Upper Tribunal (Administrative Appeals Chamber)

 

IN THE UPPER TRIBUNAL Appeal No: CDLA/1956/2014

 

ADMINISTRATIVE APPEALS CHAMBER

 

Before: Upper Tribunal Judge Wright

 

 

DECISION

 

 

The Upper Tribunal disallows the appeal of the appellant.

 

The decision of the First-tier Tribunal sitting at Newcastle on 14 February 2014 under reference SC064/12/04384 did not involve any error on a material point of law and therefore the decision is not set aside.

 

This decision is made under section 12(1) and 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007

 

Representation: Tom Royston, instructed by Luton Law Centre for the appellant/claimant

 

Julia Smyth, instructed by the Government Legal Service for the Secretary of State for Work and Pensions

 

 

 

REASONS FOR DECISION

 

 

Introduction

 

1.                   This appeal concerns a narrow but important point (or at least important if the appellant is correct in his argument).  The point, broadly put at this stage, is whether the provisions limiting entitlement to the mobility component of Disability Living Allowance (DLA) to people aged under the age of 65, where an award of the mobility component was not in place immediately before that age was reached, are contrary to the law of the European Union (EU) concerning free movement. I will refer to this as “the age 65 cut-off”.

 

Summary of decision

 

2.                  For reasons which I set out below, I have concluded that the age 65 cut-off does not offend against EU law and therefore, although some of the steps in the First-tier Tribunal’s analysis may be criticised, it made no material error of law in upholding the Secretary of State’s decision of 10 August 2012 not to supersede an earlier decision so as to make the appellant entitled to the higher rate mobility component of DLA from a point in time when the appellant was aged 68.

 

Factual background

 

3.                  The relevant facts can be taken quite shortly.

 

4.                  The appellant was born on 15 February 1944. He therefore turned 65 on 15 February 2009. Some years prior to this, on 7 November 1996, he had made a claim for DLA. This was awarded at the higher rate of the mobility component (hrmc) and the lowest rate of the care component (lrcc) of DLA for an indefinite period from and including 7 November 1996.  It is accepted for the purposes of the arguments made on this appeal that had the appellant remained in Great Britain he would have remained entitled to the hrmc of DLA for an indefinite period: that is, he has been at all times and remains “virtually unable to walk”.

 

5.                  However, on 28 March 2007 (nearly 2 years before reaching the age of 65), the appellant left Great Britain to live permanently in France. As is agreed, as a matter of domestic and EU law he ceased to be entitled to the hrmc from that date - it being a special non-contributory benefit under article 10a of Council Regulation (EEC) No 1408/71 (Reg 1408/71) and then article 70 of Regulation (EC) No. 883/2004 (Reg 883/2004) from 1 May 2010 - but remained entitled to the lrcc (it not being a special non-contributory benefit).

 

6.                  The appellant, however, returned to live permanently in Great Britain, due to his worsening health, on 1 May 2012. By then he was, of course, aged over 65, 68 in fact.  On 15 May 2012 he asked the Secretary of State to supersede the decision awarding him only the lrcc of DLA from and including 28 March 2007 and ‘reinstate’ his award of the hrmc. This was on the basis that he remained virtually unable to walk. The Secretary of State refused to supersede the award in a decision dated 10 August 2012.  The basis for this decision was that the appellant was over the age of 65 when he sought to become entitled again to the hrmc of DLA. Although the appeal against that decision was dismissed by the First-tier Tribunal on 14 February 2014, it is accepted that on this appeal the issue for the Upper Tribunal is whether the Secretary of State’s decision of 10 August 2014 was wrong in law for being in breach of EU law. I therefore need say no more about the decision of the First-tier Tribunal save to note that it had given the appellant permission to appeal to the Upper Tribunal on 2 April 2014.

 

Legal background

 

Domestic law  

7.                  For the purposes of this appeal DLA finds its relevant statutory basis in section 71 of the Social Security Contributions and Benefits Act 1992 (SSCBA).  Section 71(2) of the SSCBA provides that entitlement to DLA may be an entitlement to either the mobility or care component, or both of them.  Section 71(6) then provides that:

 

“A person shall not be entitled to [DLA] unless he satisfies prescribed conditions as to residence and presence in Great Britain.”

 

8.                 The conditions of entitlement to the components of DLA are then set out in sections 72 and 73 of the SSCBA. Section 75 of the SSCBA deals with the age 65 cut-off. It is titled Persons who have attained the age of 65[1] and by section 75(1) provides:

“Except to the extent to which regulations provide otherwise, no person shall be entitled to either component of a disability living allowance for any period after he attains the age of 65 otherwise than by virtue of an award made before he attains that age.”

