KR v Secretary of State for Work and Pensions (DLA) : [2019] UKUT 85 (AAC): [2019] AACR 22

Upper Tribunal Administrative Appeals Chamber decision by Judge Jacobs on 20 March 2019.

From:
HM Courts & Tribunals Service and Upper Tribunal (Administrative Appeals Chamber)
Published
10 April 2019
Last updated
28 July 2021 — See all updates
Categories:
European Union law
Sub-categories:
European Union law - Council regulations 1408/71/EEC and (EC) 883/2004
Judges:
Jacobs, E
Decision date:
20 March 2019

Read the full decision in [2019] AACR 22ws

Judicial Summary

European Union Law – (EC) Regulation 883/2004 – exporting entitlement to a sickness benefit.

The Secretary of State made an indefinite award of disability living allowance (DLA) to the claimant from and including 30 April 2009, consisting of the mobility component and the care component. She was later awarded contributory employment and support allowance for the inclusive period 26 March 2012 to 26 March 2013. In September 2012, she moved with her husband to Finland. Following her departure, the Secretary of State superseded the decision awarding the DLA and decided the claimant was no longer entitled to an allowance from and including 22 September 2012. The claimant appealed to the First-tier Tribunal, which decided that following her move to Finland she remained entitled to the care component of DLA, but not to the mobility component. The claimant appealed to the Upper Tribunal. The claimant originally argued that she was entitled to retain the mobility component; and that her case fell within Article15 of Regulation 883/2004 on the basis of her husband’s employment. Those argument were not pursued. The appeal before the Upper Tribunal concerned the exportability of the care component, which is a sickness benefit in EU law.

Held, dismissing the appeal, that:

  1. the claimant was (the Secretary of State conceding) entitled to export her entitlement on different bases at different times (paragraph 4);

  2. the claimant was a pensioner for so long as she was receiving contributory employment allowance and as the United Kingdom was responsible for the cost of benefits in kind, it had to pay cash benefits to the claimant under Article 29, which covered her award of the care component of DLA (paragraphs 13 to 17);

  3. from the time the claimant ceased to be a pensioner, she remained entitled to the care component by virtue of: (a) Article 7; or (b) Article 21 in conjunction with the decision of the European Court of Justice in Secretary of State for Work and Pensions v Tolley (Case C-430/15 EU:C:2017:74) [2017] 1 WLR 1261 (paragraphs 18 to 21).

Published 10 April 2019
Last updated 28 July 2021 + show all updates

  1. Decision selected for reporting as [2019] AACR 22

  2. First published.