Social Security Case Law - Spring 2024

Headnote

The UK is a competent State for PIP daily living component, despite the Applicant receiving an Invalidity Pension from another Member State.

Background

The Applicant was born in Northern Ireland and was a UK national.  The Applicant had severe disabilities and worked in Northern Ireland for some years and then worked in the Republic of Ireland for nine months.  Thereafter, the Applicant stopped work due to her severe disabilities.  The Applicant was awarded an Invalidity Pension (IP) by the Republic of Ireland as she was permanently incapable of work and met the contribution conditions.

The Applicant then returned to live in Northern Ireland and retained the entitlement to the Invalidity Pension paid by the Republic of Ireland.  This was because the Invalidity Pension fell within Article 7 of EU Regulation 88/2004 – the cash benefit ‘exportability’ rules.

In Northern Ireland, the Applicant made a claim for and was awarded DLA, including the daily living and mobility component.  In 2018/19 the Applicant made a claim for PIP as her DLA award coming to an end.  The Applicant met the conditions for an award of PIP – both the daily living and mobility component but the Department of Communities decided that the UK was not the competent state for payment of sickness benefits under the provision of Article 11 of EU Regulation 88/2004.

The Applicant requested a reconsideration but the decision was not revised, and the Applicant was unsuccessful in an appeal.  Sadly, the Applicant died, and her appointee applied to the Social Security Commissioner for leave to appeal.

Legal Issue

The Commissioner had to decide whether the UK is the competent state for the payment of PIP to the Applicant as a cash sickness benefit for the purposes of Chapter 1 of Title III of Regulation (EC) 883/2004, in the context of Article 11 of EU Regulation 88/2004 which requires Applicants to be subject to the legislation of a single Member State only.

Decision

The Commissioner allowed the appeal, with the effect that the UK is competent for the payment of the daily living component of PIP to the Applicant. (para 3).

The Commissioner accepted:

• that the Applicant engaged the scope of Regulation 883/2004 (Article 2) as she had been subject to the legislation of one or more Member States.
• The Applicant fell within the material scope (Article 3) as the case involved sickness benefits and invalidity benefits.
• The Applicant was covered by the exportability provisions of Article 7 to enable payment of IP by the Republic of Ireland after she returned to Northern Ireland.

The Commissioner then had to decide if the UK was the competent state for paying sickness benefit in the context of Article 11 which requires claimants to be subject to the legislation of a single Member State.

The Commissioner decided that the UK competence to pay sickness benefits was not prevented by the Applicant’s entitlement to an Invalidity Pension from another Member State:

‘By Article 11(2), it is clear that the Applicant does not fall to be considered as receiving cash benefits because or as a consequence of their activity as an employed or self employed person and therefore considered to be pursing the said activity.  This is because this category does not apply to invalidity, old age or survivors pensions.’ (para 53).

The Commissioner further considered that Article 11(3)(a) – (d) relating to groups including those who are employed or self employed persons in a Member State or receiving unemployment benefits under the legislation of the Member State of residence, do not apply:

‘the Applicant does not fall into any of those categories.  It appears to me therefore that she falls into the category 11(3)( e), namely ‘any other person to whom subparagraphs (a) to (d) do not apply’.  Such persons ‘shall be subject to the legislation of the Member State of residence, without prejudice to other provisions of this Regulation guaranteeing him benefits under the legislation of one or more Member States.’ (para 54).

The Commissioner clarifies the expression ‘without prejudice to’:

‘The expression ‘without prejudice to’ in the particular context means ‘without affecting.’  Thus, the determination under Article 11(3)( e) that an individual shall be subject to the legislation of the Member State of residence does not affect other provisions guaranteeing benefits under the legislation of other Member States.’ …..As I understand it, the expression ‘without prejudice to’ provides expressly that this position is not affected by the Applicant’s entitlement to IP from the Republic of Ireland.’ (para 55 and 56).

The Commissioner then considers whether the provisions of Chapter 1 of Title III of Regulation (EC) 883/2004 which set out provisions governing sickness benefits can engage in such a way as to override the effect of Article 11(3) ( e).

‘There have been suggestions in previous editions of the Sweet and Maxwell commentary on Regulation 883/2004 that Article 11 was qualified not just by the other articles in Title II but also by the Articles in Title III, based on cases such as SSWP v AK [2015] UKUT 110.  However, Judge Jacobs in paragraph 8 of SSWP v TG [2019] UKUT 86 and in paragraph 7 of GK v SSWP [2019] UKUT 87 had departed from that view.’ (para 58)

The Commissioner confirmed that he agrees with Judge Jacobs and cites the relevant case law on the position: (Konevod v Secretary of State for Work and Pensions [2020] EWCA Civ 809, Harrington v Secretary of State for Work and Pensions [2023] EWCA Civ 433.  The Commissioner states:

‘..Title II provides the rules identifying the competent Member State.  This is without prejudice to entitlement to particular categories of benefit being established separately under the rules of Title III in relevant circumstances, but these provisions do not affect the determination of the identity of the competent Member State.  I consider that (the Tribunal) has not correctly applied the decision of the Court of Appeal in England and Wales in Konevod, which was before it.  Whereas that decision is not binding on a tribunal in Northern Ireland – or on a Commissioner for that matter – I consider that a Tribunal or Commissioner should normally follow the decision of the Court of Appeal in England and Wales, unless there are good reasons for departing from it.  Therefore, I allow the appeal and I set aside the decision of the appeal Tribunal.  (paras 61 – 63).