EXPORTABILITY OF DLA etc – Effect of UT decision.

EXPORTABILITY OF AA, DLA (CARE) & CA – EFFECT OF RECENT UPPER TRIBUNAL DECISION

The purpose of this memo is to
1. inform DMs about a recent decision of the UT1 which deals with the
circumstances in which a claimant is entitled to DLA, AA and CA while resident in another EEA state and

2. instruct DMs to apply the Secretary of State’s power to stay making decisions
in certain lookalike cases.

The claimant had been awarded DLA care component from July 1993 for an indefinite
period. She moved to Spain in 2002 and on 8.1.07 a DM determined that the claimant
was not entitled to DLA from November 2002.

On 21.8.08 a FtT allowed an appeal by the claimant. The Secretary of State appealed
to the UT. In the course of the appeal the Secretary of State argued that the UK was
not the competent state to pay sickness benefits because neither the claimant or her
spouse were in receipt of a UK pension and they did not satisfy the contributions
conditions for receipt of IB. The claimant was not an “employed person” for the
purposes of the sickness benefits chapter. A panel of UT judges made their decision
on 19.7.12.

What the UT decided

The UT held that the circumstances of the case could not be distinguished from the
CA decision in Ruas1 and it was consequently bound to follow that judgment. The
terms “employed person” and “self-employed person” have the same meaning
throughout the Regulation subject to their being read in context.

Consequently, it wassufficient that the claimant was an insured person by virtue of having paid national insurance contributions in the past and being insured against a single risk. She did not need to be currently employed or self-employed at the material time, or to have a
contribution record which would have entitled her to contribution-based cash sickness
benefits under United Kingdom legislation. Although Article 19 of the Regulation did
not apply, Article 22 did. The claimant accordingly fell within the scope of the rules in
Chapter 1 of Title II of Regulation 1408/71, and was entitled to the payment of the
benefit in Spain under Article 22 of Regulation 1408/71
1HMRC v Ruas [2010] EWCA Civ 291

Full details

May be of interest to those who posted posted in the past on living in EEC/EEA countries.