Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007:

The decision of the First-tier Tribunal under reference SC064/12/03889, made on 7 October 2013 at Liverpool, did not involve the making of an error on a point of law.

Reasons for Decision

A.        The issue

1.         The main issue in this case is whether the claimant is entitled to retain (or ‘export’ as it is sometimes expressed) her award of the mobility component of disability living allowance on her move to Spain. I have decided that she cannot. The answer depends on the transitional protection provided by Regulation (EEC) 1408/71 and Regulation (EC) 883/2004.

B.        History and background

2.         The claimant was born on 17 September 1972 and moved to Spain on 5 January 2012. At that stage, she was in receipt of an award of a disability living allowance consisting of the mobility component at the higher rate and the care component at the highest rate on and from 5 July 2010.

3.         As a result of the decision of the Court of Justice of the European Union in Commission v European Parliament and Council (Case C-299/05) [2007] ECR I-8695, the claimant was entitled to retain the care component of her award of disability living allowance on her move to Spain, as it is a sickness benefit. By the way, this explains why the claimant’s daughter was able to retain her carer’s allowance, which is classified as a sickness benefit.

4.         As a result of the decision of the Court of Justice of the European Union in Bartlett, Ramos and Taylor v Secretary of State for Work and Pensions (Case C-537/09) [2012] AACR 34, the mobility component of disability living allowance is not a sickness benefit. Relying on this decision, the Secretary of State removed entitlement to the care component with effect from 6 January 2012. I explain this in paragraphs 8 and 9.

5.         The First-tier Tribunal confirmed this decision on appeal, but gave the claimant permission to appeal to the Upper Tribunal.

6.         The claimant has argued throughout that she is entitled to retain her award of the mobility component.

C.        Which Regulation applies?

7.         In the decision under appeal to the First-tier Tribunal, the Secretary of State relied on Regulation 1408/71. That was wrong, as the claimant did not move until after Regulation 883/2004 came into force. That was the relevant Regulation. The First-tier Tribunal applied that Regulation and was right to do so.

D.       How Regulation 883/2004 applies

8.         The mobility component of disability living allowance is a special non-contributory cash benefit for the purposes of Article 70 of and Annex X to the Regulation. As a result, Article 70(3) and (4) apply:

3. Article 7 and the other Chapters of this Title shall not apply to the benefits referred to in paragraph 2 of this Article.

4. The benefits referred to in paragraph 2 shall be provided exclusively in the Member State in which the persons concerned reside, in accordance with its legislation. Such benefits shall be provided by and at the expense of the institution of the place of residence.

The effect of Article 70(3) is that it was permissible for this country to withdraw the benefit when the claimant moved to another State. The effect of Article 70(4) was that the claimant is only entitled to benefits under the law of the State where she resides.

9.         Putting this simply, Article 70 allows this country to remove entitlement to the mobility component when a claimant moves abroad, leaving the claimant to claim whatever equivalent benefit may be available where they live.

E.        Transitional protection

10.      The claimant’s argument has been that she is entitled to retain entitlement to the care component by virtue of the transitional protection in Article 95b(8) of Regulation 1408/71:

Article 95b

Transitional provisions for application of Regulation (EEC) No 1247/92

…

8. The application of Article 1 of Regulation (EEC) No 1247/92 may not result in the withdrawal of benefits which are awarded before 1 June 1992 by the competent institutions of the Member State under Title III of Regulation (EEC) No 1408/71 to which Article 10 of the latter Regulation is applicable.

I am not going to attempt to explain the complicated wording of that provision. It is sufficient to say that if it applies, the claimant is correct and she is entitled to retain the mobility component. The question is: does it apply? The answer is: no. I now explain why.

11.      The mobility component of disability living allowance was awarded before 1 June 1992. In 1990, the claimant was awarded a mobility allowance for the inclusive period from 16 May 1990 to 16 September 2052. In April 1992, mobility allowance was abolished and her awarded was transferred into an award of the mobility component at the higher rate of disability living allowance pursuant to regulations 7 and 8 of the Social Security (Introduction of Disability Living Allowance) Regulations 1991. So, the claimant is within the terms of the provision.

12.      However, there is a flaw in the claimant’s argument. She did not move to Spain until 2012. By that time, Regulation 1408/71 had been abolished and replaced by Regulation 883/2004. There is no equivalent to Article 95b(8) in the new Regulation.

13.      There is transitional provision in Article 87(8):

If, as a result of this Regulation, a person is subject to the legislation of a Member State other than that determined in accordance with Title II of Regulation (EEC) No 1408/71, that legislation shall continue to apply while the relevant situation remains unchanged and in any case for no longer than 10 years from the date of application of this Regulation unless the person concerned requests that he/she be subject to the legislation applicable under this Regulation. The request shall be submitted within 3 months after the date of application of this Regulation to the competent institution of the Member State whose legislation is applicable under this Regulation if the person concerned is to be subject to the legislation of that Member State as of the date of application of this Regulation. If the request is made after the time limit indicated, the change of applicable legislation shall take place on the first day of the following month.

However as I explained in Secretary of State for Work and Pensions v PW [2013] UKUT 296 (AAC), this only operates to preserve entitlement that has already been established. The claimant was in this country throughout the time that Regulation 1408/71 was in force. She had never relied on its provisions. Accordingly, when it was abolished with effect from 1 May 2010, any protection to which she might have been entitled under Article 95b ceased to be available to her. Thereafter, she had to rely exclusively on Regulation 883/2004. That was the tribunal’s reasoning and it was right in law.

F.        Disposal

14.      The facts of the case were not in dispute. The only issues for the tribunal were legal ones. The tribunal directed itself correctly on the law and applied it accurately. It did not go wrong in law and I must, therefore, dismiss this appeal.

G.       Poor advice

15.      There is one final point. The claimant has said that she was misled by the advice she received from the Department for Work and Pensions and would have moved sooner had she been told that the transitional protection was only available so long as Regulation 1408/71 remained in force. Assuming that she is correct on both counts, that cannot affect how the law applies in this case. The law is set out in the legislation and has to be applied. The decision-maker had to apply the law as it is, and the First-tier Tribunal and Upper Tribunal are in the same position. If the claimant was given poor advice on which she acted to her detriment, that is a matter for complaint to the Department or to the Ombudsman; there is no redress by way of appeal.