[2024] UKUT 405 (AAC)

The Appellant, “SE”, is a dual British and Swiss national, who is married to a dual British / Swiss national. They live in the UK. The Appellant was born on 4 March 1962.

SE has not worked in the UK, although she has acted as a carer, from to time, for her children. It is not in dispute that SE satisfied the conditions of entitlement to CA in section 70 SSCBA by reason of the care she provided to her children from time to time, subject only to the effect of section 70(4A).

SE’s husband is entitled to, and has been in receipt of, a disability pension from Switzerland since at least 1999.

In July 1999, SW made a claim for Invalid Care Allowance, on the basis that she provided care to one of her children, “C1”. She declared that her husband was in receipt of the Swiss disability pension. Her claim was granted.

At that time, CA would have been understood by the UK to be a “special non-contributory benefit” (“SNCB”) within the meaning of Reg 1408/71, and as such not to be affected in any way by Art 28 of that regulation. So the fact that the claim was granted in 1999 does not in itself say anything about the Respondent’s understanding of Art 28 of Reg 1408/71.

By reason of the grant of CA, the Appellant also become entitled to be credited with national insurance contributions from the date that she was in receipt of CA.

From 1 April 2003, Invalid Care Allowance was renamed “Carer’s Allowance” (“CA”). This did not affect SE’s entitlement.

Also in 2003, SE made a claim for CA in respect of another child, “C2”. This was granted and there was no break in her claim.

On 18 October 2007, the ECJ gave its judgment in EU Commission v Council and Parliament of the EU (Case C-299/05), [2007] ECR I-8696, holding that CA (along with Disability Living Allowance (“DLA”) and Attendance Allowance (“AA”)) were not SNCBs but were cash sickness benefits. However, rightly or wrongly, no point was taken by the Respondent that this in any way affected SE’s entitlement to CA at this time. Likewise no point was taken that the coming into force of Reg 83/2004 in 2010 or 2012 affected SE’s claim.

SE submitted a further claim in respect of another child, “C3”, from 12 November 2018.

On 4 April 2019, the Respondent made a decision was made that SE was not entitled to CA from 12 November 2018:

SE disagreed, and sought to challenge that decision, eventually bringing an appeal to the First-tier Tribunal (“FTT”).

On the appeal, the Respondent maintained her position that SE was not entitled to CA from 12 November 2018, but further submitted that entitlement to CA had ceased from an earlier date, namely 18 October 2007, and invited the FTT to “substitute” a decision to that effect. No reference is made to the fact that at this stage, Reg 1408/71 was still in force in 2007. The basis for substituting the new date was said to be:

The FTT hearing was on 16 September 2021, and its reasons are dated 21 September.

The FTT made two main findings, namely:

The FTT did not give any reasons as to whether it should, in addition to refusing the appeal in respect of the date of 18 November 2018, go further and substitute a new decision that SE was not entitled to CA from 18 October 2007. It appears to have taken for granted that its conclusion was valid for all periods. Its decision is recorded (FTT 3) as being that SE “is not entitled to Carer’s Allowance from 18 October 2007.

The Appellant sought permission to appeal to the Upper Tribunal (UT), relying principally on the argument that there was a dispute between the UK and Switzerland so as to engage Art 6(2) of the Implementing Reg. Permission to appeal was refused by the FTT but was granted by Upper Tribunal Judge Jacobs on 25 July 2022, who observed that he was not particularly persuaded by the ground of appeal relating to Art 6(2) of the Implementing Regulation but that he was concerned about the fact that the FTT had removed entitlement from 2007, since at this point Reg 1408/71 in force. He drew attention, in particular, to Art 28 of Reg 1408/71.

In a response drafted by counsel, Mr Yaaser Vanderman, dated 14 October 2022, the Respondent submitted that:

Following an extension of time for the Appellant to respond, Judge Jacob gave a further direction on 3 May 2023, making various observations but also drawing attention to the decision of the Court of Appeal in Harrington, and asking whether the Respondent maintained her position that Switzerland was the competent state under Reg 883/2004 in light of that judgment. He also expressed some concerns about the way in which the Respondent had invited him to deal with the period from 2007 to 2018.

Mr Vanderman made a further written submission for the Respondent on 9 June 2023, submitting that Harrington, which concerned Art 21 of Reg 883/2004, should be distinguished in relation to Arts 24, 25 and 29.

Further directions followed, and the Appellant was given permission to rely upon a submission from the AIRE Centre, which was provided on 14 March 2024. The AIRE Centre submitted, essentially, that:

Mr Barney McCay, counsel, made further submissions on behalf of the Respondent dated 19 August 2024, largely directed at the difference in views issue. In addition however he very properly drew attention to some Northern Ireland case law in which Commissioner Stockman had reached conclusions that were adverse to the Respondent’s argument. I will return to these cases briefly below.

I have not set out the factual background of communications with the Swiss authorities that is relied upon by SE for the purposes of Art 6(2) of the Implementing Regulation because I do not think I need to deal with that issue to decide the appeal.