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Neutral Citation Number: 2012 UKUT 282 AAC
Reported Number:
File Number: CDLA 735 2009
Appellant: Secretary of State for Work and Pensions v Tolley
Respondent: LT
Judge/Commissioner: Three-Judge Panel / Tribunal of Commissioners
Date Of Decision: 29/07/2015
Date Added: 05/09/2012
Main Category: DLA, AA, MA: general
Main Subcategory: other
Secondary Category:
Secondary Subcategory:
Notes: Preliminary ruling of the European Court of Justice reported as [2017] AACR 40 European Union law – Council Regulation (EEC) 1408/71 – whether care component of DLA exportable where claimant leaves United Kingdom permanently Mrs Tolley, a UK citizen, was awarded the care component of disability living allowance (DLA) in July 1993 having previously paid or been credited with national insurance contributions for the preceding 26 years. She and her husband moved to Spain on 5 November 2002 and in 2007 the Department for Work and Pensions decided that she was not entitled to DLA from 6 November 2002 because she was no longer resident in the UK. Mrs Tolley appealed against that decision, arguing that it was incompatible with Council Regulation (EEC) No 1408/71 which provided that certain benefits, including those categorised as an “invalidity benefit”, were fully portable within the EU and that she was also an “employed person” for the purposes of the Regulation having been insured against the risk of old age under her national insurance contributions. The Secretary of State stated that Mrs Tolley could not be an employed person and that UK domestic legislation no longer applied to her after she left the UK. The First-tier Tribunal upheld Mrs Tolley’s appeal. Shortly afterwards she died and her husband was appointed to continue the proceedings. The Upper Tribunal rejected the Secretary of State’s subsequent appeal, it held that Mrs Tolley was an employed person as she had been insured against the risk of old age by reason of her national insurance contributions. The Court of Appeal upheld that decision. The Secretary of State appealed to the Supreme Court and it requested a preliminary ruling from the European Court of Justice (ECJ) on the interpretation of Council Regulation No 1408/71 and in particular (1) whether the care component of DLA was properly classified as an invalidity and not a cash sickness benefit, (2) whether Mrs Tolley had ceased to be subject to the legislation of the UK following her move to Spain and (3) whether the broad definition of an employed person in Dodl and Oberhollenzer (C 543/03, EU:C:2005:364) applied when she had ceased all occupational activity before moving to Spain Held, that: 1. a benefit such as the care component of DLA was a sickness benefit for the purposes of Council Regulation No 1408/71 (paragraph 55); 2. Article 13(2)(f) of Regulation No 1408/71, in the version amended and updated by Regulation No 118/97, as amended by Regulation No 307/1999, must be interpreted as meaning that the fact that a person had acquired rights to an old-age pension by virtue of the contributions paid during a given period to the social security scheme of a Member State does not preclude the legislation of that Member State from subsequently ceasing to be applicable to that person. It was for the national court to determine, in the light of the circumstances of the case before it and of the provisions of the applicable national law, when that legislation ceased to be applicable to that person (paragraph 69); 3. Article 22(1)(b) of Regulation No 1408/71 must be interpreted as preventing legislation of the competent State from making entitlement to an allowance such as that at issue in the main proceedings subject to a condition as to residence and presence on the territory of that Member State. Article 22(1)(b) and Article 22(2) of Regulation No 1408/71 must be interpreted as meaning that a person in a situation such as that at issue in the main proceedings retained the right to receive the benefits referred to in Article 22(1)(b) after transferring their residence to a Member State other than the competent State, provided that they had obtained authorisation for that purpose (paragraph 93).
Decision(s) to Download: CDLA 0735 2009-00.doc CDLA 0735 2009-00.doc  
[2017] AACR 40ws.doc [2017] AACR 40ws.doc