 

9.                  Although reference was made by both parties to the changes in 1991 bringing DLA into effect as a benefit and the rationale behind those changes as set out in the 1990 command paper which preceded those changes The Way Ahead: Benefits for Disabled People, it is I think important to recognise that both residence requirements and an equivalent age cut-off appeared in the predecessor benefit, mobility allowance.  This is apparent from section 37A of the Social Security Act 1975, which provided by subsections (1) and (5) as follows:

 

“(1) Subject to the provisions of this section, a person who satisfies prescribed conditions as to residence or presence in Great Britain shall be entitled to a mobility allowance for any period throughout which he is suffering from physical disablement such that he is either unable to walk or virtually unable to do so.

 

(5) No person shall be entitled to a mobility allowance:-

(a) in respect of a period in which he is under the age of 5 or over the age of 80;

(aa) in respect of a period in which he is over the age of 65 but under the age of 80 unless either:

(i)                he had been entitled to a mobility allowance in respect of a period ending immediately before the date on which he attained the age of 65; or

(ii)              he would have been so entitled but for paragraph (b) below and a claim for attendance allowance by or in respect of him is made before the date on which he attained the age of 66;

(b) except in prescribed cases, for any week before that in which a claim for the allowance by or in respect of him is received by the Secretary of State.”

10.              Ignoring the potentially discriminatory effect of linking the second age cut-off to an age which was only the pensionable age for men and not women, an apparent aspect of both the mobility allowance and DLA was and is to make them in the main what would now be termed ‘working age’ benefits, albeit not income replacement benefits.  It was rightly accepted before me that a person claiming the hrmc of DLA for the first time at the age of 68 could not be entitled to that benefit. Putting to one side issues of free movement within the EU, the same must apply where a person was entitled to the hrmc of DLA before the age of 65, who continues to satisfy the functional conditions of entitlement (e.g. being virtually unable to walk) after the age of 65, but who fails to make a renewal claim for the benefit in time on the award coming to and end after the age of 65.

 

11.               The residence and age 65 cut-off statutory provisions for DLA are mapped out further in the Social Security (Disability Living Allowance) Regulations 1991 (DLA Regs). Regulation 2 of the DLA Regs provided at the time of the Secretary of State’s decision under appeal, so far as is relevant, that:

 

“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

(ib) he is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999(a) or section 115 of that Act does not apply to him for the purposes of entitlement to disability living allowance by virtue of regulation 2 of the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000, 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 purposes 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–

(a) he is abroad in his capacity as–

(i) a serving member of the forces,

(ii) an airman or mariner….; or

(b) he is in employment prescribed for the purposes of [section 120] of

the Act in connection with continental shelf operations; or

(c) he is living with a person mentioned in sub-paragraph (a)(i) and is the spouse, civil partner, son, daughter, step-son, step-daughter, father, father in- law, step-father, mother, mother-in-law or step-mother of that person; or

(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…..”

 

 

And regulation 3 of the DLA Regs provided as follows.

 

“Age 65 or over

 

3.—(1) A person shall not be precluded from entitlement to either component of disability living allowance by reason only that he has attained the age of 65 years, if he is a person to whom paragraphs (2) and (3) apply.

(2) Paragraph (3) applies to a person who–

(a) made a claim for disability living allowance before he attained the age of 65, which was not determined before he attained that age, and

(b) did not at the time he made the claim have an award of disability living allowance for a period ending on or after the day he attained the age of 65.

(3) In determining the claim of a person to whom this paragraph applies, where the person otherwise satisfies the conditions of entitlement to either or both components of disability living allowance for a period commencing before his 65th birthday (other than the requirements of section 72(2)(a), or, as the case may be, section 73(9)(a) of the Act (3 months qualifying period)), the determination shall be made without regard to the fact that he is aged 65 or over at the time the claim is determined…….

(4) Schedule 1, which makes further provision for persons aged 65 or over shall have effect.”

 

 

Schedule 1 to the DLA Regs provided, so far as is material, as follows.

 

 

“ PERSONS AGED 65 AND OVER

 

Revision or supersession of an award made before person attained 65

1.—(1) This paragraph applies where–

(a) a person is aged 65 or over;

(b) the person has an award of disability living allowance made before he attained the age of 65;

(c) an application is made in accordance with section 9 of the 1998 Act or section 10 of that Act for that award to be revised or superseded and

(d) an adjudicating authority is satisfied that the decision awarding

disability living allowance ought to be revised or superseded.

(2) Where paragraph (1) applies, the person to whom the award relates shall not, subject to paragraph (3), be precluded from entitlement to either component of disability living allowance solely by reason of the fact that he is aged 65 or over when the revision or supersession is made.

(3) Where the adjudicating authority determining the application is

satisfied that the decision ought to be superseded on the ground that there has been a relevant change of circumstances since the decision was given, paragraph (2) shall apply only where the relevant change of circumstances occurred before the person attained the age of 65.

 

Revision or supersession of an award other than a review to which paragraph 1 refers

2. References in the following paragraphs of this Schedule to a revision or supersession of an award refer only to those revisions or supersessions where the awards which are being revised or supersession were made–

(a) on or after the date the person to whom the award relates attained the age of 65; or

(b) before the person to whom the award relates attained the age of 65 where the award is superseded by reference to a change in the person’s circumstances which occurred on or after the day he attained the age of 65.

