[2024] UKUT 405 (AAC)

CA Entitlement from 12 November 2018 onwards (Reg 833/2004)

I therefore turn to the question of which was the competent state under Title III of Reg 833/2004, for the purposes of deciding whether SE’s CA entitlement was rightly determined on 12 November 2018.

I will again start by assuming that SE’s husband was a pensioner for whom the competent state, and the legislation applicable, was Switzerland.

On the question of whether SE is an “insured person”, it is necessary to apply the definition in Art 1, set out above, under which SE must satisfy “the conditions required by the legislation of the Member States competent under Title II to have the right to benefits”. In short, to be an insured person, one must be entitled to benefits, or the benefit in question, under domestic law, form the state “competent under Title II”. That seems clear but in any event it is the approach taken by Lewis LJ in Harrington, at ¶40.

There is no doubt that the legislation applicable to the Appellant under Title II is that of the UK, under Art 11(3)(e). None of the cascade of provisions in Arts 11(3)(a) to (d) apply to her, or produce any different result. The feature of Art 13(2)(f) of Reg 1408/71 that I have identified above, that it applies where the legislation of a Member State ceases to be applicable, does not appear in Art 11(3)(e).

In Konevod v SSWP [2020] 1 WLR 5234, Sir Stephen Richards took the view that the starting point in considering what is the “competent Member state” is that it is the state of applicable legislation under Title II (see ¶41), and I note that Lewis LJ took the same approach in Harrington (¶41). This is binding on me.

The alternative approach to identifying the competent state would be to try to work through the definitions of competent authority, competent institution and competent state in Arts 1(m), (q) and (s). On reflection, and even if Konevod were not binding on me, I would be inclined to accept that this is not the right approach. Those definitions are essentially self-referential, so as to clarify the relationship between competent authority, institution and state. They are not necessarily of any assistance in identifying the competent state for a particular person. For example, whereas Art 1(m) says that the “competent authority” is the authority designated by the Member State concerned, so that is looking at what is the competent authority for a given Member State, not what is the competent authority for a given person. The definition in Art 1(q)(iii) likewise deals with identifying the “competent institution” for “the member state concerned”, and relied on the previous definition of competent authority. In any case, as in Konevod (see ¶43), even if one took as one’s starting point the definition in Art 1(q)(i), the competent institution / state for SE would be the UK, because that is where she, as opposed to her husband, is insured.

It follows that the UK is the competent state under Title II, subject to any special rules under Title III which alter that in relation to cash sickness benefits. The question is therefore, as in Harrington, whether there is any provision in Title III which operates “to take priority over the applicability of the legislation of the United Kingdom” to SE (Harrington ¶43).

For reasons which are similar to those given by Lewis LJ, I do not think that these provisions, and in particular Art 29, do operate as a “rule of priority” so as to exclude SE’s entitlement. To explain this I will seek to keep as closely as possible to the structure of the reasons given by Lewis LJ in Harrington, allowing for the differences of language and history of the relevant provisions.