Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

As the decision of the First-tier Tribunal (made on 21 January 2014 at Liverpool under reference SC064/13/04528) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007 and the decision is RE-MADE.

The decision is: the Secretary of State is to investigate and decide the claimant’s claim for a carer’s allowance that was made on 26 June 2013. If he satisfies the conditions of entitlement, the Secretary of State is to make a provisional award under Article 6(2) of Regulation (EC) 987/2009 and implement the other provisions of that Article.

Reasons for Decision

A.        What this case is about

1.         This is one of a number of cases that raise competent State issues on the interpretation and application of the EU social security coordination legislation: Regulation (EC) 883/2004 and its implementing provisions in Regulation (EC) 987/2009. The specific issue in this case is the nature of the evidence required to show a difference of views between Member States.

B.        The course of proceedings

2.         Mr F is Italian, but he has a pension from France. He was born on 23 July 1948 and came to the United Kingdom on 25 November 2009, where he began caring for a disabled lady. On 26 June 2013, he made a claim for a carer’s allowance, asking that entitlement begin on 9 June 2013. On 30 July 2013, the Secretary of State refused the claim on the ground that France was the competent State to pay such benefits.

3.         That decision carried the right of appeal to the First-tier Tribunal, which Mr F exercised. In his letter of appeal, he wrote: ‘I have contacted France social security office and they told me there is no way that they would pay a carers allowance for a disabled person living in the UK'. The tribunal allowed the appeal, deciding that this country rather than France was the competent State.

4.         I gave the Secretary of State permission to appeal and drew attention to the relevant provisions of Regulation 987/2009:

Article 6

Provisional application of legislation and provisional granting of benefits

1. Unless otherwise provided for in the implementing Regulation, where there is a difference of views between the institutions or authorities of two or more Member States concerning the determination of the applicable legislation, the person concerned shall be made provisionally subject to the legislation of one of those Member States, the order of priority being determined as follows:

(a) the legislation of the Member State where the person actually pursues his employment or self-employment, if the employment or self-employment is pursued in only one Member State;

(b) the legislation of the Member State of residence if the person concerned pursues employment or self-employment in two or more Member States and performs part of his/her activity or activities in the Member State of residence, or if the person concerned is neither employed nor self-employed;

(c) in all other cases, the legislation of the Member State, the application of which was first requested if the person pursues an activity, or activities, in two or more Member States.

2. Where there is a difference of views between the institutions or authorities of two or more Member States about which institution should provide the benefits in cash or in kind, the person concerned who could claim benefits if there was no dispute shall be entitled, on a provisional basis, to the benefits provided for by the legislation applied by the institution of his place of residence or, if that person does not reside on the territory of one of the Member States concerned, to the benefits provided for by the legislation applied by the institution to which the request was first submitted.

3. Where no agreement is reached between the institutions or authorities concerned, the matter may be brought before the Administrative Commission by the competent authorities no earlier than one month after the date on which the difference of views, as referred to in paragraph 1 or 2 arose. The Administrative Commission shall seek to reconcile the points of view within six months of the date on which the matter was brought before it.

5.         In my grant of permission, I wrote:

I wonder whether the Upper Tribunal and the First-tier Tribunal have been  handling cases like this one correctly. The claimant, who is Italian, receives a retirement pension from France. He has claimed a carer’s allowance in the United Kingdom, having been refused in France (page 1). The Secretary of State refused the claim on the ground that the United Kingdom was not the competent State. The First-tier Tribunal allowed his appeal on the ground that it was. This sort of case can create the invidious situation in which two countries, one of whom must be responsible for paying a claimant, each denies that it is responsible. Fortunately, it seems that there is a mechanism for resolving such matters in Regulation (EC) 987/2009 (the Implementation Directive). It seems that Article 6(2) applies to the circumstances of this case. Should not the Secretary of State have made a provisional decision under that paragraph, leaving the ultimate decision on responsibility to be made in accordance with the mechanism provided by that Article?

6.         The Secretary of State’s representative agreed to contact the French authorities. That was in July 2014. As far as I know, there has been no reply from France, even when the matter was escalated to policy official level.  

7.         Similar issues arise in a number of cases before the Upper Tribunal. I gave a decision on the operation of Article 6(2) of Regulation (EC) 987/2009 in Secretary of State for Work and Pensions v HR [2014] UKUT 571 (AAC).

8.         Following that decision, I gave a direction in this case:

As I read Article 6(2), it applies in this way.

·                It applies if there a difference of view between member States. In this case, there is. France has refused benefit and the United Kingdom denies responsibility.

·                In those circumstances, responsibility lies with the State of residence until the issue is resolved. The claimant lives in this country.

·                That means that this country is provisionally responsible under its legislation.

·                Payment is not automatic. It is only required if the claimant satisfies the domestic conditions of entitlement to a particular benefit, which in this case is carer’s allowance.

Accordingly, unless persuaded otherwise within one month of this direction being issued, I intend to dispose of this appeal by giving a decision that the claimant is provisionally subject to the domestic legislation of his country of residence and that the Secretary of State must now investigate and decide whether he satisfies the conditions of entitlement to an allowance.

9.         In response, the Secretary of State argued that there was no sufficient evidence of a difference of view so that Article 6 did not apply. It was clear on the legislation that the United Kingdom was not the competent State and I should re-make the tribunal’s decision accordingly.

10.      The claimant’s representative replied primarily that the United Kingdom was the competent State, but that if that was wrong, I should apply Article 6.

C.        Analysis

11.      As a result of decisions I have given in HR and other cases, the correct approach to cases like this one has become clear. It depends on whether there has been a difference of view. Article 6(2) says nothing about the form in which that difference must be expressed or the nature of the evidence required to show it. In particular, it does not say that it must be formally expressed in a decision. The only issue for the domestic authorities in this country – the decision-maker, the First-tier Tribunal and the Upper Tribunal – is whether the evidence is sufficient to satisfy them that the two competing States hold different views on the issue. The United Kingdom takes the view that France is the competent State. The claimant says that he approached the French authorities and was told that they would not pay benefit for caring for someone in the United Kingdom. I have no reason to doubt what he says. Given their attitude, it is understandable why he did not press the matter by making a formal claim for the equivalent of a carer’s allowance in France. A formal decision is not required, as I have said. The failure of the Secretary of State’s officials to elicit any response from their French counterparts is some indication of the difficulty that the claimant would face if required to produce some more formal evidence. His difficulty in that regard would be compounded by the fact that he now lives here. His evidence is sufficient to satisfy me that there is a difference of view in this case.

12.      The Secretary of State’s representative has argued that the application of Regulation 883/2004 is clear: France is the competent State, not the United Kingdom. That may be right, but it is not how Article 6(2) operates. That provision is triggered by a difference of view. It takes the decision out of the hands of the States to ensure a single, binding decision. It prevents claimants being left in the position of each State refusing to accept responsibility. That is its purpose and it applies regardless of how clear any particular State considers the answer to be.

13.      As there is a difference of view, Article 6(2) applies. The tribunal went wrong in law by not applying that provision. I set its decision aside and re-make it to provide for the Secretary of State to investigate and decide the claim under domestic legislation and, if necessary, to make a provisional award pending resolution by the Administrative Commission.

D.       The effect of my decision

14.      The effect of my decision is this. The Secretary of State will now decide whether the claimant satisfies the domestic conditions of entitlement to a carer’s allowance. If he does not, that is the end of the matter, although that decision will carry a right to appeal to the First-tier Tribunal. If he does, the Secretary of State must pay that allowance provisionally until the difference of view with France is settled by the Administrative Commission, whose decision will be determinative.