The Secretary of State for Work and Pensions v Fileccia, Court of Appeal - Civil Division, November 24, 2017, [2017] EWCA Civ 1907

Resolution Date:November 24, 2017
Issuing Organization:Civil Division
Actores:The Secretary of State for Work and Pensions v Fileccia

Neutral Citation Number: [2017] EWCA Civ 1907

Case No: C3/2016/0358





Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 24/11/2017

Before :





- - - - - - - - - - - - - - - - - - - - -


- - - - - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - - - - - -

Miss Fiona Scolding QC and Toby Fisher (instructed by the Government Legal Department) for the Appellant

Mr Richard Drabble QC and Tom Royston (instructed by Platt Halpern) for the Respondent

Hearing date: 9 November 2017

- - - - - - - - - - - - - - - - - - - - -

Approved Judgment

Lady Justice Asplin: 1. The questions raised in this appeal are as to the interpretation of the phrase ``a difference in views'' for the purposes of Article 6(2) of Regulation 987/2009 [2009] OJ L284/1 (the ``implementing Regulation'') and the nature of the evidence necessary to establish such a difference in views.

  1. The implementing Regulation lays down a procedure for implementing Regulation (EC) No 883/2004 (the ``basic Regulation'') which is concerned with the co-ordination of social security systems across the European Union and the creation of more effective co-operation in order to facilitate the free movement of persons within the European Union. Article 6 of the implementing Regulation sets out a regime to cater for the situation in which there is ``a difference in views'' between the institutions or authorities of two or more Member States concerning the payment of cash benefits.

  2. The Appellant, the Secretary of State for Work and Pensions (the ``SSWP'') contends that Upper Tribunal Judge Jacobs (``UT Judge Jacobs'') erred in law in the manner in which he interpreted ``a difference in views'' and in finding that Article 6(2) applied in this case, based on the content of what is described as an informal expression of hearsay from the Respondent, Mr Fileccia, and in accepting the hearsay statement as evidence of a difference in views for the purposes of Article 6(2).

    Relevant Background

  3. Mr Fileccia is an Italian national who came to live in Larkhall, South Lanarkshire on or around 25 November 2009. He receives a French state pension. On 26 June 2013, he applied for a carer's allowance on the basis that he provides care to a person with a disability and asked that the entitlement commence on 9 June 2013. His claim under section 70 Social Security Contributions and Benefits Act 1992 was refused by the SSWP on 30 July 2013 because it was stated that the United Kingdom was not the ``competent State'' to pay the cash benefits.

  4. Carer's allowance is a non-contributory benefit under section 63(c) Social Security Contributions and Benefits Act 1992 (the ``SSCBA'') and is a ``cash sickness benefit'' for the purposes of the basic Regulation and, accordingly, Chapter 1 of Title III to the basic Regulation applies. Section 70(4A) SSCBA provides amongst other things that a person to whom the basic Regulation applies shall not be entitled to an allowance under section 70 for any period unless the UK ``is competent for payment of sickness benefits in cash to the person for the purposes of Chapter 1 of Title III of the Regulation in question.''

  5. It is the SSWP's position that as a result of Articles 21 and 25 of the basic Regulation where an EU national who is resident in the United Kingdom receives a pension from another Member State, it is the Member State which provides the pension which is the competent Member State for determining entitlement to all cash sickness benefits.

  6. Mr Fileccia appealed the SSWP's decision to the First Tier Tribunal (the ``FTT'') on 21 August 2013. At the same time, he submitted a letter to the FTT in which he stated as follows:

    ``I would like to appeal the decision regarding the refusal of me receiving a carer's allowance. I have contact [sic] France social security office and the [sic] told me that there is no way that they would pay a career's [sic] allowance for a disabled person living in the UK, I considered looking after someone who is disabled as a job whether I have contributed or not into the country the person I care for come from the UK she has contributed into the system and has paid into it. Could you please re-look at the situation?''

    In a decision made on paper and dated 21 January 2014, the FTT decided that Mr Fileccia was entitled to the carer's allowance claimed because the United Kingdom was the competent Member State to pay the cash benefit on the basis that Article 11(3)(e) (application of the legislation of the Member State of residence) of the basic Regulation applied.

