The Secretary of State for Work and Pensions v Fileccia

Factual and Procedural Background

The appeal concerns the interpretation of the phrase "a difference in views" under Article 6(2) of Regulation 987/2009 (the "implementing Regulation") and the nature of evidence required to establish such a difference. The implementing Regulation provides procedures for the coordination of social security systems across the EU, particularly addressing situations where there is a difference in views between Member States regarding the payment of cash benefits.

The Appellant, the Secretary of State for Work and Pensions ("SSWP"), challenged the Upper Tribunal's ("UT") interpretation of "a difference in views" and its acceptance of hearsay evidence from the Respondent ("Mr Fileccia") as sufficient to trigger Article 6(2).

Mr Fileccia, an Italian national residing in the UK since November 2009, receives a French state pension. He applied for a UK carer's allowance in June 2013, which was refused by the SSWP on the basis that the UK was not the competent State to pay the benefit.

Carer's allowance is classified as a cash sickness benefit under the Social Security Contributions and Benefits Act 1992 and the basic Regulation. The SSWP contended that under Articles 21 and 25 of the basic Regulation, the Member State providing the pension (France) is competent to determine entitlement to cash sickness benefits.

Mr Fileccia appealed the refusal to the First Tier Tribunal ("FTT"), submitting a letter indicating that the French social security office had informally stated they would not pay carer's allowance for a disabled person living in the UK. The FTT decided in his favor, finding the UK competent under Article 11(3)(e) of the basic Regulation.

The SSWP appealed this decision to the UT, granted permission on an arguable error of law basis. UT Judge Jacobs questioned whether Article 6(2) of the implementing Regulation applied, given the refusal by both UK and French authorities and the absence of formal agreement on competence.

Following the raising of Article 6(2), the SSWP contacted French authorities in January 2015 seeking clarification, but no substantive reply was received before the UT hearing. The SSWP's submissions acknowledged the French refusal of benefits on residency grounds but argued no formal difference in views had been established.

UT Judge Jacobs set aside the FTT decision, ruling that the SSWP must investigate the claim and, if entitlement conditions are met, make a provisional award under Article 6(2), which applies when there is a difference of views between Member States concerning benefit payment responsibility.

Legal Issues Presented

1. What is the proper interpretation of the phrase "a difference in views" for the purposes of Article 6(2) of Regulation 987/2009?
2. What is the nature and quality of evidence necessary to establish a "difference in views" between Member States under Article 6(2)?

Arguments of the Parties

Appellant's Arguments

• The evidence did not establish that France had formally decided it was not the competent Member State for determining the Respondent's claim.
• The phrase "difference in views" requires a formal dispute or clear, authoritative denial of competence by the other Member State.
• Informal hearsay evidence from the Respondent was insufficient to trigger Article 6(2).
• Allowing informal statements to suffice would undermine the principle of differing national social security schemes and could lead to unrecoverable provisional payments.
• Article 6 should be read in context, requiring a level of formality consistent with the Regulation's provisions on disputes and exchanges between institutions.
• The travaux préparatoires and Decision A1 of the Administrative Commission support the need for formal decisions or documents evidencing a difference in views.
• The Respondent should have sought formal or judicial review in France to obtain a clear statement.

Respondent's Arguments

• The UT correctly interpreted "difference in views" broadly, not requiring formal decisions.
• The factual finding of a difference in views based on the evidence was neither perverse nor irrational.
• The decision-maker is entitled to consider informal evidence and draw reasonable inferences.
• UT Judge Jacobs' specialist experience supports his practical and purposive approach.
• The policy behind the implementing Regulation favors rapid access to benefits and provisional payments without undue procedural hurdles.
• The SSWP failed to seek clarification or forward the claim to France promptly, prolonging provisional payment periods unnecessarily.
• The letter from the Respondent and the SSWP's own submissions sufficed to establish a difference in views as to competence.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analyzed the phrase "difference in views" purposively within the legislative context of the basic Regulation and implementing Regulation. It found that the phrase encompasses a broad range of circumstances, from formal conflicting decisions to informal expressions of differing views by institutions or their representatives. The court rejected the Appellant's argument that a formal dispute or written decision was necessary to trigger Article 6(2).

The court emphasized the legislative intent to protect individuals by facilitating rapid provisional payment of benefits while competence issues are resolved between Member States. It noted that requiring formal decisions would cause undue delay and undermine this protective purpose.

The evidence submitted, including the Respondent's letter and the SSWP's own submissions acknowledging French refusal on residency grounds, was sufficient to establish a difference in views as a matter of fact and evidence. The court accorded deference to the specialist Upper Tribunal judge's factual assessment and interpretation, consistent with precedent that specialist tribunals are best placed to develop consistent approaches in complex statutory schemes.

The court also considered Decision A1 of the Administrative Commission and travaux préparatoires but found these did not require a narrow or formalistic interpretation. The term "decision" in the administrative context was held to include informal views or expressions of position, not solely formal rulings.

Overall, the court concluded that the UT correctly applied Article 6(2) and that the difference in views was sufficiently demonstrated to justify provisional payment obligations by the UK as the State of residence.

Holding and Implications

The appeal is DISMISSED.

The court upheld the Upper Tribunal's interpretation that "a difference in views" under Article 6(2) of the implementing Regulation does not require formal or documented decisions but can be established by sufficient evidence of differing positions between Member States' institutions. This interpretation enables the provisional payment of benefits by the State of residence pending resolution of competence disputes, thereby protecting claimants from undue delay in accessing social security benefits.

The decision affirms the specialist tribunal's role in fact-finding and statutory interpretation in complex social security matters and does not set new precedent beyond confirming the purposive and practical approach to Article 6(2).