 

Age 65 and over and entitled to the care component

3.—(1) This paragraph applies where a person on or after attaining the age of 65–

(a) is entitled to the care component and an adjudicating authority is satisfied that the decision awarding it ought to be revised under section 9 of the 1998 Act or superseded under section 10 of that Act; or

(b) makes a renewal claim for disability living allowance.

(2) Where a person was entitled on the previous award or on the award being revised or superseded to the care component payable–

(a) at the lowest rate, that person shall not be precluded, solely by reason of the fact that he is aged 65 or over, from entitlement to the care component; or

(b) at the middle or highest rate, that person shall not be precluded, solely by reason of the fact that he has attained the age of 65, from entitlement to the care component payable at the middle or highest rate……

 

Age 65 or over and entitled to mobility component

5.—(1) This paragraph applies where a person on or after attaining the age of 65 is entitled to the mobility component payable at the higher rate specified in regulation 4(2)(a), and–

(a) an adjudicating authority is satisfied that the decision giving effect to that entitlement ought to be revised under 9 of the 1998 Act or superseded under section 10 of that Act, or

(b) the person makes a renewal claim for disability living allowance.

(2) A person to whom this paragraph applies shall not be precluded, solely by reason of the fact that he has attained the age of 65, from entitlement to the mobility component by virtue of having satisfied or being likely to satisfy one or other of the conditions mentioned in subsection (1)(a), (b) or (c) of section 73 of the Act…..

 

Aged 65 or over and award of lower rate mobility component

6.—(1) This paragraph applies where a person on or after attaining the age of 65 is entitled to the mobility component payable at the lower rate specified in regulation 4(2) and–

(a) an adjudicating authority is satisfied that the decision giving effect to that entitlement ought to be revised under section 9 of the 1998 Act or superseded under section 10 of that Act, or

(b) the person makes a renewal claim for disability living allowance.

(2) A person to whom this paragraph applies shall not be precluded, solely by reason of the fact that he has attained the age of 65, from entitlement to the mobility component……..

 

Award of care component where person entitled to mobility component

7.—(1) This paragraph applies where a person on or after attaining the age of 65 is entitled to the mobility component and–

(a) an adjudicating authority is satisfied that the decision giving effect to that entitlement ought to be revised under section 9 of the 1998 Act or superseded under section 10 of that Act, or

(b) the person makes a renewal claim for disability living allowance.

(2) A person to whom this paragraph applies shall not be precluded solely by reason of the fact that he has attained the age of 65 from entitlement under section 72(1) of the Act by virtue of having satisfied either the conditions mentioned in subsection (1)(b) or in subsection (1)(c), or in both those subsections….”

   

 

12.              It is common ground that none of these provisions could assist the appellant when he made his application in 2012 to supersede the decision awarding him the lrcc of DLA so as to include an award of the hrmc of DLA. The reason for this is that the appellant only had an award of the lrcc of DLA at that time. Regulation 3(1) cannot assist him as it is limited to persons who had made a claim for DLA before reaching the age of 65 which had not been decided by the time they had reached the age of 65.

13.              Schedule 1 to the DLA Regs is of no assistance either. Paragraph 1 of that Schedule only provides a power to revise or supersede the awarding decision which is conditional upon the Secretary of State being satisfied that the decision ought to be changed and only discounts the fact that the claimant was aged 65 or over when the application was made. It does not disapply the age 65 cut-off more generally.  And its focus is on awards wrongly made at the time they were made (before the age of 65) or where there has been a relevant change of circumstances that occurred after the decision was made but before the age of 65 was reached, none of which  applied to the appellant. 

 

14.              No other part of Schedule 1 to the DLA Regs can assist the appellant either, and this was not disputed.  Paragraph 3 of Schedule 1 is concerned only with the care component of DLA continuing after the age of 65.  Paragraph 5 does not apply because the appellant was not entitled to the hrmc of DLA on or after attaining the age of 65.  Paragraph 6 is concerned solely with continuing entitlement to the lower rate mobility component after the age of 65. And paragraph 7 gives the power to confer entitlement to the highest or middle rates of the care component (if the functional and other entitlement conditions are satisfied) after the age of 65 where the claimant has an award of the mobility component on or after the age of 65.

 

15.               In NT –v- SSWP [2009] UKUT 37 (AAC); R(DLA) 1/09, a challenge was made to the age 65 cut-off in respect of the mobility component of DLA under human rights law. The claimant in that case was entitled to the lower rate of the mobility component and the middle rate of the care component of DLA but after a fall which occurred after she was 65 she sought supersession of the award to increase the mobility component part of her award to the higher rate.  Like the appellant in this case, the statutory framework set out above did not assist her. Unlike this case, however, NT’s case did not involve EU law or freedom of movement within the EU[2].  

