CK CG 2052 2011
| Jurisdiction | UK Non-devolved |
| Judge | Judge J. Mesher |
| Judgment Date | 03 May 2013 |
| Neutral Citation | 2013 UKUT 218 AAC |
| Subject Matter | Revisions, supersessions and reviews |
| Respondent | Secretary of State for Work and Pensions (CA) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CG 2052 2011 |
| Appellant | CK |
INDEX OF REASONS FOR DECISION
Paragraph
1 Introductory
5 FACTUAL BACKGROUND
9 THE FIRST-TIER TRIBUNAL’S DECISIONS
15 THE APPEAL TO THE UPPER TRIBUNAL
16 Official error and the exportability of the care component of DLA, AA and CA
17 Is the ECJ a “court” under the definition in regulation 1(3)?
23 Did Jauch show that there was an error of law in 2001?
36 The effect of post-Jauch case-law
39 The effect of post-Jauch legislative and administrative developments in the EU
47 Official error and the effective dates of the supersession decisions in 2001
55 Could the tribunal of 18 May 2011 have carried out a revision if there had been an official error?
70 Does EU law require the disapplication of the British rules on official error and on the time limits for appealing in revision cases?
77 Does EU law require the disapplication of the British rules on the effective date of supersessions on the ground of error of law?
81 Conclusion on the appeal to the Upper Tribunal
82 Postscript
SUMMARY OF MAIN ELEMENTS OF THE REASONS
The decisions removing entitlement to the care component of DLA and to CA in 2001 could not be revised on the application in 2008 because they did not arise from official error (the error only having been shown by the subsequent decision of the ECJ in Commission v Parliament and not by Jauch) and in any event the First-tier Tribunal of 18 May 2011 would have had no power to substitute a revision for the supersession with effect from the date of the application to reinstate benefit even if there had been an official error. Those rules are not inconsistent with the principles that the remedies and procedures provided by domestic law for the enforcement of EU rights are not less favourable than those provided for the enforcement of EU right (equivalence) and that the rules do not make the enforcement of EU rights virtually impossible or excessively difficult (effectiveness).
DECISION OF THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
The claimants’ appeals to the Upper Tribunal are disallowed. The decisions of the Liverpool First-tier Tribunal dated 18 May 2011 either involved no material error on a point of law or, if they did, in the exercise of the discretion under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 I decline to set them aside. The decisions accordingly stand.
REASONS FOR DECISION
1. There was an oral hearing of these two linked appeals on 5 February 2013, on the same day as the hearing in two other appeals, CA/2028/2011 and CDLA/2972/2011, raising related issues. The four appeals were selected as lead cases from a group of appeals, with a view to determining the major questions of law common to all the cases in the group.
2. All the claimants involved had their entitlement either to the care component of disability living allowance (DLA), to attendance allowance (AA) or to carer’s allowance (CA) removed on supersession on their leaving Great Britain to live in another Member State of the European Union at some date prior to that of the decision of the European Court of Justice (which I shall call the ECJ although it is now the Court of Justice of the European Union) in Commission of the European Communities v European Parliament and Council of the European Union, Case C-299/05, [2007] ECR I-8695 on 18 October 2007. That removal of entitlement was correct under the terms of regulation 2(1)(a) of the Social Security (Disability Living Allowance) Regulations 1991 (and the corresponding provisions for AA and CA), which make it a condition of entitlement that a claimant is ordinarily resident and present in Great Britain. I do not need to do more than mention the additional condition in relation to any day of potential entitlement that a claimant has been present in Great Britain for at least 26 weeks out of the previous 52 (the past presence test). That rule was regarded as decisive at past stages in the history of these cases, but is now agreed not to be an obstacle. The significance of Commission v Parliament is that the ECJ ruled that none of the care component of DLA, AA and CA were to be categorised as special non-contributory benefits for the purposes of article 10a of Council Regulation (EC) No 1408/71, which would have allowed the United Kingdom to restrict entitlement to claimants who were resident in the United Kingdom. Instead, those benefits were to be categorised as sickness benefits under Regulation No 1408/71, which meant that in certain circumstances the United Kingdom was required not to make entitlement dependent on the residence or presence of the claimant here. That is commonly described as meaning that the benefits are “exportable” to other Member States.
