[2024] UKUT 405 (AAC)

In her submission to the FTT dated 15 July 2020, the Respondent made the point that SE has “always been clear about her husband’s disability pension” so that “any overpayment is not recoverable”. In those circumstances, on the Respondent’s approach, the question of whether the Appellant’s entitlement to CE should have ended in 2007, rather than 2018, was always “academic” in the sense that she now uses that term. The Respondent nevertheless invited the FTT to substitute this purely academic correction to the decision that she herself had made concerning entitlement from 2018.

That seems to me be an unattractive starting point for the Respondent to now submit to the UT that it should decline to consider this issue further, now that the Respondent has secured a ruling from the FTT that CE entitlement ended in 2007. Why, if it was always academic, should the Appellant and the FTT have been put to the trouble of addressing this issue at all?

It seems to me even more unattractive for the Respondent to take this stance that the UT should not consider the issue, in circumstances where her alternative position is that she does not otherwise maintain the position that Switzerland was the competent state from 2007-2018. I think I am entitled to take that as a positive concession that Switzerland was not the competent state under Reg 1408/71, perhaps for the reasons hinted at by Judge Jacobs in his direction of 30 July 2022. But if that is the position, albeit no reasons for it are given, I think that it would be unsatisfactory to leave the FTT’s decision on this part of the case in place.

In any event, I am not satisfied that it is right to describe the question of entitlement from 2007 to 2018 as an academic question, for two reasons:

A further important point is that on no view does the issue relating to 2007-2018 render this appeal as a whole academic. I must determine the issue of SE’s entitlement to CA from 12 November 2018 in any event, so this is not a case where I would be able to dispose of the appeal as a whole on the basis that this particular issue is academic, even if I considered that it was. I think that the Zoolife line of cases is primarily directed to circumstances where a case as a whole is academic, so that the court need not be troubled to resolve the issues at all. I am inclined to think that the court’s discretion is broader in cases where the academic point does not dispose of the proceedings, especially where it may have some bearing on the live issues. In this case, if I were to allow the appeal from 2018 onwards, I will have to remake the decision or remit it, in which case it would be particularly odd to leave the decision relating to the earlier period in place in the face of what amounts to a concession by the Respondent that it is wrong.

Finally, and critically, I do not think it would be right for me to deal with the question of Reg 833/2004, and the impact of Harrington, without considering what the position would have been under Reg 1408/71, bearing in mind the reliance placed by Lewis LJ on the predecessor to Art 21 of Reg 833/2004 in Reg 1408/71. I think that I must take the same approach, which means that I will need to consider what the position would have been under Reg 1408/71 in any event. Having done so, and taken with the Respondent’s apparent concession of this issue, it would not be appropriate to leave the decision re 2007-2018 in place if I have in effect concluded that it was wrong.

In those circumstances, I doubt whether it is correct to describe the 2007-2018 issue as academic, and even if it were, I consider that I should exercise my discretion to decide it. I reach that conclusion without relying on the Zoolife criteria (wider public interest, large number of similar cases anticipated, etc), which do not impose a straitjacket on the exercise of the court’s discretion to consider academic cases. I note however that consideration of Reg 1408/71 does have implications for Reg 833/2004, which I think can fairly be described as being of wider public interest, and that at least on Reg 833/2004, other cases may be anticipated. I do not think that the issue is fact-sensitive – it is determined by the correct interpretation of Art 28 of Reg 1408/71.