where payment of the care component had been stopped when a recipient moved to another Member State.

41.  A further issue arose as to the date from which any such reconsideration should take effect. The judgment of 18 October 2007 relied heavily on the judgment of the Court of Justice dated 8 March 2001 in Case C-215/99 Jauch [2001] ECR I-1901.

42.  The position of the Secretary of State in relation to a decision on the export of a disability living allowance on or after 8 March 2001 but before 18 October 2007 is summarised in Volume 2 of the Decision Maker’s Guide at Appendix 1 in the Volume 2 Amendment dated 25 June 2013 as follows:

• the person is within the personal scope of relevant EU legislation and

• the UK continues to be the competent state for payment of a sickness benefit and

• the normal domestic conditions of entitlement are met except that the claimant no longer has to

1. be ordinarily resident in GB or

2. be present in GB or

3. meet the past presence test on an ongoing basis.

17. Where a decision on export of AA, DLA (Care) or CA was made on or after 8.3.01 and before 18.10.07, and that decision is subsequently shown to be in error of law in light of ECJ judgement C299/05, that decision can be superseded¹ with effect from the date of request for supersession.² Where, in similar circumstances, the DM is unable to supersede the incorrect disallowance (for instance where the original disallowance was confirmed by a FtT) a claim to AA, DLA (Care) or CA can be treated as made on the date of request for supersession or reinstatement. Provided the conditions in paragraph 16 above are met, the claimant will have satisfied the past presence test when they left GB and the claimant is not then required to further satisfy this condition at the date of request for re-instatement.

43.  I accept that statement as correct in law, subject to what is said below.

44.  There have been some further amendments to both primary and secondary legislation made by the Social Security (Disability Living Allowance, Attendance Allowance and Carer’s Allowance) (Miscellaneous Amendments) Regulations 2011 (SI 2011 No 2426) (“the 2011 Regulations”). These entered into force on 31 October 2011. They are germane to this appeal since the date of reconsideration of the decision of 14 June 2011 was 3 October 2012. These amendments were required, in part, in order to address issues which had arisen as a result of the judgment of the Court of Justice in Case C-503/09 Lucy Stewart [2011] ECR I-6497. I am also assuming that the Department sent out the “GSL Enquiry” in response to these developments.

45.  It may assist the appellant if I quote from the explanatory memorandum to the 2011 Regulations referred to in the previous paragraph before diving into the intricacies of the law. The explanatory memorandum says that the purpose of the amending regulations is as follows:

2.1 This instrument enables claimant of Attendance Allowance (AA), Carer’s Allowance (CA) and Disability Living Allowance (DLA) (care component) (referred to as “disability benefits”), whose claims were disallowed following their move to another European Economic Area (EEA) State or Switzerland prior to 18th October 2007, to be paid benefit from the first benefit week after that date.

2.2 This instrument also ensures that people moving within the EEA and Switzerland will only be entitled to the disability benefits if the UK (rather than another State) is responsible under EU legislation coordinating social security schemes for payment of this type of benefit.

46.  The amending regulations achieve this purpose by making the following amendments, as described in the explanatory note attached to the statutory instrument:

Regulation 2 amends the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (S.I.1999/991) so that where, as a result of the ECJ judgment, the Secretary of State supersedes the original decision to terminate entitlement to those benefits, this new supersession decision takes effect from the date of the ECJ judgment (allowing claimants to reclaim benefit from this date).

Regulation 3 amends the Social Security (Claims and Payments) Regulations 1987 (S.I.1987/1968) so that where there was an earlier award and the decision to terminate entitlement could not be superseded, a claim can be backdated to the date of that judgment, provided that the claimant has not already received an extra-statutory payment for the same period.

Regulation 4 amends the Social Security (Disability Living Allowance) Regulations 1991 (S.I.1991/2890) to ensure that the normal condition that new claims for disability living allowance are not payable to those aged 65 or over, is not applicable where a person who lost entitlement to the care component of that allowance on such a move or proposed move, reclaims that benefit following the ECJ judgment.