3. All the claimants applied after the decision in Commission v Parliament for their entitlement to the benefit in question to be reinstated from the date of its removal. The eventual decisions of the Secretary of State in response were that the provisions in the British legislation for revision and supersession (discussed in detail below) did not allow any alteration to the decisions removing entitlement from any date earlier than the date of the application for reinstatement, which was also the date from which an award could have been made if the application for reinstatement were regarded as a new claim. That was subject to the making of payments on an extra-statutory basis for the periods from 18 October 2007 down to the day before awards were made from the date of the application for reinstatement. Well after the dates of the decisions in the present cases, the Social Security and Child Support (Decisions and Appeals) Regulations 1999 were amended to allow a superseding decision on the ground of error of law to take effect in these particular circumstances from 18 October 2007 (Social Security (Disability Living Allowance, Attendance Allowance and Carer’s Allowance) (Miscellaneous Amendments) Regulations 2011). The First-tier Tribunals in all the cases were concerned with challenges to the refusal to award entitlement for, in practice, the period from the date of removal of entitlement to 17 October 2007 and confirmed that refusal.
4. The appeals against the First-tier Tribunal decisions raise very difficult issues of both British and European Union law. That is why the oral hearing was directed. The claimants in the present two appeals had the good fortune to be represented by Mr Jason Coppel of counsel, instructed by the Child Poverty Action Group. The claimant in CG/2053/2011 was also present at the hearing on 5 February 2013. The Secretary of State was represented by Mr Stephen Cooper, solicitor, instructed by DWP Legal Group. Between them, coupled with the earlier efforts of then unrepresented claimants, they have ensured that no stone has been left unturned. The claimants’ representatives took the opportunity that I offered to put in some further material. In a letter dated 4 April 2013 the Secretary of State declined the opportunity to put in any further material in response.
THE FACTUAL BACKGROUND
5. The claimant in the primary case out of these two appeals (CDLA/2053/2011) is a British citizen born on 22 September 1945. From now on I shall call him Mr K. In 1998, while still living in the United Kingdom, he was awarded the lower rate of the mobility component and the middle rate of the care component of disability living allowance (DLA) with effect from 3 July 1998. It appears that on a review (or possibly a renewal claim) the rate of the care component was reduced to the lowest rate with effect from 3 July 2000, but an appeal was successful and on 2 November 2000 an appeal tribunal decided that Mr K was entitled to the lower rate of the mobility component and the middle rate of the care component from 3 July 2000 for life. He had last worked in the United Kingdom on 29 May 1996 and started to receive long-term incapacity benefit from 19 October 1997, which entitlement has continued uninterrupted. He has been in receipt of state retirement pension since 22 September 2010.
6. Mr K moved with his wife (the claimant in CG/2052/2011, but who from now on I shall call Mrs K) and daughter to Spain for an indefinite period on 14 July 2001. He had given advance notice to the DLA authorities by letter of his intention to make that move. A decision notified in a letter dated 3 July 2001 (page 143) was given superseding the appeal tribunal’s decision of 2 November 2000, presumably on the ground of an anticipated relevant change of circumstances, and deciding on supersession that Mr K was not entitled to DLA from and including 15 July 2001 because he would not be residing or present in Great Britain. Mr and Mrs K raised some questions at the time about the decision of 3 July 2001 at the time, but the tribunal of 18 May 2001 found as a fact that there had been no appeal made. I consider that that finding cannot be impeached as a matter of law and I proceed on that basis. However, I return in the postscript to this decision to Mr and Mrs...
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