THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

DECISION OF THE UPPER TRIBUNAL JUDGE

Before: DJ May QC, Judge of the Upper Tribunal

Attendances:

For the Appellant: The appellant was not present nor was she represented.

For the Respondent: Mr Davidson, Advocate instructed by Miss McCurry, Solicitor, of the Office of the Solicitor to the Advocate General

The appeal is allowed.

The decision of the tribunal given at Edinburgh on 23 December 2009 is set aside.

The case is referred to the First-Tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out below.

REASONS FOR DECISION

1. This appeal came before me for an oral hearing on the 27 July 2010. The claimant was given due notice of the hearing by the office of the Upper Tribunal on the 12 July 2010. She did not attend the hearing. I decided in her absence to proceed with the hearing under and in terms of regulation 38 of the Tribunal Procedure (Upper Tribunal) Rules 2008 as I was both satisfied that the claimant had been notified and that it was in the interests of justice to proceed with the hearing.

2. The tribunal whose decision I have set aside found in fact that the claimant had made a claim for maternity allowance on the 21 October 2008. The child was born on the 9 August 2008. The expected week of confinement commenced on 3 August 2008. They also found that the maternity allowance period was from 18 May 2008 to 14 February 2009. They also made the following findings in fact

“3. The appellant went to stay in Poland about one month after the start of her pregnancy and remained in Poland on a temporary basis throughout her pregnancy. She returned to the United Kingdom on 25 July 2009. She had gone to stay in Poland to have the support of her family and friends during the pregnancy.

4. She received medical treatment in Poland. She was in hospital for several days due to complications in her pregnancy in December 2007. Her pregnancy was diagnosed on 12 December 2007 and certified by a doctor from a specialist outpatients’ clinic. The appellant was in hospital from 6 August to 14 August 2008 and her baby was born by Caesarean section during that period.”

These findings in fact are not in dispute. Mr Davidson, appearing on behalf of the Secretary of State, accepted that the claimant satisfied all the conditions for the allowance set out in section 35(1) of the Social Security Contributions and Benefits Act 1992.

3. The claimant’s claim for maternity allowance was refused by a decision of the 10 November 2008. That decision is recorded at page 26. The basis for the refusal was that she had not proved that she had become pregnant and had reached or been confined before reaching the 11^th week before her expected date of confinement. That decision was the subject of a revision on the 11 September 2009. The revised decision was in the following terms

“My revised decision is that [the claimant] is entitled to Maternity Allowance at the weekly rate of £117.18 from 18/05/08 to 14/02/09 (both dates included).

[The claimant] is disqualified for receiving Maternity Allowance from 18/05/08 to 14/02/09 (both dates included). This is because she was absent from Great Britain and does not satisfy the condition that she was authorized by the Secretary of State to go to another European Economic Area country to receive medical treatment, or required emergency medical treatment whilst in another EEA country.”

4. She appealed against that decision to the tribunal whose decision is appealed against to me. The appeal was disallowed and the decision of 11 August 2008 was confirmed.

5. The tribunal in considering the issue of disqualification found correctly in paragraph 10 of their statement that the claimant did not satisfy the provisions of regulation 2(1) or 2(1)(A) of the Social Security Benefit (Persons Abroad) Regulations 1975. That is obvious when the provisions are read and this was accepted by Mr Davidson. They correctly identified that the issue was whether the claimant was disqualified from receiving maternity allowance in terms of section 113(1)(a) of the Social Security Contributions and Benefits Act 1992. That statutory provision provides as relevant

“113(1) Except where regulations otherwise provide, a person shall be disqualified from receiving any benefit under parts II to V of this act… in respect of any person as the beneficiary…, for any period during which the person –

“(a) is absent from Great Britain;”

6. However, that disqualification has to be read in the context of this case along with article 22 of Council Regulation (EC) NO1408/71 of 14 June 2971. For the purposes of this case, the tribunal again accepted correctly, in my view, that article 22(1)(b) and (c) did not apply. Accordingly, the disqualification has to be considered along with article 22(1)(a) which is in the following terms

“Stay outside the competent state – Return to or transfer of residence to another Member State during sickness or maternity – Need to go to another Member State in order to receive appropriate treatment.

