Social Security Case Law - Spring 2025

Headnote

Where the UK is the state of residence, it can remain the competent state for cash sickness benefits even when the family member of a claimant is in receipt of a pension from a different EU state.

Background

The appellant, a dual UK and Swiss national residing in the UK, had been in receipt of Invalid Carer’s Allowance since 1991 while her husband, also a dual UK and Swiss national, received a disability pension from Switzerland. The appellant claimed Invalid Carer’s Allowance as she provided care to her child C1 – which was recognised at the time as a ‘special non-contributory benefit’ within EU Reg 1408/71.

Invalid Carer’s Allowance was renamed in 2003 and became Carer’s Allowance. At this point, the appellant’s claim had changed, and she now made a claim as she was provided care to one of her other children, C2. There was no break in her claim.

In 2007, the European court of Justice, gave its judgement that determined that Carer’s Allowance and other disability benefits were not ‘special non-contributory benefits, but were instead  ‘cash sickness benefits’, see the judgement of EU Commissioner v Council of Parliament of the EU [2007] ECR I-8696. However, no action was taken against the appellant when this ruling was implemented in either the UK (2010) or Switzerland (2012).

Later in 2018, the appellant submitted a further claim for Carer’s Allowance in respect of another child, C3. However, on this occasion the Secretary of State for Work and Pensions decided that she was not entitled to make a claim for Carer’s Allowance from her application date in November 2018, as the UK is not the competent state for payment of cash sickness benefits.

The appellant submitted an appeal to the First-tier Tribunal who determined that Switzerland was the competent member state, and that the appellant was not entitled to Carer’s Allowance since October 2007.

Legal Issue

The Upper Tribunal was asked to determine whether the First-tier Tribunal had erred in law when deciding that the UK was not the competent state for the payment of cash sickness benefits to the appellant.

The issue was whether Art 28 of Reg 1408/71, and / or Art 29 of Reg 833/2004, operate as a rule of priority to displace entitlement to sickness benefits under domestic law, or whether they only operate, as Harrington held that Art 21 does, in cases where the family member has no entitlement in the state of residence.

Decision

Judge Buley allowed the appeal and found that the appellant was entitled to make a claim for Carer’s Allowance in the United Kingdom from October 2007 noting:

1. Art 28 of Reg 1408/71 has the effect that the family member of a pension may be entitled to be paid cash sickness benefits by the state that is responsible for the payment of a pension, where they are not entitled to be paid such benefits by the state in which they are resident. It does not, however, have the effect that, if the family member is otherwise entitled to be paid cash sickness benefits by the state of residence, that entitlement is removed, or the state of residence ceases to be the competent state for the payment of cash sickness benefits.
2. Likewise, Art 29 of Reg 833/2004, considered in light of Harrington, ensure that the family member of a pensioner is entitled to cash sickness benefits by the state that is responsible for the pension, where they are not entitled to be paid such benefits by the state in which they are resident, but does not have the effect of removing such entitlement if the family member is otherwise entitled to be paid such benefits from the state of residence.

The judgement noted the case of Harrington v SSWP [2023] 1 WLR 3477, in which Art 21 of Reg 833/1004, found that sickness benefits for ‘injured person’ (other than pensioners) and their family members, did not operate as to exclude any domestic entitlement to sickness benefits.

Relevant Legislation

• Regulation (EC) No 1408/71
• Regulation (EC) No 883/2004
• S70 Social Security Contributions and Benefits Act 199

Relevant Case Law

• Harrington v SSWP [2023] 1 WLR 3477
• Konevod v SSWP [2020] 1 WLR 5234
• SP v DC (PIP) [2023] NICom 23
• IP v DC (AA) [2023] NICom 27