AH v Secretary of State for Work and Pensions (DLA): [2020] UKUT 53 (AAC) ; [2023] AACR 8
Upper Tribunal Administrative Appeals Chamber decision by Judge Jacobs on 18 February 2020.
Read the full decision in; ;
Court of Appeal decision reported as [2023] AACR 8
Judicial Summary
European Union law- Council Regulations 1408/71/EEC and EC 883/2004; Disability living allowance; Care component; Children; Entitlement; Free movement of persons; Insured persons; Residence; Social security benefits
The appellant, a British national, lived in the UK with her mother. Her father was self-employed and resident in Belgium. Both parents are British nationals. The appellant had been receiving the care component of disability living allowance (DLA) from 2013, but in 2015 the Secretary of State ceased making payments to her on the basis that the competent state for payment was Belgium.
The Secretary of State considered that the appellant was entitled only to benefits under Belgian legislation, as a family member of a person governed by the social security legislation in Belgium and by Regulation No 883/2004 Article 21, which provided for payment of cash benefits to family members of an insured person who were residing in a Member State other than the competent state.
The appellant claimed that, as an insured person resident in the UK, the applicable legislation under Article 11(3)(e) of the Regulation was UK legislation. Article 11 provided that persons to whom the Regulation applied would be subject to the legislation of a single Member State. Article 11(3)(a) to (d) related to particular persons, including an employed or self-employed person. Article 11(3)(e) provided that a person to whom Article 11(3)(a) to (d) did not apply would be subject to the legislation of the Member State of residence
The appellant successfully appealed to the First-tier Tribunal (F-tT), which held that, as there was a “difference of view” between the UK and Belgium as to which was the competent state, the appellant was entitled to continue to receive DLA until that issue was resolved.
The Upper Tribunal set aside the F-tT’s decision. It decided that the appellant was limited to claiming benefits under Belgian legislation as Article 21 took priority over any entitlement under UK legislation. The appellant contended that the Upper Tribunal had misdirected itself in considering that any derivative right she had through her father under Article 21 took priority over her independent right to benefit under UK law.
Held, allowing the appeal, that:
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the underlying aim of Regulation No 883/2004 was the co-ordination of social security systems with a view to enabling free movement for workers and the self-employed. There was a single legislative system applicable to an insured person. Article 11 in particular, determined the applicable legislation for a particular insured person. The appellant was not pursuing an activity as an employed or self-employed person in a Member State and fell within Article 11(3)(e) and was therefore subject to the legislation of the Member State of residence, namely the UK. She was an insured person as she satisfied the conditions required under UK legislation to have the right to benefits.
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the appellant is entitled in her own right to payment of the care component of disability living allowance under the relevant provisions of the United Kingdom legislation. That is the applicable legislation in her case applying Article 11 of the Regulation. There is no basis for giving priority to any rights she may derive from her father under the legislation of the state where her father is self- employed.’ (paragraph 60)
Updates to this page
Published 12 March 2020Last updated 5 December 2023 + show all updates
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Court of Appeal decision selected for reporting as [2023] AACR 8
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First published.