1. An employed or self-employed person who satisfies the conditions of the legislation of the competent State for entitlement to benefits, taking account where appropriate of the provisions of Article 18, and :

(a) whose condition requires benefits in kind which become necessary on medical grounds during a stay in the territory of another Member State, taking into account the nature of the benefits and the expected length of stay;…

shall be entitled:

(i) to benefits in kind provided on behalf of the competent institution by the institution of the place of stay or residence in accordance with the provisions of the legislation which it administers, as though he were insured with it; the length of this period during which benefits are provided shall be governed, however, by the legislation of the competent State;

(ii) to cash benefits provided by the competent institution in accordance with the provisions of the legislation which it administers. However, by agreement between the competent institution and the institution of the place of stay or residence, such benefits may be provided by the latter institution on behalf of the former, in accordance with the provisions of the legislation of the competent State.”

7. The tribunal found that

“9. …However, in the circumstances where the applicant had been abroad, it was necessary to consider whether the appellant was disqualified from receiving maternity allowance in terms of section 113(1)(a) of the Social Security Contributions and Benefits Act 1992….

14. The issue is whether the appellant is entitled to Article 22(1)(ii) “cash benefits” (the maternity allowance), under and in terms of Article 22(1) (a).

15. The appellant’s condition was her pregnancy. The “benefits in kind” required by her which became necessary on medical grounds was the admission to hospital and the birth of the baby by Caesarean section with ancillary nursing and medical care between 6 and 14 August 2008.

16. Commissioners’ decision R(S) 2/94 deals with a person in receipt of sickness benefits who had spent time abroad, during which he required urgent medical treatment for one day in hospital. It was held that he was potentially entitled (although he failed to satisfy another condition of entitlement) to sickness benefit for the one day that he was in hospital. He was disqualified under the equivalent of section 113(1)(a) of the 1992 Act for the remaining period.

17. If the appellant’s case is analogous to R(S) 2/94, it may be that she could be entitled to maternity allowance during the period 6 August to 14 August 2008. However, as no claim for the benefit had been made at that time, it cannot be said that she is “a person who satisfied the conditions of the legislation … for entitlement to benefits”.

18. In all the circumstances, the decision of the Secretary of State of 11 September 2009 is confirmed and the appeal is refused.”

8. The grounds of appeal are set out at pages 80 and 81. The grounds submit that Commissioners’ decision R(S) 2/94, which the tribunal relied upon, is wrong and that she did satisfy the provisions of regulation 2(1A) of the Social Security Benefit (Persons Abroad) Regulations 1975. Mr Davidson gave an oral submission on the appeal which in effect has supported the written submission of the Secretary of State at pages 94 to 98. It was his position that the claimant was entitled to a maternity allowance from the 21 July 2008 to the 14 February 2009. The restriction of the dates arose simply as a result of the claimant’s late claim. I accept that any entitlement by virtue of the lateness of the claim could not arise before the 21 July 2008.

9. Contrary to the claimant’s position, Mr Davidson did not seek to persuade me that the decision of Mr Commissioner Goodman in R(S) 2/94 was wrong but rather it had no application to maternity cases. That case related to a claimant who had sustained an injury in a road traffic accident in 1990 and was awarded sickness benefit from 16 February 1990 to 30 August 1990. On 29 May 1990, he went to Portugal to convalesce and on 28 June 1990 visited a hospital because of severe pain in his right leg. The claimant was treated on that day and given further injections for later use and a number of repeat prescriptions. He returned to Great Britain on the 29 July 1990. In that case, the effect of article 22(1)(a) was considered by the Commissioner. He said

“17. I have looked at the overall pattern of Article 22 of Regulation 1408/71, in the context of the general UK law as to disqualification or otherwise for receipt of benefits abroad. My conclusion is that Article 22(1)(a) has a limited application because there are other routes, either in the Article itself (sub-paragraphs 1(b) and (c)) or in regulation 2(1) of the Social Security Benefit (Persons Abroad) Regulations for a payment abroad of a more extended period of sickness benefit. I consider that what is intended by paragraph 1(a) of Article 22 of Regulation 1408/71 is that where a person’s condition necessitates immediate benefits in kind when he is in the territory of another Member State he shall be entitled to those benefits for the period that his condition necessitates them and, for that period only, to cash benefits as well….”

