Factual and Procedural Background
This opinion concerns an appeal by the Plaintiff, a retired person born in 1927, who previously worked in Great Britain but has resided in Spain since 1985. The Plaintiff claimed attendance allowance on 3 September 1988. The local adjudication officer denied entitlement on the basis that the Plaintiff was neither present nor ordinarily resident in Great Britain for the required period, and that her absence was not temporary. The social security appeal tribunal unanimously dismissed the Plaintiff’s appeal against that decision on 4 December 1990. The Plaintiff then appealed to the Social Security Commissioner, who heard the appeal on 24 May 1993. The Commissioner found the tribunal’s decision erroneous in law insofar as it held that the Plaintiff was not covered by Council Regulation (EEC) No. 1408/71, but ultimately determined that the Plaintiff was not entitled to attendance allowance under the regulation or domestic law.
Legal Issues Presented
- Whether a retired person who had previously worked in a Member State remains within the scope of Council Regulation (EEC) No. 1408/71.
- Whether attendance allowance qualifies as an "invalidity benefit" for the purposes of Article 10 of Council Regulation (EEC) No. 1408/71.
- Whether Article 10 of Council Regulation (EEC) No. 1408/71 applies to a claim for attendance allowance made after the claimant has left the Member State and without prior entitlement to the benefit.
Arguments of the Parties
Appellant's Arguments
- The Plaintiff contended that she fell within the scope of Council Regulation (EEC) No. 1408/71 as a retired person who had previously worked in Great Britain.
- The Plaintiff argued that attendance allowance is an "invalidity benefit" under Article 10 of the Regulation and thus should be payable despite residence in another Member State.
- The Plaintiff asserted that she may have satisfied the medical conditions for attendance allowance prior to leaving Great Britain in 1985, potentially establishing an acquired right under Article 10.
- The Plaintiff relied on a series of European Court of Justice decisions which, in her submission, undermined prior Commissioner decisions and supported the exportability of benefits under Article 10.
- The Plaintiff’s counsel submitted that the words "confiscation" or "suspension" in Article 10 could apply to cases without initial entitlement, supporting her claim.
Respondent's Arguments
- The Respondent conceded that the Plaintiff was within the scope of the Regulation but maintained that the claim for attendance allowance was not assisted by it.
- The Respondent argued that the Plaintiff was not ordinarily resident or present in Great Britain at the relevant times, and her absence was not temporary, thus precluding entitlement under domestic regulations.
- The Respondent contended that Article 10 applies only to benefits already acquired and does not assist initial claims made after leaving the Member State.
- The Respondent distinguished the European Court cases cited by the Plaintiff, emphasizing that those cases concerned supplements or accretions to existing benefits, whereas the Plaintiff’s claim was an initial claim.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R(A) 4/75 |
Established that attendance allowance is not payable if claim is made after leaving the Member State and no prior entitlement existed. |
Affirmed; the Court held this decision remains good law and applies to the present case. |
| R(S) 9/81 |
Clarified that Article 10 waives residence clauses only for benefits already acquired, not for initial entitlement conditions. |
Affirmed; the Court relied on this to distinguish the Plaintiff’s claim from benefits already acquired. |
| Bestuur der Sociale Verzekeringsbank v. Smieja (Case 51/73) [1973] ECR 1213 |
Discussed the meaning of "acquired" rights under Article 10. |
Considered but found inapplicable as no prior entitlement existed in the Plaintiff’s case. |
| Caracciolo (nee Camera) v. Institut National d'Assurance Maladie-Invalidite (Case 92/81) [1982] ECR 2213 |
Held that residence clauses cannot be applied to invalidate already acquired invalidity benefits. |
Distinguished; the benefit in question was a supplement to an existing benefit, unlike the Plaintiff’s initial claim. |
| Caisse regionale d'assurance maladie Rhone-Alpes v. Giletti (Cases 379 to 381/85 and 93/86) [1987] ECR 955 |
Confirmed Article 10 prevents denial or withdrawal of supplements to benefits when moving Member States. |
Distinguished; the Court held this concerned supplements, not initial claims like the Plaintiff’s. |
| Winter-Lutzins v. Bestuur van de Sociale Verzekeringsbank (Case C-293/88) [1990] ECR 1-1623 |
Related to exportability of benefits already being received before moving. |
Considered but not directly applicable as the Plaintiff was not receiving attendance allowance before leaving. |
| Newton v. Chief Adjudication Officer (Case C-356/89) [1992] 1 CMLR 149 |
Held that benefits already being received cannot be withdrawn solely due to residence in another Member State. |
Distinguished; Plaintiff was not receiving attendance allowance prior to departure. |
Court's Reasoning and Analysis
The Court began by affirming that the Plaintiff, as a retired person who had previously worked in a Member State, fell within the scope of Council Regulation (EEC) No. 1408/71. It accepted that attendance allowance qualifies as an "invalidity benefit" under Article 10 of that Regulation. However, the Court emphasized that Article 10 applies only to benefits already acquired before the claimant moves to another Member State. The key principle, derived from prior Commissioner decisions R(A) 4/75 and R(S) 9/81, is that rights to benefit must be acquired before they can be "exported" under Article 10, and initial entitlement conditions must be met prior to departure.
The Court analyzed the Plaintiff’s claim and found that she was not entitled to attendance allowance at the date of claim because she was not ordinarily resident or present in Great Britain and her absence was not temporary. The Court rejected the Plaintiff’s argument that Article 10 should apply to initial claims made after leaving the Member State, concluding that the language of Article 10, particularly the terms "reduction, modification, suspension, withdrawal or confiscation," inherently presupposes an existing entitlement which is subsequently affected by residence change.
The Court examined European Court of Justice decisions cited by the Plaintiff and found them distinguishable because they concerned supplements or accretions to benefits already being received, rather than initial claims. The Court concluded that the principle established in the earlier Commissioner decisions remains authoritative and controlling.
Finally, the Court considered whether to refer the question to the European Court but declined, finding the matter sufficiently clear on existing case law and Commissioner decisions.
Holding and Implications
The Court’s final decision was to allow the Plaintiff’s appeal only to the extent of setting aside the erroneous legal conclusion that the Plaintiff was not covered by Council Regulation (EEC) No. 1408/71, but to dismiss the claim for attendance allowance on the substantive merits.
HOLDING: The Plaintiff is not entitled to attendance allowance because she was not ordinarily resident or present in Great Britain at the relevant times, and Article 10 of Council Regulation (EEC) No. 1408/71 does not assist initial claims made after departure from the Member State.
IMPLICATIONS: This decision confirms that Article 10 protections apply only to benefits already acquired prior to residence change and do not extend to initial claims made from abroad. The ruling reinforces the distinction between exportability of existing benefits and entitlement conditions for new claims, thus limiting the scope of benefit portability under the Regulation. No new precedent was set beyond affirming established principles from prior Commissioner decisions.