Decision of the Upper Tribunal
(Administrative Appeals Chamber)
As the decision of the First-tier Tribunal (made on 5 October 2012 at Liverpool under reference SC064/11/03488) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007 and the decision is RE-MADE.
The decision is: the claimant is not entitled to a carer’s allowance on and from 1 June 2011.
Reasons for Decision
A.	History and background
1.	The claimant is British. He was born on 21 July 1948 and moved to Spain on 27 September 2001. He has lived and, in legal terms, been habitually resident there since then. In 2011, he made a claim for a carer’s allowance in respect of the care of his partner, who is disabled. She attained 60 in 1999. They live together as husband and wife, but are not married. He made the claim on 3 August 2011, asking for entitlement to date from 1 June 2011. The Secretary of State refused the claim and the claimant exercised his right of appeal to the First-tier Tribunal. The tribunal allowed the appeal and decided that he was entitled to a carer’s allowance from 3 May 2011. I gave the Secretary of State permission to appeal to the Upper Tribunal and allowed the claimant one month in which to comment on my reasons for doing so. In view of what he has had to say, I have not troubled the Secretary of State to reply.
B.	Regulation (EEC) 1408/71
2.	As the claimant did not satisfy the domestic residence conditions for an award, his claim could only succeed if he could rely on EU law. There are two Regulations that might assist him. 
3.	This is one of those Regulations. The First-tier Tribunal decided that he was entitled to rely on it. That was wrong in law as I explained in my grant of permission to appeal. 
4.	This Regulation no longer applied when the claimant made his claim for carer’s allowance. There is a transitional provision in Regulation 883/2004. Article 87(8) provides:
If, as a result of this Regulation, a person is subject to the legislation of a Member State other than that determined in accordance with Title II of Regulation(EEC) No 1408/71, that legislation shall continue to apply while the relevant situation remains unchanged and in any case for no longer than 10 years from the date of application of this Regulation unless the person concerned requests that he/she be subject to the legislation applicable under this Regulation. The request shall be submitted within 3 months after the date of application of this Regulation to the competent institution of the Member State whose legislation is applicable under this Regulation if the person concerned is to be subject to the legislation of that Member State as of the date of application of this Regulation. If the request is made after the time limit indicated, the change of applicable legislation shall take place on the first day of the following month.
5.	As I read that provision, it applies to preserve entitlement that has already been established. If so, it allows that entitlement to continue for no longer than 10 years. It does not, on my understanding, allow a claimant to rely on it in order to establish entitlement from a date after Regulation 883/2004 came into force. That is the only interpretation that is consistent with the nature of a transitional provision. If it allowed a claimant to make a claim and rely on Regulation 1408/71 for ten years, it would effectively postpone the replacement of that Regulation by Regulation 883/2004 and have the effect that two Regulations were fully in force simultaneously. Neither of those results is impossible, but they are so unlikely and unusual that a clear and express provision would be needed to produce that outcome. There is no such provision. 
C.	Regulation (EC) No 883/2004
6.	As Regulation 1408/71 does not apply, the claimant can only benefit (if at all) from this Regulation. It came into force on 1 May 2010, the year before the claimant made his claim. The First-tier Tribunal decided that the claimant was not within the personal scope of this Regulation and could not derive any benefit from it. That part of its decision was correct. The claimant would need to rely on Article 29, which applies to cash benefits for person receiving a pension and members their family. The claimant was not a pensioner at the time of his claim, although his partner was. The question, therefore, is whether the claimant was a member of her family. That is governed by the definition in Article 1. This provides that for sickness benefits (which a carer’s allowance is), whether a person is a family member depends on the definition in domestic legislation. As the First-tier Tribunal pointed out, there is no definition that applies to section 70 of the Social Security Contributions and Benefits Act 1992, which governs carer’s allowance. That is because it is not necessary for the person who claims an allowance to be a member of the disabled person’s family in domestic law. It is, though, a condition of EU law under this Regulation, which cannot apply in the absence of any relevant definition. 
7.	The result of this analysis is that the claimant was not able to rely on Article 29 in his own right and could not rely on it as a member of his partner’s family as there is no requirement in domestic law that he be a member of her family or household. He is therefore outside the personal scope of the Regulation. In this respect, the scope of domestic law determines the scope of EU law.
D.	The result
8.	The result is that the claimant was not entitled to a carer’s allowance under domestic law and could not, at the time of his claim, benefit from either EU Regulation. The Secretary of State was right to refuse the claim and I have restored the decision to that effect.
9.	I should mention briefly the claimant’s response to this appeal. He has not presented any legal argument, but merely remarked that it would have been cheaper to pay him the allowance than to go through the appeals system. That may be right, but a tribunal cannot award a social security benefit on that basis. Entitlement to benefits is governed by legislation and no one – not even the Secretary of State, let alone a tribunal – has the power to award a benefit on any other basis that than laid down in the legislation. 

Signed on original
on 24 June 2013	Edward Jacobs
Upper Tribunal Judge