 

16.              In dismissing a further appeal by the claimant, Upper Tribunal Judge Levenson concluded in paragraph 39 of NT that:

 

“The question is whether the Secretary of State has provided a rational explanation for the policy of the law in this case, which he has, and whether the method of achieving the objectives of that policy are proportionate, which they are. The State has, as has been observed above, a wide margin of appreciation in the implementation of social policy and in economic matters. The legal position in the present case is well within that margin”

 

 

He did so on the basis of the following considerations and evidence (at paragraphs 35-37):

 

“consideration must be given to the interlocking nature of the social security scheme as a whole, and that the cut-off point in the present case “is precisely the point at which one becomes entitled to a range of other benefits (including, but not limited to, retirement pension)”. Government policy behind the introduction of mobility allowance in 1975 was designed to help primarily those of working age with mobility problems. In January 1990 a White Paper – The Way Ahead: Benefits For Disabled People (Cm 917) – preceded the restructuring of benefits in the Social Security Contributions and Benefits Act 1992. Paragraph 78 stated in connection with the aim of the proposed new benefit structure:

“the overall structure should give priority for additional help to those disabled earlier in life for whom disability is more financially disruptive in terms of the lost opportunity to earn and save.”

At that time, according to the Secretary of State, pensioners, constituting two-thirds of those identified as disabled, had experienced 23 per cent growth in net incomes in real terms since 1979 (paragraph 3.20). Further, in 1985 the average net equivalent weekly income of a disabled non-pensioner family unit was 73 per cent of the average for the general (non-pensioner) population. The average net equivalent weekly income of a disabled pensioner family unit was 98 per cent of the average for the general (pensioner) population (paragraph 2.15). This, the Secretary of State argued, provided a rational justification for the difference in treatment of which the claimant complains.

The claimant submitted a written statement from Paul Cann, Director of Policy and External relations for Help the Aged. Mr Cann challenged the suggestion that people who become disabled in later life have had the opportunity to prepare for older age and for a degree of loss of independence. He pointed out that 9 million people are over the age of 65 (expected to increase to over 15 million in the next 25 years) and that 1.25 million are over the age of 85, although he does not specify the population to which he is referring (UK? GB? England?). He suggests that to discriminate against such a large number of people is “untenable in a civilised society of which freedom of movement is a cornerstone”. 67,080 people over the age of 65 are in receipt of lower rate mobility component and are potentially affected by the decision in this case. I am not sure about this, because the criteria of entitlement for the two levels of mobility component are quite different. However, if he is correct, and if all such people were entitled to higher rate mobility component instead of lower rate, that is a potential extra cost of over £100 million annually. I take his further argument that, as there are already 620,540 people aged 65 or over in receipt of the higher rate, the additional cost would not be a very big proportion of this, still less of the overall benefits budget, but £100 million a year is still a significant amount. For example, it could pay for the employment of perhaps 3,000 or more teachers and nurses or welfare rights workers.”

 

Based on this, Judge Levenson reasoned, before reaching his conclusion in paragraph 39, on the assumption that the claimant satisfied the functional tests for entitlement to the hrmc after the age of 65, that:

 

“The question of entitlement to this benefit is within the ambit of both Article 8 and Article 1 of Protocol 1 of the Convention. Because of her age the claimant was not in fact entitled to that part of DLA. Had she satisfied those conditions before reaching the age of 65 she would have been so entitled. The fact that she was and continued to be entitled to lower rate mobility component is of limited relevance because the conditions of entitlement to the two levels are so different. The difference in treatment between those who did and those who did not satisfy the conditions of entitlement before reaching the age of 65 is by definition based on age. Age is not specifically referred to in the wording of Article 14 of the Convention, but it is encompassed by the words “or other status”. It is not one of the “suspect” grounds listed by Lord Hoffman in [15] of Carson. To treat a person differently on grounds of age does not inevitably “offend our notions of respect due to the individual” although it is capable of so doing. It depends on the circumstances and the nature of the difference in treatment. To treat a small child differently from a mature and experienced adult does not really require much justification. To treat mature adults differently from each other because they are of different ages requires more justification. Demeaning treatment may well be impossible to justify. However, a difference of treatment in entitlement to one particular social security monetary benefit in a complex and sophisticated benefit system when the complainant has reached the age of entitlement to other benefits is not demeaning. It does not deprive the claimant of “entitlement to equal respect and to be treated as an end and not a means” (per Lord Hoffman in Carson). However, it does require rational justification.”

17.               As a reported decision of the Upper Tribunal this decision is not to be departed from lightly, even if I considered it to be wrong. In any event, neither party before me sought to argue it was wrongly decided.  In particular, the appellant argues that NT is authority (only) for the proposition that it is justified (and therefore lawful as a matter of human rights law if not EU law), to restrict DLA to claimants whose disability appears before they reach the age of 65. He argues that this justification is understandable because a person who becomes disabled while of working age faces a lifetime disadvantage from the lost opportunity to earn and save, and this is not a disadvantage which evaporates upon reaching 65.  The appellant, however, was disabled before the age of 65 and it is argued, therefore, his exclusion runs contrary to the policy.

