The EU coordination rules: Aggregation and the Past Presence Test for Attendance Allowance and Disability Living Allowance

Secretary of State for Work and Pensions v MM (AA) EC and (EC) 883/2004) [2016] UKUT 547 (AAC) (Judge Jacobs), 12 December 2016

It is a condition of entitlement to Attendance Allowance (“AA”) and the care component of Disability Living Allowance (“DLA”) that the claimant must satisfy the past presence test (“PPT”). Under this test the claimant must have been present in Great Britain for at least 104 weeks in the last 156 weeks. The legislation however, provides that the PPT does not apply where the claimant is covered by the EU coordination rules and can demonstrate a “genuine and sufficient link to the UK social security system”.

In Secretary of State for Work and Pensions v MM (AA) EC and (EC) 883/2004) [2016] UKUT 547 (AAC) (Judge Jacobs), BK, the child claimant was an Irish citizen. While in Ireland, BK received a domiciliary care allowance and his mother received a carer’s allowance. They came to the UK and two days after arriving the mother claimed DLA for him. In MM, the claimant was a German who came to the UK in May 2013, having lived continuously in Germany since 1998. She claimed AA a month after arriving in the UK. Both BK and MM argued that their residence in the Irish Republic and Germany respectively could be aggregated with their residence in this country, with the effect that they satisfied the PPT. A First-tier Tribunal refused BK’s appeal but allowed MM’s.

When the matter came before the Upper Tribunal the Secretary of State conceded that: (i) the claimants were within the scope of Regulation (EC) 883/2004; (ii) they were both habitually resident in Great Britain; and (iii) the United Kingdom was the competent State for the payment of AA and the care component of DLA as “sickness benefits”.

The Upper Tribunal concluded that that mere residence in another Member State on its own (without evidence of residence that equates to insurance in the Member State) cannot be aggregated with presence in the UK in order to pass the PPT for DLA and AA under Article 6 and paragraph 2 of Annex XI of Regulation 883/2004. Judge Jacobs gave the following reasons for his conclusion:

The phrase “genuine and sufficient link to the UK social security system” is not defined and has its origins in an EU case Stewart v SSWP C-503/09;

• Stewart lays down a general principle that a Member State may insist on a claimant demonstrating a genuine and sufficient link with that State as a condition for awarding benefit.
• If a claimant’s residence in another State could be aggregated under Article 6, it could render the Court’s decision nugatory and would do so in these cases
• The purpose of Article 6 is to preserve accrued rights and Judge Jacobs doubted that it was possible to “accumulate residence” unless it is insurance or contribution based.

Judge Jacobs went on hold that in so far as the domestic legislation treats the past presence period and the genuine and sufficient link as separate, it is inconsistent with the approach laid down in Stewart. According to Stewart presence in a Member State was merely one way of establishing the necessary connection with that Member State. In some cases presence might be sufficient on its own but in other cases the link might be formed by a number of elements – such as family ties, work or previous residence. Judge Jacobs said the domestic legislation can be reconciled with Stewart if decision-makers and tribunals attach greater significance to presence in the UK the closer the period comes to satisfying the 104 weeks in the PPT.

When appropriate, decision-makers should also consider the possibility of making an advance award under reg 13A of the Social Security Claims and Payments) Regulations 1987/1968, in cases where the claimant will qualify under the PPT within 3 months of the claim for benefit.