[2024] UKUT 405 (AAC)

Art 21 conferred entitlement on H to cash sickness benefits, including DLA or its analogue in Belgium, from Belgium, as the family member of her father, for whom the competent state was Belgium.

H’s entitlement to cash sickness benefits from the UK, which she would otherwise enjoy as an insured person in the UK to whom UK legislation was applicable under Art 11(3)(e), was therefore excluded, because the UK was not the competent state for the payment of such benefits to her and / or because that is the effect of Art 21 and / or the principle of “single applicable legislation”.

I accept that the basic principle is that there is to be a single member state whose legislation is applicable. That is inherent in the opening words of article 11 of, and recital (35) to, the Regulation. I do not, however, accept that the provisions of article 21 operate to take priority over the applicability of the legislation of the United Kingdom to the appellant, as an insured person, as that legislation is applicable to her by virtue of article 11(3)(e). …

The wording and purpose of Art 21 was to prevent an insured person and their family members from being denied cash benefits because they are resident in a state other than the competent state. It was not to displace the entitlement they might otherwise have to benefits from the state of residence, where they were subject to the legislation of that state in accordance with Article 11(3). Harrington, ¶44.

The history of the legislative provisions, and in particular Art 19 of Reg 1408/71, which was the predecessor to Art 21 of Reg 833/2004, further supported this conclusion. Lewis LJ placed particular weight on the fact that, under Art 19 of Reg 1408/71, a worker or their family member would be entitled to cash benefits from the competent state “in so far as they are not entitled to such benefits under the legislation of the state in which they reside”. Lewis LJ said that “there is nothing to indicate that the European Union legislature [in enacting Reg 833/2004] wished to bring about a significant change in that position”. Harrington, ¶¶45-50, especially ¶¶48-9.

The approach that he preferred would support the principle of free movement, whereas that which the Respondent argued for would undermine it (¶¶51-2).

These considerations were not displaced by the importance of the single legislative system, which would be respected by holding that the competent state in a case such as this was the state of residence (¶53-4).