Home > Cases > Secretary of State for Work and Pensions v Burley [2008] EWCA Civ 376

The Court of Appeal allowed the appeal of the Secretary of State relating to pension entitlement of persons entitled to a pension by virtue of deemed contributions credited under the Social Security (Australia) Order 1992, which gave effect to a bilateral agreement between the UK and Australia. The effect of the Australia Order was that a person was entitled, so long as they remained in the UK, to be credited with contributions for any period in which they were resident in the UK, but would cease to be so entitled if they left the UK (including by moving within the EU). The pensioners had benefited under the order until they moved to France. They argued that this disentitlement was contrary to EC Reg 1408/71. The Secretary of State successfully argued that this case, where entitlement arose from legislation giving effect to a bilateral agreement between the UK and a third (non-EU) state, fell within the UK derogation contained in Annex para 7 of section Y of Annex VI to the Regulation, and within the principle in Grana-Novoa v Landesversicherungsanstalt Hessen ( C-23/92) [1993] E.C.R. I-4505. It further held that this was not altered by reason of the repeal of the 1992 Order, and accepted that Regulation 883/2004 was not yet in effect.

Tim Buley appeared on behalf of the Secretary of State.

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