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Neutral Citation Number:	2014 UKUT 571 AAC
Reported Number:
File Number:	CA 1397 2014
Appellant:	Secretary of State for Work and Pensions
Respondent:	HR (AA)
Judge/Commissioner:	Judge E. Jacobs
Date Of Decision:	18/12/2014
Date Added:	14/01/2015
Main Category:	European Union law
Main Subcategory:	Council regulations 1408/71/EEC and (EC) 883/2004
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2015] AACR 26 European Union law – Regulations 883/2004 and 987/2009 – correct approach to resolving a difference of view about competent State for paying sickness benefit The claimant was from Sweden and received a Swedish old age pension. In 2012 she came to live in the United Kingdom (UK) and claimed attendance allowance (AA). Her claim was refused and she appealed. It was argued before the First-tier Tribunal (F-tT) on the Secretary of State’s behalf that the UK was not the competent State under European Union law, as the claimant received a Swedish state pension, had not worked in the UK or been insured under its contributory benefits system. The evidence provided by the claimant’s representatives showed that the Swedish authorities had decided she was no longer covered by its insurance scheme, following her move to the UK, under Article 11 in Regulation (EEA) 883/2004. The F-tT decided that the UK was the competent State to pay AA under Article 11. The Secretary of State appealed against that decision and the issue before the Upper Tribunal (UT) was what was the correct approach to resolving a difference of view as to which was the competent State for paying a sickness benefit where neither accepted responsibility for doing so. Held, allowing the appeal, that: 1. the correct approach to resolving the issue lay within Article 6 of Regulation 987/2009, the implementing regulation for Regulation 883/2004. The effect of Article 6 was that if there was such a difference of view between two member States then sickness benefit must be paid provisionally by the State of residence, in the instant case, the UK. The paying State was only required to pay if the claimant satisfied the conditions of entitlement under domestic law and, if so, it was then protected by the right to reimbursement if the other State was eventually held responsible. If a resolution could not be secured by agreement then the matter may be referred to the Administrative Commission one month after the difference of view arose (paragraphs 15 and 23 to 24); 2. a difference of view was an objective fact – not what a particular State knew at a particular time, it was more general than “disagreement” or “dispute” – no prior discussion or argument was required, and evidence for its existence might include oral as well as documentary evidence (paragraphs 16 to 19); 3. the application of Article 6 was a separate and subsidiary issue to determining the competent State but it was important to appreciate the point at which it applied. The judge provided provisional views on how the Regulations might work in other types of case and noted how section 2 of the European Communities Act 1972 might be used to resolve some apparent difficulties concerning the date of claim and effective date provisions (paragraphs 25 to 29).
Decision(s) to Download:	[2015] AACR 26ws.doc