Court of Appeal allows child’s disability living allowance appeal holding UK was competent state under EU co-ordination rules for social security

Friday 21 April 2023

The Appellant was represented by Adrian Berry and Desmond Rutledge of Garden Court Chambers, instructed by William Ford of Osbornes Law Solicitors.

The AIRE Centre acted as interveners, with Thomas de la Mare KC, Ravi Mehta and Eleanor Sibley instructed by Herbert Smith Freehills LLP.

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The appellant is a child who lives with her mother in the United Kingdom. In January 2014, she was awarded the care component of disability living allowance (‘DLA’). The Department for Work and Pensions (DWP), however, revised that decision in May 2015 when it discovered that her father had moved to Belgium where he was self-employed as an English teacher.

The DWP decided that DLA could not be paid as under the EU co-ordination rules for social security, the appellant was a family member of a person working and contributing in Belgium, such that Belgium was the Competent State for paying DLA (a sickness benefit), rather than the UK. The appellant appealed, arguing that she is an insured person resident in the UK under Article 11(3)(e) of Regulation (EC) No 883/2004, and this meant the legislation applicable to her was UK legislation.

The appellant’s appeal was dismissed on 8 February 2020 by the Upper Tribunal. Judge Jacobs held that the appellant could only be entitled to benefits under the legislation of one State, and the effect of Article 21 was that Belgium was the Competent State, as she is a family member of a person who is self-employed in Belgium and economic rights took priority over residence.

Lord Justice Lewis, giving the lead judgment, disagreed, saying he did not accept that the provisions of Article 21 operated so as to take priority over the applicability of the legislation of the UK to the appellant as an insured person under Article 11(3)(e). He reached this conclusion for the following reasons.

  • The wording and purpose of Article 21 do not suggest that the article was intended as a rule of priority which displaced the legislation that would otherwise be applicable. Applying Article 11 of the Regulation, Article 21 was not expressed as a rule of priority, unlike Article 32, for example.
  • The history of the legislative provisions indicated that it was the legislation of the State of residence that had priority in cases involving payment of cash sickness benefits, such as the care component of DLA, where family members were residents in a State other than the Competent State of the worker or self-employed person; Article 19(2) of Regulation 1408/71 considered. There was nothing to indicate that the European Union legislature wished to bring about a significant change in that position.

This interpretation was also consistent with ensuring the free movement of workers and the self-employed. A parent could be deterred from leaving one Member State in order to go to work in another Member State if one of the consequences would be that a child who remained in the first State ceased to be entitled to DLA under the legislation of that State. This was particularly the case in relation to cash benefits for disabled children.

At paragraph 60, Lord Justice Lewis concluded:

“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.”

Click here for the full judgment – Harrington v Secretary of State for Work and Pensions [2023] EWCA Civ 443

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