SE v Secretary of State for Work and Pensions: [2024] UKUT 405 (AAC)
Upper Tribunal Administrative Appeals Chamber decision by Judge Buley on 5 December 2024
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Judicial Summary
The Appellant and her husband were dual UK and Swiss nationals. Her husband received a Swiss pension. She was awarded Carer’s Allowance in 1999. EU Reg 1408/71 was replaced by EU Reg 883/2004 in 2010 (in the UK) and 2012 (in Switzerland). In 2018, the Respondent decided that the UK was not the competent state for“ sickness benefits” under Title III of Reg 833/2004. On appeal, the FTT accepted the Respondent’s invitation to substitute a decision that the Appellant was not entitled to CA from 2007, when Reg 1408/71 was still in force.
Subsequently, the Court of Appeal decided in Harrington v SSWP [2023] 1 WLR 3477 that Art 21 of Reg 833/2004, which concerns sickness benefits for “insured persons” (other than pensioners) and their family members, did not operate so as to exclude any domestic entitlement to sickness benefits. The Respondent sought to distinguish Harrington. The issue was whether Art 28 of Reg 1408/71, and / or Art 29 of Reg 833/2004, operate as a rule of priority to displace entitlement to sickness benefits under domestic law, or whether they only operate, as Harrington held that Art 21 does, in cases where the family member has no entitlement in the state of residence. The appeal was allowed for both periods:
(i) Art 28 of Reg 1408/71 has the effect that the family member of a pensioner may be entitled to be paid cash sickness benefits by the state that is responsible for the payment of a pension, where they are not entitled to be paid such benefits by the state in which they are resident. It does not, however, have the effect that, if the family member is otherwise entitled to be paid cash sickness benefits by the state of residence, that entitlement is removed or the state of residence ceases to be the competent state for payment of cash sickness benefits to that person
(ii) Likewise, Art 29 of Reg 833/2004, considered in light of Harrington, ensures that the family member of a pensioner is entitled to cash sickness benefits by the state that is responsible for the pension, where they are not entitled to be paid such benefits by the state in which they are resident, but does not have the effect of removing such entitlement if the family member is otherwise entitled to be paid such benefits from the state of residence.