 

European Law 

18.              The reason why the appellant ceased to be entitled to the hrmc of DLA when he went to live in France in March 2007 was article 10a of Regulation 1408/71.  This provided, relevantly, as follows: 

 

“Article 10a

Special non-contributory benefits

1. Notwithstanding the provisions of Article 10 and Title III, persons to whom this Regulation applies shall be granted the special non-contributory cash benefits referred to in Article 4(2a) exclusively in the territory of the Member State in which they reside, in accordance with the legislation of that State, provided that such benefits are listed in Annex IIa. Such benefits shall be granted by and at the expense of the institution of the place of residence.”

 

 

19.              The effect of decisions of the Court of Justice of the European Union (CJEU) culminating in Bartlett and others –v- SSWP (C-537-09) [2011] 3 CMLR 9, is that the mobility component of DLA is a special non-contributory cash benefit which can only be granted exclusively in the territory of the United Kingdom and in accordance with the applicable national legislation.  In effect, the mobility component of DLA has to be treated as a separate benefit, for these purposes, from the care component of DLA. Accordingly, the appellant could not ‘export’ the hrmc of DLA when he went to live in France as he was no longer in the  territory of the UK as a member state and he did not satisfy the national legislation requiring him to be resident in Great Britain as set out in regulation 2 of the DLA Regs. None of this is disputed.

 

20.             Bartlett was a reference to the CJEU by the Upper Tribunal (AAC).  In essence, the Upper Tribunal asked the CJEU two questions. First, was the mobility component of DLA severable from the care component of DLA (which in Commission of the European Communities –v- European Parliament (C-299/05) [2007] ECR I-8695, had been held to be a sickness benefit and not a special non-contributory benefit and thus exportable under Reg 1408/71) so as to be a special non-contributory cash benefit?  Second, if this was the case, whether, in the light of any other rule or principle of EU law, article 10a of Reg 1408/71 was valid to the extent that that it allowed the award of the mobility component of DLA to be made subject to conditions as to residence and presence in Great Britain?

 

21.              The CJEU answered the first question in the affirmative. In answering the second question also in the affirmative the CJEU said (at paragraphs 34-42:

“By its [second] question, the national tribunal is, in essence, questioning the Court as to the validity, in the light of ‘any other rule or principle of EC law’, of Article 10a of Regulation No 1408/71 and of Regulation No 1408/71, as amended, inasmuch as it allows the award of the mobility component of DLA, should that constitute a special non-contributory cash benefit within the meaning of Article 4(2a) of Regulation No 1408/71 and of Regulation No 1408/71, as amended, to be made subject to conditions as to residence and presence in Great Britain.

The national tribunal thus gives no indication as to the provision or provisions of European Union law in the light of which that assessment is to be made.

The Court has, in similar circumstances, held that it must extract from all the factors provided by the national court or tribunal, and in particular from the statement of grounds contained in the reference, the elements of European Union law requiring an interpretation, having regard to the subject-matter of the dispute in the main proceedings (see, to that effect, Case 204/87 Bekaert [1988] ECR 2029, paragraph 7 and the case-law cited).

In that regard, it is necessary to take into consideration the rules on the free movement of workers and those concerning European Union citizenship.

With regard to the first aspect, the Court has already held that the provisions of Regulation No 1408/71 on the waiver of residence clauses constitute measures to give effect to Article 48 TFEU taken in order to establish, in the field of social security, the free movement of workers guaranteed by Article 45 TFEU and that, as regards the special non-contributory benefits mentioned in Annex IIa to Regulation No 1408/71, it is permissible for the European Union legislature to adopt, in the course of implementation of Article 48 TFEU, provisions derogating from the principle of the exportability of social security benefits. In particular, the grant of benefits closely linked with the social environment may legitimately be made subject to a condition of residence in the State of the competent institution (see, to that effect, Joined Cases C-396/05, C-419/05 and C-450/05 Habelt and Others [2007] ECR I-11895, paragraphs 78 and 81 and the case-law cited).

As stated in the context of the answer to the first two questions, that is indeed the case with regard to the mobility component of DLA.

Consequently, the view must be taken that, inasmuch as it allows the award of the mobility component of DLA to be made subject to conditions as to residence and presence in Great Britain, Article 10a of Regulation No 1408/71 and of Regulation No 1408/71, as amended, is not incompatible with the free movement of persons and with Article 48 TFEU in particular.

As regards the rules on European Union citizenship, it must be borne in mind that, in accordance with settled case-law, Article 21 TFEU, which sets out the right of every citizen of the Union to move and reside freely within the territory of the Member States, finds specific expression in Article 45 TFEU (see, inter alia, Case C-287/05 Hendrix [2007] ECR I-6909, paragraph 61) and that accordingly there is no need to adjudicate thereon for the purpose of the main proceedings.

