New Judgment: Secretary of State for Work & Pensions v Tolley (Deceased acting by her personal representative)  UKSC 55
29 Wednesday Jul 2015
On appeal from:  EWCA Civ 1471
The Supreme Court unanimously decided to refer three questions to the CJEU in an appeal concerning whether the tribunals were right to rule that the respondent was entitled to continue to receive the care component of the Disability Living Allowance (DLA) when she moved permanently from the UK to Spain in 2002.
Lady Hale set out the terms of the reference to the court and stated in the view of the court, the principled solution to the case would be to treat the care component of DLA as an invalidity benefit for the purpose of the Council Regulation (EC) No 1408/71. She believed, unlike sickness benefits, DLA is not intended to be paid on a short term basis and is more akin to invalidity and old age benefits. This would have avoided the issues which had arisen in this case.
The questions referred are therefore as follows:
- Is the care component of the UK’s Disability Living Allowance properly classified as an invalidity rather than a cash sickness benefit for the purpose of Regulation No 1408/71?
- (1) Does a person who ceases to be entitled to UK Disability Living Allowance as a matter of UK domestic law, because she has moved to live in another member state, and who has ceased all occupational activity before such move, but remains insured against old age under the UK social security system, cease to be subject to the legislation of the UK for the purpose of art 13(2)(f) of Regulation No 1408/71?; (2) Does such a person in any event remain subject to the legislation of the UK in the light of Point 19(c) of the UK’s annex VI to the Regulation?; (3) If she has ceased to be subject to the legislation of the UK within the meaning of art 13(2)(f), is the UK obliged or merely permitted by virtue of Point 20 of annex VI to apply the provisions of Chapter 1 of Title III to the Regulation to her?
- (1) Does the broad definition of an employed person in Dodland Oberhollenzer  ECR I-5065 apply for the purposes of arts 19 to 22 of the Regulation, where the person has ceased all occupational activity before moving to another member state, notwithstanding the distinction drawn in Chapter 1 of Title III between, on the one hand, employed and self-employed persons and, on the other hand, unemployed persons?; (2) If it does apply, is such a person entitled to export the benefit by virtue of either art 19 or art 22? Does article 22(1)(b) operate to prevent a claimant’s entitlement to the care component of DLA being defeated by a residence requirement imposed by national legislation on a transfer of residence to another member state?
To watching the hearing please visit: Supreme Court website