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Neutral Citation Number:	2009 UKUT 226 AAC
Reported Number:
File Number:	CIB 3552 2008
Appellant:	Secretary of State for Work and Pensions
Respondent:	PS
Judge/Commissioner:	Judge C G Ward
Date Of Decision:	09/11/2009
Date Added:	15/01/2010
Main Category:	European Union law
Main Subcategory:	Council regulations 1408/71/EEC and (EC) 883/2004
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2010] AACR 14 European Union law – conflict of laws – Article 13 of Regulation (EEC) 1408/71 EC rather than Article 1 determines the national legislation applicable – whether an entitlement to national insurance credits if established brings claimant within Article 13 of Regulation 1408/71 EC The claimant had lived in Spain from 5 December 1992 to 20 December 2006, working on a self-employed basis and paying insurance contributions under the relevant Spanish legislation. In around February 2006 she became incapable of work and was awarded a form of sickness benefit until September 2006. On 20 December 2006 she returned to the United Kingdom with her husband. She and her husband made a joint claim for income-based jobseeker’s allowance in January 2007. Her husband found work and she was advised to continue signing on in order to preserve her credit position. On 1 February 2007 she claimed incapacity benefit. Her claim was refused as she did not meet the relevant contribution conditions. The claimant appealed to an appeal tribunal arguing that insurance in the United Kingdom would as a matter of European Union law mean that United Kingdom rather than Spanish social security law applied and that she could rely on credits associated with her joint claim for income-based jobseeker’s allowance for a few weeks in January 2007 as constituting sufficient insurance for this purpose in relation to her incapacity benefit claim made in February 2007. The tribunal allowed her appeal. The Secretary of State appealed to the Upper Tribunal (Administrative Appeals Chamber). Held, allowing the appeal, that: 1. entitlement to credits under regulation 8A(1) of the Social Security (Credits) Regulations 1975 can only be decided at the end of the tax year because regulation 3 restricts entitlement to the shortfall in a claimant’s relevant earnings factor for a year (CIB/1602/2006 and CIB/3327/2004 followed) and so the tribunal was in error in holding that the claimant was in receipt of national insurance credits (paragraphs 8 to 11); 2. it is Article 13 of Regulation (EEC) 1408/71 that determines the question of the national legislation applicable to a claimant and not the definitions of “competent institution” and “competent State” in Article 1(o) and (q) Kuusijärvi (Case C-275/96) [1998] ECR I-3419 and Coppola v Insurance Officer (Case C-150/82) [1983] ECR 43 cited) (paragraphs 12 to 20); 3. even if the claimant’s prospective entitlement to national insurance credits were to constitute sufficient insurance to bring her within the definitions of “employed person” for the purposes of Article 1(a), that did not help her in bringing herself within Article 13(2)(a) as the purpose of the provisions is different, Articles 1 and 2 being concerned with the applicability of the Regulation as a whole and, in the interests of promoting Treaty aims of freedom of movement of persons, requiring a wide interpretation while Article 13 is concerned with conflict of laws issues, and there is no reason to construe any sub-paragraph of Article 13(2) particularly widely (Martinez Sala v Freistaat Bayern (Case C-85/96) [1998] ECR I-2691 and Dodl and Oberhollenzer v Tiroler Gebietskrankenkasse (Case C-543/03) [2005] ECR I-5049 considered) (paragraphs 21 to 31); 4. it followed that, since the claimant had not actually been employed in the UK following her return from Spain, she fell outside the scope of Article 13(2)(a) and no other provision of that Article caused her claim to be subject to UK law (paragraph 32).
Decision(s) to Download:	[2010] AACR 14 bv.doc