It follows from all of the foregoing that consideration of the third question has disclosed nothing capable of affecting the validity of Article 10a of Regulation No 1408/71 in either of the versions applicable in the main proceedings, inasmuch as that article allows the award of the mobility component of Disability Living Allowance to be made subject to conditions as to residence and presence in Great Britain.”

22.             Despite what may be seen as the cogent criticisms of this decision made by Upper Tribunal Judge Mesher in the reported decision NG –v- SSWP (DLA) [2012] UKUT 26 (AAC); [2012] AACR 35, it was accepted before me that Bartlett was correctly decided.  That is consistent with the decision in NG itself, where despite his concerns Judge Mesher accepted that the ruling in Bartlett was clear and unambiguous and was binding on any UK court or tribunal. In my judgment it provides the correct starting point for the analysis of the issues which arise on this appeal. 

 

23.             Before turning to that analysis, however, I note for completeness that Article 10a of Reg 1408/71 has been replaced with effect from 1 May 2010 by article 70 of Reg 883/2004. This provides:

 

“70.1. This Article shall apply to special non-contributory cash benefits which are provided under legislation which, because of its personal scope, objectives and/or conditions for entitlement, has characteristics both of the social security legislation referred to in Article 3(1) and of social assistance.

 

2. For the purposes of this Chapter, "special non-contributory cash benefits" means those which:

(a) are intended to provide either:

(i) supplementary, substitute or ancillary cover against the risks covered by the branches of social security referred to in Article 3(1), and which guarantee the persons concerned a minimum subsistence income having regard to the economic and social situation in the Member State concerned; or

(ii) solely specific protection for the disabled, closely linked to the said person's social environment in the Member State concerned, and

(b) where the financing exclusively derives from compulsory taxation intended to cover general public expenditure and the conditions for providing and for calculating the benefits are not dependent on any contribution in respect of the beneficiary. However, benefits provided to supplement a contributory benefit shall not be considered to be contributory benefits for this reason alone, and

(c) are listed in Annex X.

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.”

Arguments, Discussion and Conclusions

 

24.             Notwithstanding the large number of decided cases put before me, the arguments surrounding them and the time it has taken me to consider them, I consider that the answer on this appeal can be given quite shortly. It is an answer which in many ways accords with the argument of the Secretary of State. 

 

25.              The appellant in my judgment is caught between two significant parts of the law.

 

26.             The first is that exemplified by Bartlett and the clear legal rule that the appellant could only be entitled to the hrmc (i) whilst in the territory of Great Britain and (ii) in accordance with the applicable national law. That national law in this case, however, includes the age 65 cut-off.  The appellant, rightly, does not argue that he maintained an underlying entitlement to the hrmc of DLA while he was living in France. For the reasons given in Bartlett , he lost that entitlement on leaving Great Britain in 2007 as he no longer satisfied the residence conditions as set out in regulation 2 of the DLA Regs; and those residence conditions are lawful given the decision in Bartlett.  However on returning to Great Britain in 2012, as it seems to me is consistent with the terms of article 10a of Reg 1408/71 and/or article 70 of Reg 883/2004, the appellant’s entitlement to the hrmc of DLA had to be decided in accordance with domestic law, and that included the age 65 cut off rule. The force of the language in article 10a of Reg 1408/71 is important here – a person shall be granted the hrmc of DLA exclusively in the territory of the Unite Kingdom and in accordance with the national legislation as set out in the SSCBA and the DLA Regs.

 

27.              I think it worth emphasising the rationale of the CJEU in Bartlett for finding that the mobility component of DLA was a special non-contributory benefit. This was because of its purpose, which the CJEU accepted was to pursue solely the objective of promoting the independence and social integration of disabled persons in GB/the UK and also placing them, as far as is possible, in a situation similar to non-disabled persons in GB/the UK.  Furthermore, the court concluded that the amount of the mobility component was dependent on the level of the mobility problems suffered by the person concerned in GB/the UK.  It was for these reasons that the CJEU in Bartlett concluded, as I read its judgment, that the mobility component of DLA “is closely linked to the social environment of [individual claimants] in [Great Britain or the UK]” (paragraph 29). Moreover, the CJEU considered it significant that it was a “benefit awarded in the overwhelming majority of cases to persons who cannot work because of their disability”. And it was based on all of these considerations that the mobility component of DLA was held in Bartlett to be a special non-contributory benefit, and thus one whose purpose required it to be awarded exclusively to people in Great Britain and under national legislation alone.

 

28.             I have already noted the concerns raised in NG about the soundness of the factual basis for a number of the above considerations which led  the CJEU in Bartlett to conclude that the mobility component of DLA was a special non-contributory benefit and severable from the care component. However as NG itself points out, this conclusion in Bartlett is binding on UK courts and tribunals, and thus on me. Moreover, the above rationale in my judgment provides a powerful counter against the argument of the appellant. That argument is put either as the age 65 cut-off:

 

(i)                           being an unjustified obstacle to free movement within the EU, or

 

(ii) constituting unlawful discrimination based on nationality (per, primarily,  D’Hoop –v- Office National Emploi (Case C-224/98) [2002] 3 CMLR 12).