In addition, regulation 5 amends the Social Security Contributions and Benefits Act 1992 (c.4) to ensure that a person to whom either Regulation (EC) No 1408/71 or Regulation (EC) No 883/2004 applies shall only be entitled to an attendance allowance, a carer’s allowance or the care component of a disability living allowance when the United Kingdom (rather than another EEA Member State or Switzerland) is responsible under the EU Regulations for payment of sickness benefits to that person.

Regulation 5 refers to both Regulation (EC) No 1408/71 and Regulation (EC) No 883/2004 given that whilst Regulation (EC) No 883/2004 came into force on 1 May 2010 replacing Regulation (EC) No 1408/71, Regulation (EC) No 1408/71 remains in force for the purposes described in Article 90 of Regulation (EC) No 883/2004.

What this means for the appellant’s claim to have the care component reinstated    

47.  The appellant will only be entitled to have consideration given to the reinstatement of the care component of his disability living allowance if he is able to show that the United Kingdom continued to be the competent State for the payment of sickness benefits: section 72(7B) of the Social Security Contribution and Benefits. Act 1992.

48.  For the purposes of this appeal, it is plain that at all material times the appellant was a pensioner. He reached State pension age in the United Kingdom in 1999, and has at all material times been in receipt of a retirement pension from the United Kingdom and from Ireland.

49.  Despite the uncertainty about prior decisions on entitlement to a disability living allowance, I am proceeding on the basis that the appellant ceased to be paid a disability living allowance from 13 July 2005 and that there has been no subsequent award of a disability living allowance or attendance allowance to him. I am also proceeding on the basis that he has not received any extra-statutory payment for any relevant period.

50.  The key issue is accordingly whether the United Kingdom remained the competent State under the European regulations on the co-ordination of social security in respect of the payment of sickness benefits. If the United Kingdom did, then consideration will need to be given to the issue of reinstatement. If the United Kingdom did not, then the appellant’s entitlement to sickness benefits is, and has been, governed by the Irish social security system.

51.  There are two relevant European regulations. The first is Council Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community [1997] OJ L28/4 as amended (“Regulation 1408/71”). The second is Regulation (EC) No 883/2004 on the coordination of social security systems [2004] OJ L200/1 as amended (“Regulation 883/2004”). Regulation 883/2004 came into force on 1 May 2010 and replaced Regulation 1408/71, though for certain purposes (not relevant to this appeal) Regulation 1408/71 remained in force.

The position under Regulation 1408/71

52.  The position under Regulation 1408/71 needs to be considered because the appellant is seeking reinstatement of the care component of a disability living allowance for a period prior to the entry into force of Regulation 883/2004.

53.  A number of issues can be briefly addressed. The appellant is plainly a person within the personal scope of Regulation 1408/71 under Article 2. He has been an employed person in two Member States and has paid national insurance contributions in those Member States.

54.  The benefit in issue is plainly within the material scope of Regulation 1408/71, since the Court of Justice has indicated that it is classified as a cash sickness benefit falling within Article 4.

55.  Finally, when the appellant moved from the United Kingdom to Ireland in 2005 at the age of 71, he was plainly a pensioner, since he was in receipt of a State retirement pension from the United Kingdom. He was also in receipt of a retirement pension from Ireland.

56.  This means that Article 27 of Regulation 1408/71 applies to the appellant. Article 27 provides:

Pensions payable under the legislation of several States where there is a right to benefits in the country of residence

A pensioner who is entitled to draw pensions under the legislation of two or more Member States, of which one is that of the Member State in whose territory he resides, and who is entitled to benefits under the legislation of the latter Member State, taking account where appropriate of the provisions of Article 18 and Annex IV, shall, with the members of his family, receive such benefits from the institution of the place of residence and at the expense of that institution as though the person concerned were a pensioner whose pension was payable solely under the legislation of the latter Member State.

