Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 405 (AAC)

Fecha: 05-Dic-2024

Introduction

Introduction

I allow the appeal to the Upper Tribunal, and set aside the decision of the First-Tier Tribunal (“the FTT”) dated 21 September 2021. I also re-make the decision that the Respondent should have made, which is that the Appellant, “SE”, is entitled to Carer’s Allowance (“CA”) from 12 November 2018. Since I have also set aside the FTT’s decision that SE was not entitled to CA from 18 October 2007, the effect of this is to restore SE’s entitlement to CA in the period from 18 October 2007 onwards.

The legal issues in this case are extremely complex, and they are affected by case law that has been decided since the FTT made its decision. My decision that the FTT erred in law therefore implies no criticism of the FTT. I am grateful for the various submissions received by representatives for the parties.

The Respondent’s decision in this case is dated 4 April 2019, which is approximately 5 ½ years from the date of this judgment. It took 2 ½ years to get a decision from the FTT in September 2021, and the appeal to the Upper Tribunal (“UT”) has taken a further 3 years. There are a wide range of reasons for this, reflecting the complexity of the case, allocation of the case to a District FTT judge who was then regrettably unable to hear it, adjournments for presenting officers whose involvement was later decided to be unnecessary, questions which were identified for the first time at the UT stage, some delay arising from the (valuable) involvement of the AIRE Centre, and others. The delay does not therefore reflect fault on the part of any person or party. It must nevertheless be recognised that delay of this kind is highly regrettable, and may be hard to understand from SE’s perspective. I therefore wish to extend my sympathies to her for the long wait that she has had to endure.

The case turns on whether the “competent state” for the purposes of the SE’s claim to cash sickness benefits, under Regulation (EC) No 1408/71 (“Reg 1408/71”), from 2007 to 2012) or Regulation (EC) No 883/2004 (“Reg 833/2004, thereafter) was Switzerland or the UK. The Respondent decided that it was Switzerland, because SE’s husband was in receipt of a disability pension from Switzerland. I have concluded that this is wrong, and that the UK was at all times the competent state, because:

(i)

Art 28 of Reg 1408/71 has the effect that the family member of a pensioner 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 in respect of the payment of cash sickness benefits to that person. It follows that the FTT’s decision that SE was not entitled to CA from 18 October 2007, when Reg 1408/71 was still in force, is wrong in law.

(ii)

Likewise, Art 29 of Reg 833/2004, construed in light of the Court of Appeal’s decision in Harrington v SSWP [2023] 1 WLR 3477, ensures that the family member of a pensioner 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, 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. SE’s entitlement to CA was therefore not affected by the coming into force of Reg 833/2004.