10. The position of the Secretary of State as advanced by Mr Davidson was that if the claimant had remained in the United Kingdom, she would have received the benefit. She had made the relevant contributions. The object of the legislation was to give cash to women who were giving birth to children for a fixed period which was defined by statute in relation to the entitlement of that benefit. It was the position of the Secretary of State that pregnancy fell to be regarded as a serious medical condition which necessitates medical treatment and that the article would have applied even in circumstances where the claimant had had the child at home and apart from the birth had not sought or been given benefits in kind of the type specified in article 22 in Poland. I was asked to adopt a purposive approach to the legislation for the purposes of making a finding that the claimant was not disqualified in terms of section 113(1)(a) from receiving the benefit by virtue of the application of article 22(1)(a).

11. In the event, I am not prepared to hold that the decision of Mr Commissioner Goodman had no application to this case. I am also satisfied that he made a decision which was correct in law contrary to the argument advanced by the claimant in the grounds of appeal for reasons set out below. Mr Commissioner Goodman in reaching the conclusion he did said in paragraph 18 of his decision

“…It appears to me that any other construction of Article 22(1)(a) could have capricious results since a casual one day visit to a doctor abroad could therefore give potentially unlimited entitlement to sickness benefit. I cannot think that that is what is meant by what I regard as the ‘emergency’ provisions of Article 22(1)(a)….”

12. I think that Mr Commissioner Goodman is correct in his view of the potential for a capricious result. Article 22 appears to (1) protect against disqualification of benefit in the competent State whilst the claimant is living in another EEA state and requires benefits in kind which in this case would be hospital treatment upon the birth of her baby and, (2) make provision for that treatment. It seems to me that the provisions are linked. Any construction of the regulation, purposive or otherwise, has to take that into account. I consider that the Secretary of State is overgenerous in his view that because the benefit is for a fixed period and is a maternity one the disqualification is obviated for the whole period of the currency of the benefit, where the claimant remained in Poland throughout. Whilst it is a barely tenable though not, on the facts, convincing argument that the existence of pregnancy in itself gives rise to satisfaction of article 22(1)(a) and prevents disqualification, I do not consider that it is arguable that, unless there was a requirement of the type specified after the birth of the child, the claimant could be protected from disqualification after that date. I am prepared, in the circumstances to accept with reluctance the Secretary of State’s concession that she would not be, in the light of finding in fact 2 of the tribunal, disqualified from the maternity allowance for the very short period from 21 July 2008, the date when her entitlement on the claim commenced to the date of the birth of the child on 9 August 2008, as opposed to just the period she was in hospital in the few days leading up to the birth of the child. But for the Secretary of State’s concession I would not have been prepared to go that far myself and would have restricted the period she was not disqualified to the days she was in hospital. However, after the birth of the child any such necessity would require to be established as a matter of fact. Without such necessity the claimant would be disqualified and article 22(1)(a) would not assist her. Mr Commissioner Goodman’s decision on the restriction on the operation of article 22(1)(a) has subsisted for a long time and there are good reasons, which I accept, for the restriction on its operation which he set out in paragraph 17 and 18 of his decision. As I am not in a position to make any decision in fact as to any time after the birth of the child I cannot make a decision as to whether the disqualification from benefit by virtue of the claimant’s residence in Poland is obviated by article 22(1)(a) following the birth. Accordingly, I hold that for the period from 21 July 2008 to 9 August 2008, the tribunal erred in law. The error is not due to any fault on behalf of the tribunal as the Secretary of State has radically altered his position before me and the tribunal proceeded on the basis of a submission that the Secretary of State has withdrawn. The case is remitted.

13. In light of the concession of the Secretary of State, the freshly constituted tribunal should find that the claimant is entitled to the allowance from 21 July 2008 to 9 August 2008 and that payment of her entitlement is not the subject of disqualification under section 113(1)(a). Thereafter, it is for the claimant to establish before the tribunal as a matter of fact any period she wishes to assert she does not fall within the disqualification by virtue of requiring benefits in kind which became necessary on medical grounds during her stay in Poland up to the end of her maternity allowance period.

(Signed)

DJ MAY QC

Judge of the Upper Tribunal

Upper Tribunal (Administrative Appeals Chamber)