Secretary of State for Work and Pensions v Tolley CDLA 735 2009
| Jurisdiction | UK Non-devolved |
| Judge | Three-Judge Panel / Tribunal of Commissioners |
| Judgment Date | 29 July 2015 |
| Neutral Citation | 2012 UKUT 282 AAC |
| Subject Matter | DLA, AA, MA: general |
| Respondent | LT |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CDLA 735 2009 |
| Appellant | Secretary of State for Work and Pensions v Tolley |
[2017] AACR 40
(Linda Tolley (deceased) v Secretary of State for Work and Pensions
Case C-430/15)
CJEU R Silva de Lapuerta (President of the Chamber), J C Bonichot, A Arabadjiev (Rapporteur), C G Fernlund and S Rodin, Judges
1 February 2017
European Union law – Council Regulation (EEC) 1408/71 – whether care component of DLA exportable where claimant leaves United Kingdom permanently
Mrs Tolley, a UK citizen, was awarded the care component of disability living allowance (DLA) in July 1993 having previously paid or been credited with national insurance contributions for the preceding 26 years. She and her husband moved to Spain on 5 November 2002 and in 2007 the Department for Work and Pensions decided that she was not entitled to DLA from 6 November 2002 because she was no longer resident in the UK. Mrs Tolley appealed against that decision, arguing that it was incompatible with Council Regulation (EEC) No 1408/71 which provided that certain benefits, including those categorised as an “invalidity benefit”, were fully portable within the EU and that she was also an “employed person” for the purposes of the Regulation having been insured against the risk of old age under her national insurance contributions. The Secretary of State stated that Mrs Tolley could not be an employed person and that UK domestic legislation no longer applied to her after she left the UK. The First-tier Tribunal upheld Mrs Tolley’s appeal. Shortly afterwards she died and her husband was appointed to continue the proceedings. The Upper Tribunal rejected the Secretary of State’s subsequent appeal, it held that Mrs Tolley was an employed person as she had been insured against the risk of old age by reason of her national insurance contributions. The Court of Appeal upheld that decision. The Secretary of State appealed to the Supreme Court and it requested a preliminary ruling from the European Court of Justice (ECJ) on the interpretation of Council Regulation No 1408/71 and in particular (1) whether the care component of DLA was properly classified as an invalidity and not a cash sickness benefit, (2) whether Mrs Tolley had ceased to be subject to the legislation of the UK following her move to Spain and (3) whether the broad definition of an employed person in Dodl and Oberhollenzer (C‑543/03, EU:C:2005:364) applied when she had ceased all occupational activity before moving to Spain
Held, that:
- a benefit such as the care component of DLA was a sickness benefit for the purposes of Council Regulation No 1408/71 (paragraph 55)
- Article 13(2)(f) of Regulation No 1408/71, in the version amended and updated by Regulation No 118/97, as amended by Regulation No 307/1999, must be interpreted as meaning that the fact that a person had acquired rights to an old-age pension by virtue of the contributions paid during a given period to the social security scheme of a Member State does not preclude the legislation of that Member State from subsequently ceasing to be applicable to that person. It was for the national court to determine, in the light of the circumstances of the case before it and of the provisions of the applicable national law, when that legislation ceased to be applicable to that person (paragraph 69)
- Article 22(1)(b) of Regulation No 1408/71 must be interpreted as preventing legislation of the competent State from making entitlement to an allowance such as that at issue in the main proceedings subject to a condition as to residence and presence on the territory of that Member State. Article 22(1)(b) and Article 22(2) of Regulation No 1408/71 must be interpreted as meaning that a person in a situation such as that at issue in the main proceedings retained the right to receive the benefits referred to in Article 22(1)(b) after transferring their residence to a Member State other than the competent State, provided that they had obtained authorisation for that purpose (paragraph 93)
JUDGMENT OF THE COURT
(First Chamber)
(Advocate General’s Opinion given 5 October 2016)
Richard Drabble QC and Tim Buley, Barrister, instructed by S Clarke, Solicitor, appeared for Mrs Tolley (deceased, acting in the proceedings by her personal representative).
M Holt and C Crane, acting as Agents, B Kennelly QC and D.Blundell, Barrister, appeared for the United Kingdom Government.
P Wennerås, M Schei and C Rydning, acting as Agents, appeared for the Norwegian Government.
D Martin and J Tomkin, acting as Agents, appeared for the European Commission.
Judgment
1. This re quest for a preliminary ruling concerns the interpretation of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, in the version amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, page 1), as amended by Council Regulation (EC) No 307/1999 of 8 February 1999 (OJ 1999 L 38, page 1) (“Regulation No 1408/71”).
2. The request has been made in proceedings between the Secretary of State for Work and Pensions (“the Secretary of State”) and Mrs Tolley, who died on 10 May 2011 and is acting in the main proceedings by her husband as her personal representative, concerning the withdrawal of her entitlement to the care component of disability living allowance (“DLA”) on the ground that she no longer satisfied the conditions as to residence and presence in Great Britain.
Legal context
EU law
3. Regulation No 1408/71 has been replaced by Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, page 1, and corrigendum at OJ 2004 L 200, page 1), which became applicable on 1 May 2010. However, in view of the date of the facts of the main proceedings, those proceedings remain governed by Regulation No 1408/71.
4. Article 1 of Regulation No 1408/71 provides:
“For the purpose of this Regulation:
(a) ‘employed person’ and ‘self-employed person’ mean respectively:
(i) any person who is insured, compulsorily or on an optional continued basis, for one or more of the contingencies covered by the branches of a social security scheme for employed or self-employed persons or by a special scheme for civil servants;
(ii) any person who is compulsorily insured for one or more of the contingencies covered by the branches of social security dealt with in this Regulation, under a social security scheme for all residents or for the whole working population if such person:
– can be identified as an employed or self-employed person by virtue of the manner in which such scheme is administered or financed, or,
– failing such criteria, is insured for some other contingency specified in Annex I under a scheme for employed or self-employed persons, or under a scheme referred to in (iii), either compulsorily or on an optional continued basis, or, where no such scheme exists in the Member State concerned, complies with the definition given in Annex I;
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(o) ‘competent institution’ means:
(i) the institution with which the person concerned is insured at the time of the application for benefit;
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