Secretary of State for Work and Pensions CPC 3281 2014
| Jurisdiction | UK Non-devolved |
| Judge | Judge C G Ward |
| Judgment Date | 22 October 2015 |
| Neutral Citation | 2015 UKUT 583 AAC |
| Subject Matter | European Union law |
| Respondent | HH (SPC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CPC 3281 2014 |
| Appellant | Secretary of State for Work and Pensions |
IN THE UPPER TRIBUNAL Case No. CPC/3281/2014
ADMINISTRATIVE APPEALS CHAMBER
BEFORE UPPER TRIBUNAL JUDGE WARD
Attendances:
For the Appellant: Mr S Cooper, Solicitor
For the Respondent: Mr P Carey, Welfare Rights Officer, Cornwall County Council
Decision: The appeal by the Secretary of State succeeds. The decision of the First‑tier Tribunal sitting at Truro on 19 February 2014 under reference SC247/14/00007 involved the making of an error of law and is set aside. Acting under section 12(2)(b) of the Tribunals, Courts and Enforcement Act 2007 and having made further findings of fact, I remake its decision in the following terms:
The decision by the Secretary of State dated 24 September 2013 refusing the claimant’s claim for state pension credit from and including 2 September 2013 on the ground that he lacked the right to reside is upheld.
REASONS
1. This is an appeal, with permission given by a judge of the First-tier Tribunal, by the Secretary of State against the decision of the First‑tier Tribunal which had allowed the claimant’s appeal against the Secretary of State’s decision dated 24 September 2013 which had refused his claim for state pension credit on the ground that he lacked the right to reside. The relevant provisions are to be found in regulation 2 of the State Pension Credit Regulations 2002 and need not be set out here.
2. The claimant was born on 11 September 1942 and is a national of Denmark. He had lived in the United Kingdom between 1996 and 2000 but had most recently returned to it, having been working abroad, in 2007, at which point he had a substantial amount of capital. The First‑tier Tribunal found that he met both limbs of the test in Article 7(1)(b) of Directive 2004/38, namely:
“1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:
(a) ...
(b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State;
...”
3. I need not dwell on whether the tribunal was correct to find that the claimant had sufficient resources for the purposes of Article 7(1)(b) as its decision insofar as it related to comprehensive sickness insurance (“CSI”) was in error of law for the reasons in [6] below.
4. As a preliminary, however, the tribunal had recorded in its decision notice that the claimant had completed a continuous period of 5 years’ lawful residence on 2 January 2012. In the statement of reasons the judge purported to “revise and correct” those dates to a 5 year period ending on 11 September 2012. No review was carried out. The matter is a substantive change, not the correction of a slip, and relates to a central issue in the appeal. The Secretary of State submitted (and Mr Carey for the claimant did not dissent) that purporting to make such a change without having carried out a review was itself an error of law and I so find.
5. Turning to the substance, the First‑tier Tribunal found that the claimant was entitled to receive a Danish state pension from 11 September 2007, his 65th birthday, even though he had not claimed one, and that as the United Kingdom would then have been entitled to rely on Article 28a of Regulation 1408/71 to obtain reimbursement from Denmark of the costs of any medical treatment the claimant might have required, the claimant had sufficient CSI: see SG v Tameside MBC (HB) [2010] UKUT 243 (AAC). Article 28a provided:
“Where the pensioner entitled to a pension under the legislation of one Member State, or to pensions under the legislations of two or more Member States, resides in the territory of a Member State under whose legislation the right to receive benefits in kind is not subject to conditions of insurance or employment, nor is any pension payable, the cost of benefits in kind provided to him and to members of his family shall be borne by the institution of one of the Member States competent in respect of pensions, determined according to the rules laid down in Article 28(2), to the extent that the pensioner and members of his family would have been entitled to such benefits under the legislation administered by the said institution if they resided in the territory of the Member State where that institution is situated.”
6. However, the First‑tier Tribunal’s premise was wrong in law. Foreign law is to be proved by evidence. There was no evidence before the First‑tier Tribunal from which it could conclude that the claimant was entitled to a Danish pension from the age of 65 at all and in particular that he was entitled from that age despite having not made a claim for one, nor as to his entitlement under Danish law to healthcare as a “benefit in kind”.
7. I would add that there were also clear indications in the bundle that there was more relevant evidence available than had been included. The Secretary of State was required by rule 24(4) to include in his submission a copy of relevant documents and this ought to have included the letter in his possession dated 27 November 2013 from Utbetaling Danmark, the Danish body responsible for payment of state pensions. The First‑tier Tribunal ought to have followed up this obvious evidential gap. I do not need to decide whether I would permit the Secretary of State in what is an appeal by him in effect to rely on an error of law by the First‑tier Tribunal which had its origins in his own default as the tribunal’s decision was in any event in error of law for the reasons given in paragraphs 4 and 6 and it is on those grounds that it is set aside.
8. There was further evidence before me. The Secretary for State relies on the words in bold above, to submit that it was necessary to establish the extent to which the claimant would have been entitled to the provision of healthcare in Denmark during the period 11 September 2007 to 1 January 2010. Uncontradicted evidence obtained from the Danish authorities showed that the claimant would not have been entitled to healthcare in Denmark during that period, because he was not under Danish law entitled to a pension until the 1st of the month following his application for it. From that it followed that Denmark would not have been obliged to bear the costs of any benefits in kind provided to the claimant by the UK during that time.
9. From 1 January 2010, when his Danish pension came into payment, the Secretary of State accepts that that the claimant did have CSI, until with effect from 11 July 2011 he began to receive a very small UK state retirement pension. At that point the claimant encountered the provisions of Article 23 of Regulation 883/2004 which had come into force on 1 May 2010. It provides:
“A person who receives a pension or pensions under the legislation of two or more Member States, of which one is the Member State of residence, and who is entitled to benefits in kind under the legislation of that Member State, shall, with the members of his family, receive such benefits in kind from and at the expense of the institution of the place of residence, as though he were a pensioner whose pension was payable solely under the legislation of that Member State. “
10. In Directions dated 23 June 2015 I identified that the apparent consequence was the UK lost its ability to recoup the cost of medical treatment from Denmark, with a potential negative effect on the claimant’s ability to establish a right to reside (as the principle in SG would no longer apply). This would put him, despite his links with the UK manifested through the past work in the UK which was reflected in the contributions record which entitled him to a (small) UK retirement pension, in a worse position than a person with no such links. Nonetheless, though it might be thought surprising, this appeared to be the consequence of the co‑ordination system for which Regulation 883/2004 provides.
11. In a response to the Directions, on 14 August 2015 Mr Carey: (a) conceded that the evidence from Denmark was “unequivocal”, (b) accepted that the wording of Article 23 of Regulation 883/2004 was “unequivocal but seem[ed] to produce a paradoxical result” but (c) sought to argue that the tribunal’s decision should be affirmed on wholly new grounds, namely that at the material time the claimant had been self‑employed by reason of writing a book of which particulars, and some evidence, were given.
12. On 24 August I gave permission to introduce point (c) and directions for the filing of evidence. Those Directions also required Mr Carey either to abandon or develop any argument that it would not be proportionate to enforce the requirement for CSI against the claimant: that point was then abandoned.
13. By a further submission faxed on 30 September Mr Carey sought to a degree to depart from his earlier concession at (a) and (b) above. I indicated that I would require an application to be made at the oral hearing for permission to do so and that I would only entertain it after I had made a ruling on the claimant’s asserted self‑...
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