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Neutral Citation Number:	2015 UKUT 110 AAC
Reported Number:
File Number:	CA 4137 2014
Appellant:	Secretary of State for Work and Pensions(AA)
Respondent:	AK
Judge/Commissioner:	Judge E. Jacobs
Date Of Decision:	04/03/2015
Date Added:	08/04/2015
Main Category:	European Union law
Main Subcategory:	Council regulations 1408/71/EEC and (EC) 883/2004
Secondary Category:	European Union law
Secondary Subcategory:	Council regulations 1408/71/EEC and (EC) 883/2004
Notes:	Reported as [2015] AACR 27 European Union law – Regulations 883/2004 and 987/2009 – correct approach where uncertainty over competent member State for paying sickness benefit before a difference of view has arisen The claimant, a Greek national, had neither worked nor been self-employed in the UK, or paid national insurance and he received a Greek pension. In November 2013 his attendance allowance (AA) claim was dealt with under the special rules, as he had lung cancer, and was refused on the grounds that the UK was not the competent State to pay sickness benefits. The First-tier Tribunal (F-tT) upheld his appeal holding that the UK was the competent State for the payment of sickness benefits. The issues before the Upper Tribunal (UT) involved the proper application of the provisions of Regulation 883/2004 and Regulation 987/2009 to those cases involving an uncertainty over the identity of the competent member State before a difference of view had arisen between them. Held, allowing the appeal, that: 1. there was no material difference between Regulation 1408/71 and Regulation 883/2004 that would justify the argument that attendance allowance was not a sickness benefit for the purposes of Regulation 883/2004: see Commission of the European Communities v European Parliament and Council of the European Union Case C 299/05, ECR, EU:C:2007:608 (paragraphs 9 to 10); 2. the argument that section 66(1)(b) of the Social Security Contributions and Benefits Act 1992 overruled or had priority over section 65(7) was rejected. Rather, when section 65(7) applied, it overruled section 66(1)(b). A terminally ill claimant was entitled to the benefit conferred by section 66 in respect of showing disablement, but was subject to the effect of section 65(7) in so far as State responsibility was concerned (paragraphs 13 to 20); 3. Article 11(3)(e) of Regulation 883/2004 was qualified not just by the other Articles in Title II, but also by the Articles in Title III, which made “special provisions concerning the various categories of benefit”: SL v Secretary of State for Work and Pensions (DLA) [2014] UKUT 108 (AAC) followed. As Greece was already paying the claimant a pension then it was the competent State ultimately responsible for the costs of the claimant’s benefits in kind and, therefore under Article 29, for cash benefits, including attendance allowance. The same result was obtained under Article 21 (paragraphs 21 to 27); 4. if another member State was considered to be the competent State then Article 81 of Regulation 883/2004 applied and the following approach was required. First, the Secretary of State or the tribunal must decide that the UK was not the competent State for the benefit claimed. Second, there must be no evidence of a difference of view between the competing States. If, and only if, both conditions were satisfied, then the Secretary of State must submit the claim to the other potentially competent State under Article 81. If the other State decided that it was not the competent State, then there would be a difference of view and the case must then be dealt with in accordance with the procedure identified in Secretary of State for Work and Pensions v HR [2014] UKUT 571 (AAC); [2015] AACR 26 (paragraphs 28 to 32). The judge set aside the decision of the F-tT and re-made the decision to the effect that the claimant was not entitled to attendance allowance and that the Secretary of State must submit the claim to the Greek authorities.
Decision(s) to Download:	[2015] AACR 27ws.doc