 

29.             As to argument (i), however, it seems to me that the CJEU’s decision in Bartlett has to be read as substantially standing against such a challenge because of its ruling on what I have described as the ‘second question’ above and the court’s view that allowing the mobility component of DLA not to be exportable elsewhere in the EU (that is, it can only be awarded in Great Britain), and that the awarding of it is subject only to national law, was part of, and consistent with, the implementation of Articles 48 and 49 of the Treaty on the Functioning of the European Union (TFEU) on the implementation of freedom of movement for workers within the EU and their contingent access to social security benefits, and derogations therefrom. Given that the derogation for the mobility component of DLA under article 10a of Reg 1408/71 and article 70 of Reg 883/2004 is a specific and lawful expression of the implementation of these fundamental provisions of the TFEU, I can identify no scope for an argument that the national legislation governing the mobility component of DLA, including the age 65 cut-off, constitutes an unjustified obstacle to free movement. 

 

30.             Put shortly, the very fact that that national legislation amounts in EU law terms to a lawful derogation from free movement principles attached to social security benefits must surely provide the answer that the legislation is, by its special non-contributory nature, consistent with free movement.

 

31.              Further, and as to argument (ii), I struggle to see how legislation which in its critical aspects and as a matter of EU law dictates that entitlement is dependent on residence in one member state (Great Britain), can be said to be unlawful under Article 18 of TFEU on the grounds of nationality. For a start, Article 18, although an overarching provision, in its own terms is made “without prejudice to any special provisions contained [within TFEU and other Treaties]”, and so has to be read subject to Articles 21, 48 and 49.  Although it may be said that a residence clause such as that in regulation 2 of the DLA Regs is not based directly on nationality, it seems obvious that far more UK nationals benefit from it as compared to other EU nationals. But that is the whole point of the derogation in article 10a of Reg 1408/71 - it allows individual member states to favour only those living within their state with certain benefits, and that overwhelmingly will mean their own nationals.

 

32.             These answers to the appellant’s arguments (i) and (ii) are, in my judgment, supported by the decision in NG at paragraphs 17-20. Judge Mesher in those paragraphs refers to CJEU’s decision in Stewart –v- SSWP (Case 503/09) [2012] AACR 8, on the UK social security benefit “incapacity benefit in youth”.  The CJEU in Stewart ruled that the presence and past presence tests for entitlement to that benefit were by their very nature likely to deter free movement within the EU and were an unjustified obstacle to free movement under Article 21 of TFEU. Judge Mesher in paragraph 18 of NG raised the “faint possibility” of the claimant in NG running an argument that the residence tests in respect of the mobility component of DLA likewise were likely (by their very nature) to deter freedom of movement and residence.  But Judge Mesher noted that the claimant in NG “rightly” did not take up such an argument.  This was because, as Judge Mesher explained in paragraph 20 of NG, the faint possibility of such an argument was “in reality non-existent”. The crucial material difference between Stewart and NG (and this case) was that the presence and past presence in issue in Stewart found no co-ordination provision in Reg 1408/71 and therefore, “Regulation No 1408/71 being silent, there was nothing to stand in the way of the general principles of freedom of movement” (NG at paragraph 20). The position with the mobility component, however, was quite different:

 

“where Regulation No 1408/71 does supply a co-ordination rule, as it has for special non-contributory benefits in the Article 10a regime. The judgment in Stewart therefore throws no doubt on the conclusions in paragraphs 38 to 42 of the judgment in Bartlett that the establishment of that regime and its application to the mobility component of DLA was not incompatible with the claimant’s rights under Article 21 of the TFEU, or with rights under Articles 45 and 48” (NG again at paragraph 20 – my underlining added for emphasis).

 

In other words, and in my view, it is precisely because the mobility component of DLA is properly (per Bartlett) classified as a special non-contributory benefit under EU law that it is taken outwith challenges based on alleged non-compliance with Articles 20, 21, 45, 48 and 49 of the TFEU. In my judgment, and for the reasons given in paragraph 31 above, this must hold equally true for Article 18 of TFEU, thus rendering reliance on D’Hoop as irrelevant[3].

33.             The appellant’s argument against this analysis, if I understood it correctly, was to accept it but to say that it does not provide the answer to the particular vice in this case, namely the age 65 cut off, as all NG and Bartlett were concerned with was the residence conditions affecting entitlement to the DLA mobility component.

 

34.             I reject this argument. Although I accept that the CJEU in Bartlett did not have before it any specific argument about the age 65 cut-off rule offending against free movement principles or those concerning the prohibition on nationality discrimination, and it was focusing on the national residence rules in the DLA scheme, I do not accept that the effect of its judgment is limited only to those national residence rules.  This, as I have sought to foreshadow above, is because of the terms of article 10a of Reg 108/71/article 70 of Reg 883/2004 and special non-contributory benefits being awarded solely on the basis of national law.  That it seems to me is just as much a consequence of the holding in Bartlett of the mobility component’s status as a special non-contributory benefit as the upholding of the residence rules. They go hand-in-hand.