57.  The appellant has prostate cancer, as well as other medical conditions. In the various claim packs in the documents I have, the appellant refers to having his blood checked twice a year for the rest of his life, and to be under the care of a hospital urologist in Ireland. He cites his hospital record number. I am accordingly satisfied that the appellant receives sickness benefits in kind in Ireland. Responsibility for meeting the cost of these benefits rests with the competent institution in Ireland as defined in Article 1(o) of Regulation 1408/71.

58.  I am also advised by the Secretary of State that Ireland has a benefit corresponding to disability living allowance. I am therefore satisfied that the appellant is (and has been at all material times) eligible to apply for that benefit, though whether he would be entitled to it depends on the conditions for entitlement under the Irish scheme which may not be the same as the requirements in the United Kingdom.

59.  I will observe in passing that the Secretary of State has rightly noted that any current claim to benefit in the United Kingdom would have to be for attendance allowance having regard to the appellant’s age.[5] It may well be that the appellant’s age also affects the benefits for which he is currently eligible to apply in Ireland.

60.  My conclusion on this point is that the appellant is eligible to apply for cash sickness benefits under the Irish sickness insurance scheme. This arises at the material time under Article 27 of Regulation 1408/71. The appellant is entitled to draw pensions from two Member States of which one is the Member State in which he resides. He is within the Irish sickness insurance scheme and as a consequence he, and members of his family, shall receive benefits from the competent institution in Ireland as though he were a pensioner whose pension was payable solely under the legislation of Ireland.

61.  I have considered whether the appellant can derive any assistance from the United Kingdom provisions in Annex VI on the operation of Article 13(2)(f) of Regulation 1408/71. These provisions are discussed in some detail in JS v Secretary of State for Work and Pensions (DLA) [2012] AACR 7 (at paras 26-30), and were also considered in depth in Secretary of State for Work and Pensions v LT [2012] UKUT 282 (AAC) (at paras 96-107).

62.   I cannot see how these provisions could in the circumstances of this case operate to extend the competence of the United Kingdom for anything but a very short period. That does not address the appellant’s underlying grievance that he should have continued to receive the care component of a disability living allowance for some years following he move to Ireland.

63.  Since I have concluded that Ireland was the competent State following the appellant’s move to Ireland, he is not entitled to the reinstatement of the care component of his disability living allowance from the date of its cessation.

64.  I now need to consider whether the position is the same from 1 May 2010 under Regulation 883/2004.

The position under Regulation 883/2004

65.  The appellant is a person within the personal scope under Article 2 of Regulation 883/2004. He is a national of a Member State who is or has been subject to the legislation of one or more Member States.

66.  By virtue of Article 3, sickness benefits are within the material scope of Regulation 883/2004.

67.  Under Article 11(3)(e) of regulation 883/2004, the appellant is subject to the legislation of Ireland as his Member State of residence, though I note that Article 11(3)(e) is subject to the proviso that it is “without prejudice to other provisions of this Regulation guaranteeing him benefits under the legislation of one or more other Member States.”

68.  I therefore need to consider Section 2 of Chapter 1 of Title III which concerns sickness benefits and pensioners.

69.  Article 23 applies to the appellant. This provides:

Right to benefits in kind under the legislation of the Member State of residence

A person who receives a pension or pensions under the legislation of two or more Member States, of which one is the Member State of residence, and who is entitled to benefits in kind under the legislation of that Member State, shall, with the members of his family, receive such benefits in kind from and at the expense of the institution of the place of residence, as though he were a pensioner whose pension was payable solely under the legislation of that Member State.

70.  “Benefits in kind” are defined in Article 1(va)(i) for the purposes of the provisions of Regulation 883/2004 as:

… benefits in kind provided for under the legislation of a Member State which are intended to supply, make available, pay directly or reimburse the cost of medical care and products and services ancillary to that care. This includes long-term care benefits in kind.

71.  As noted earlier in this decision, the appellant receives benefits in kind (medical care) in Ireland. Responsibility for meeting the cost of these benefits rests with the competent institution in Ireland as defined in Article 1(q) of Regulation 883/2004.

