Landmark Chambers


DWP unlawfully failed to make a provisional award of carer’s allowance: Secretary of State for Work and Pensions v Fileccia [2017] EWCA Civ 1907

DATE: 27 Nov 2017

The Court of Appeal (Sales, Lindblom, Asplin LJJ) has dismissed the Secretary of State’s appeal in this important test case about the duty to make awards of benefit where there appears to be a different approach between two member states as to which is the “competent state” for the payment of a benefit.

The Court has found that the Secretary of State acted unlawfully in not making a provisional award of carer’s allowance to help the Respondent look after a seriously disabled friend.

The Secretary of State argued that France rather than the UK should be responsible under Regulation 883/04 for paying a sickness benefit (such as carer’s allowance), because it was also paying Mr Fileccia a pension.

The law says that where there is a ‘difference in views’ between EU countries and the UK about which country is the competent state, the state of residence should make interim payments to avoid long delays in payment.

The Secretary of State had suggested that a degree of formality is required for a ‘difference in views’  between member states to be established, requiring at least documentary evidence of the position of each state. The Secretary of State argued that the Respondent’s letter describing contact with a French official was inadequate, and did not clearly identify a denial of competence by the French authorities as opposed to a lack of eligibility to a French benefit similar to carer’s allowance.

The Court of Appeal found that the Upper Tribunal was entitled to take a broader approach and find that the Respondent’s account of his contact with French officials was adequate evidence of a difference of views. The judgment of Asplin LJ contains important comments on the respect due to the views of a specialist tribunal on the workings of social security systems.

Richard Drabble QC (leading Tom Royston) appeared for Mr Fileccia.

Fiona Scolding QC and Toby Fisher appeared for the Secretary of State.