 

35.              I gather support for this view from the linkage back in Bartlett to the mobility component of DLA being classified as a special non-contributory benefit because it was (and is) closely linked to the social environment of the claimant in Great Britain and was a benefit awarded in the overwhelming majority of cases to those of working age who cannot work because of their disability (per paragraphs 27-30 of Bartlett). It was thus that particular social environment which led the CJEU to be satisfied in Bartlett that it was a benefit to be made available only in the UK/Great Britain and one which could be made available solely under the national law, including the age 65 cut off.  

 

36.             Furthermore, it seems to me it is now that the second part of the law which I have described the appellant as being caught by becomes relevant. This is the decision in NT and the age discrimination argument it rejected.  The appellant was at pains to stress that he was not arguing that NT was wrongly decided (just as he accepted that Bartlett rightly prevented him from exporting his mobility component to France). In reality, however, his argument had to be that the free movement and nationality TFEU rights ordinarily derogated from in the case of persons of any age seeking to retain entitlement to the mobility component of DLA when moving elsewhere in the EU, acted as an unjustified fetter on the rights of people of, or coming up to, a certain age (over 65) in exercising their free movement rights.  However, the age 65 cut off rule is part of the permitted national legislation under article 10a of Reg 1408/71 and is as much a part of the close (national) social environment link as the residence rules.  Moreover, following NT, the justification for that age 65 cut off rule in terms treating people of different ages differently is very much rooted in the close social environment of the national social security and social welfare systems. The evidence of that is set out in paragraphs 35-37 of NT (quoted in paragraph 16 above)[4]. I should add here that I reject the appellant’s argument that the decision in NT  was concerned only with the justification of restricting DLA to claimants whose disability occurred before the age of 65.  On proper analysis it seems to me that NT also considered the justification in the context of not paying the hrmc of DLA to a person who had become virtually unable to walk after the age of 65 as those were the facts of the NT case.

 

37.              For these reasons it seems to me that the freedom of movement argument (for persons of or near a certain age) collapses back into an argument based on the age discrimination, which in effect is seeking to arrive at a different result from that arrived at in NT.

 

38.             If I am wrong in the above analysis, however, and contrary to NG there remains space even within the confines of the mobility component of DLA as a special non-contributory benefit for an argument based on alleged breaches of the TFEU, the appellant’s argument must still fail in my judgment because of the failure to show that the impugned measure – the age 65 cut off rule – is “likely, by its very nature, to deter” the appellant and others from exercising their free movement rights: per paragraph 85 of Stewart.

 

39.             I was taken through much learning of the ECJ and the CJEU on the nature of the correct test which gives rise to a prima facie case of indirect discrimination sufficient to properly call for justification by the member state. The balance of that authority, it seemed to me, favoured the above “by its very nature” test, especially in the field of social security. (I did not find convincing the appellant’s attempt to argue Stewart itself only imposed a “very probable” test in its paragraph 85. The latter phrasing was being used by the court to test or apply the “by its very nature” test.) 

 

40.             However none of the cases, at least as far as I could see out of those I was taken to, concerned special non-contributory benefits immune from exportability within the EU.  In my judgment if there is (per NG) to be any room for a discrimination challenge to legitimately arise in respect of a special-non-contributory benefit, I cannot see any possible basis for it properly being a lesser test than that which applies to benefits which are meant to be exportable and therefore may well be expected to engage free movement principles under the TFEU.

 

41.              Accordingly, if this alternative aspect of the appellant’s argument is to succeed it has to be, in my judgment, that the age 65 cut off rule by its very nature is likely to discriminate against free movement and/or on nationality grounds.  I am not sure whether it was common ground that the rule could not show this under this test, but in any event nothing put before me in terms of evidence or arguments based on this test satisfied me that it was met.  I accept, in short, the Secretary of State’s argument that there is nothing intrinsically in the age 65 cut off rule which is liable to inhibit free movement.  Putting this another way, there is nothing inevitable about the operation of that rule which affects free movement, unlike a residence rule. At best it might amount to having a very indirect affect in the exercise of free movement rights in some cases. 

 

42.             In the circumstances, the question of whether proven discrimination can be justified does not arise and, in these circumstances, I do not consider it would be either appropriate or helpful for me to say anything on this issue.  

Conclusion

43.             For the reasons given above, this appeal is dismissed and the tribunal’s decision of 14 February 2014 upholding the Secretary of State’s refusal to supersede decision of 10 August 2012 stands as the determinative decision on the appeal.  Those reasons, I hope, also make it clear why I did not consider any reference to the CJEU was needed before coming to my decision.

 

Signed (on the original) Stewart Wright

Judge of the Upper Tribunal

 

Dated 15^th December 2015