  7. On 19 February 2014, the SSWP appealed that decision to the Upper Tribunal (the ``UT'') on the basis that the FTT had erred in the way in which it had interpreted Article 11 of the basic Regulation. Permission to appeal was granted in July 2014 on the basis of an arguable error of law. However, when granting permission, UT Judge Jacobs also noted that he wondered whether the case raised issues under Article 6(2) of the implementing Regulation because Mr Fileccia was in receipt of a retirement pension from France and had claimed a carer's allowance in the United Kingdom, having been refused in France; his claim having also been refused in the United Kingdom on the basis that the United Kingdom was not the competent Member State. The Judge questioned whether the SSWP should have paid the carer's allowance on a provisional basis and made a reference of the matter to the EU Administrative Commission in order to determine which of the UK and France was the competent Member State.

  8. Article 6(2) having been raised, in July 2014, SSWP agreed to contact the French authorities. On 21 January 2015, the SSWP emailed their French counterparts asking for information as to why Mr Fileccia's ``claim for the equivalent benefit was not granted in France and whether a review of this decision has been undertaken.'' There had been no reply by the time the appeal was heard by the UT and there was no evidence of a substantive reply before us. However, it is important to note that the email of 21 January 2015 was not before UT Judge Jacobs when he decided the appeal. In the submissions which were before the UT, the SSWP had stated amongst other things that Mr Fileccia had applied for a carer's allowance on 26 June 2013 and had applied to the French authorities first who had ``refused him the benefit as he does not live in France.'' The submissions went on:

    ``With regards to the application of Article 6(2) of Regulation 987/2009 to the claimant's situation, the Secretary of State notes that no contact has so far been made with the relevant French authorities. It also notes the Judge's concern that the claimant may have been placed in an unfavourable situation because two Member States have separately refused him a benefit to which it seems he ought to be entitled pursuant to one of their legislations.

    As a result, the Secretary of State proposes to make contact and engage with the French authorities with the aim of reaching agreement as to the substantive position on the claimant's claim. Should such attempts be unsuccessful, it may indeed become necessary to follow the procedure provided under Article 6(2).

    The Secretary of State would like to emphasise that the proposed engagement with French authorities to seek to resolve the claimant's entitlement does not affect the issues subject of the present appeal and bearing in mind the summer months and holiday season, we may not receive an immediate response from the French authorities.

    . . . ''

    UT's Decision

  9. UT Judge Jacobs went on to determine the SSWP's appeal and by his Decision of 3 September 2015, he set aside the decision of the FTT on the basis of an error of law and remade the decision himself. He decided that the SSWP must investigate and decide Mr Fileccia's claim and if he fulfilled the conditions of entitlement, the SSWP should make a provisional award under Article 6(2) and implement the other provisions of that article. At paragraph 8 of his Reasons for Decision he stated that following his decision in Secretary of State for Work and Pensions v HR [2014] UKUT 0571 (AAC), he had given a direction in this case that as he read Article 6(2), it applied in the following way:

    ``It applies if there is a difference of view between member States. In this case, there is. France has refused benefit and the United Kingdom denies responsibility.

    In those circumstances, responsibility lies with the State of residence until the issue is resolved. The claimant lives in this country.

    That means that this country is provisionally responsible under its legislation.

    Payment is not automatic. It is only required if the claimant satisfies the domestic conditions of entitlement to a particular benefit, which in this case is carer's allowance''

    and that unless persuaded otherwise, within a month of the direction, he would dispose of the Appeal in the way in which ultimately, he did.

  10. He set out his reasoning at paragraphs [11] - [13] of his Reasons for Decision as follows:

    ``C. Analysis

  11. As a result of decisions I have given in HR and other cases, the correct approach to cases like this one has become clear. It depends on whether there has been a difference of view. Article 6(2) says nothing about the form in which that difference must be expressed or the nature of the evidence required to show it. In particular, it does not say that it must be formally expressed in a decision. The only issue for the domestic authorities in this country - the decision maker, the First-tier Tribunal and the Upper Tribunal - is whether the evidence is sufficient to satisfy them that the two competing States hold different views on the issue. The United Kingdom takes the view that France is the competent State. The claimant says that he approached the French authorities and was told that they would not pay benefit for...

To continue reading