72.  Article 29 of Regulation 883/2004 governs entitlement to cash sickness benefits. This provides:

Cash benefits for pensioners

1. Cash benefits shall be paid to a person receiving a pension or pensions under the legislation of one or more Member States by the competent institution of the Member State in which is situated the competent institution responsible for the cost of benefits in kind provided to the pensioner in his Member State of residence. Article 21 shall apply mutatis mutandis.

2. … .

73.  Article 21 of Regulation 883/2004 appears in Section 1 of Chapter I of Title II and is concerned with sickness benefits for insured persons and members of their families. The effect of Article 29 is that it reads, so far as applicable to pensioners, as though the references to insured person are references to pensioners. So, its terms are, in effect, as follows:

Cash benefits

1. [A pensioner] and member of his family residing or staying in a Member State other than the competent State shall be entitled to cash benefits provided by the competent institution in accordance with the legislation which it applies. … .

74.  The application of Article 21 does not assist the appellant, since he is residing in the Member State which is the competent State for the payment of cash sickness benefits.

75.  Accordingly, the effect of Article 29 is that the appellant is entitled to cash sickness benefits in Ireland since the competent institution responsible for the costs of benefits in kind is in Ireland.

76.  The outcome is therefore the same under Regulation 883/2004 as it is under Regulation 1408/71 in the circumstances of this case.

The overall effect of this analysis

77.  The overall effect of this analysis is that at all material times, Ireland has been the competent State in relation to sickness benefits with the result that the appellant is not entitled to reinstatement of the care component of a disability living allowance to which he had been entitled in the United Kingdom.

A fresh claim for attendance allowance

78.  The Secretary of State indicates that, where an issue of reinstatement of a disability living allowance arises, it is possible to treat the application as a claim for a benefit going back to 18 October 2007. In these circumstances that would have to be a claim for an attendance allowance because of the appellant’s age.

79.  The Secretary of State notes that it is possible to treat a claim for a disability living allowance as a claim for an attendance allowance. In this case, erroneously, a decision was made on a claim for a disability living allowance. However, the amendments made to the Disability Living Allowance Regulations 1991 by the 2011 Regulations insert regulation 3(3A) of the Disability Living Allowance Regulations which provides that, on a claim treated as made on 18 October 2007 under the special arrangements, a person over 65 is not to be excluded from entitlement solely on the grounds of age. 

80.  There is, however, no entitlement to either a disability living allowance or an attendance allowance on a claim made under the special arrangements put in place following the judgments in Case C-299/05 Commission v European Parliament and Council [2007] ECR I-8695 and Case C-503/09 Lucy Stewart [2011] ECR I-6497 (or otherwise) unless the United Kingdom remains the competent State for the payment of cash sickness benefits.

81.  As explained earlier in this decision, the United Kingdom did not remain the competent State for the payment of cash sickness benefits. This defeats any claim made under the special arrangements (or otherwise).

The overall result

82.  The appellant is not, for the reasons set out in detail above, entitled to reinstatement of his award of the care component of a disability living allowance because Ireland has at all material times been the competent State for the payment of cash sickness benefits.

83.  The appellant is not, for the reasons set out above, entitled to a disability living allowance on a claim made on 14 February 2011 because Ireland has at all material times been the competent State for the payment of cash sickness benefits.

84.  It is appropriate in this case that I should re-make the decisions which the tribunal should have made. They are to the effect set out in paragraphs 82 and 83 above.

85.  My formal decisions in substitution for the decision of the tribunal are set out at the top of this decision.

86.  Since the appellant’s entitlement to sickness benefits (which includes benefits like disability living allowance and attendance allowance) now rests with Ireland, he may be advised to seek advice as to whether there are any relevant benefits for which he can apply under the social security system operating in Ireland. He must not take this advice as either saying that there are relevant benefits or that, if there are, he meets the conditions of entitlement for them. That can only be determined by the adjudicating authorities in Ireland.

 

 

Signed on the original                                                                               Robin C A White

on 10 March 2014                                                                 Judge of the Upper Tribunal