24 November 2017, by Desmond Rutledge
Secretary of State for Work and Pensions v Fileccia  EWCA Civ 1907: Sales, Lindblom and Asplin LJJ, 24 November 2017
The claimant, who was Italian, came to the United Kingdom in 2009. He received a state pension from France. On 26 June 2013, he made a claim for Carer’s Allowance in the UK.
The Department for Work and Pensions (DWP) refused the claim on the ground that France was the competent state to pay such benefits, by reference to Articles 21 and 25 of Regulation (EC) No 883/2004 on the coordination of Social Security systems.
In his letter of appeal the claimant said that – “I have contacted France social security office and they told me there is no way that they would pay a carers allowance for a disabled person living in the UK”. The Secretary of State also contacted the French authorities but received no response. A First-tier Tribunal allowed the claimant’s appeal.
The Secretary of State appealed to the Upper Tribunal (case CG/1697/2014). When granting permission, Judge Jacobs said the case raised issues under Article 6(2) of the implementing Regulation 987/2009, which requires the Member State in which the claimant is resident to pay benefit on a provisional basis where there is a “difference in views’ between Member States about which was responsible for paying a benefit.
The Upper Tribunal decided that the claimant’s evidence was sufficient to establish that there was a difference of views. In this type of case, the only issue for the domestic authorities is whether the evidence is sufficient to satisfy them that the two competing States hold different views on the issue.
The Secretary of State appealed to the Court of Appeal arguing that in order to satisfy Article 6(2), the claimant needed to have obtained a formal decision from the French authorities, or to have been able to point to official documentation which denied competence in a clear and unambiguous way. In short, article 6 required a level of formality that was absent in this case.
The Court of Appeal dismissed the Secretary of State’s appeal saying that it was clear from the legislative background to the Regulation that there was an intention to provide a system of benefits that was “co-ordinated, user friendly and enables people to access their rights as rapidly as possible”. Accordingly, there was no need for a formal dispute process in order for a “difference of views” to arise.
Lady Justice Aspin said:
“… in my judgment, the interpretation put forward by the SSWP would be contrary to the entire legislative background to Article 6(2) because it would require the person seeking the benefits both to take steps himself to pursue the relevant institutions in the Member States for a formal decision and to suffer what would be likely to be considerable delay before obtaining such a decision and triggering the payment of benefits on a provisional basis under Article 6(2)” (para 44).
The Court of Appeal’s judgment is available here: Secretary of State for Work and Pensions v Fileccia  EWCA Civ 1907
The effect of the judgment is that the DWP should have paid Carer’s Allowance on a provisional basis and made a reference of the matter to the EU Administrative Commission in order to determine whether the UK or France was the competent Member State.