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Neutral Citation Number:	2010 UKUT 95 AAC
Reported Number:
File Number:	CPC 1648 2009
Appellant:	EC
Respondent:	Secretary of State for Work and Pensions
Judge/Commissioner:	Other Judges / Other Commissioners/Deputy Commissioners
Date Of Decision:	31/03/2010
Date Added:	05/05/2010
Main Category:	European Union law
Main Subcategory:	Council regulations 1408/71/EEC and (EC) 883/2004
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2010] AACR 39 European Union law – Regulation (EEC) 1408/71 – whether state pension credit is a special non-contributory benefit which is not exportable The claimant was in receipt of pension credit from its introduction in 2003, receiving both a guarantee credit and a savings credit. Section 1 of the State Pension Credit Act 2002 requires a claimant to be in Great Britain. In 2004 she moved permanently to Spain and payment of pension credit stopped. In 2008 she claimed a pension credit, and asked for any award to be back-dated to 1 March 2004. She said that she believed she was entitled to receive the benefit in Spain through the operation of European Union law. The claim was refused on the grounds that the benefit was not exportable and that the appellant was not resident in Great Britain. That decision was upheld on review and before the First-tier Tribunal. The claimant appealed to the Upper Tribunal. She argued that pension credit is exportable under Regulation 1408/71, because it is an old-age benefit within the scope of the Regulation and also that she had earned the right to the savings credit component through her savings for her own pension. The Secretary of State conceded that the appellant was within the personal scope of the Regulation, but argued that pension credit is a special non-contributory benefit listed in Annex IIa to Regulation 1408/71, whose payment can be restricted to persons in Great Britain by virtue of Article 10a. Held, allowing the appeal, but substituting a decision to the same effect, that: 1. there is a prima facie case that pension credit is a special non-contributory benefit which cannot be exported from the United Kingdom as it is listed in Annex IIa (paragraphs 22 to 27); 2. however, while listing of a benefit in Annex IIa is a necessary condition of being able to limit the exportability of a benefit under Article 10a, the Court of Justice of the European Communities has determined that such benefits may be examined to see whether they are properly included in Annex IIa as special non-contributory benefits: Case C-215/99 Jauch v Pensionsversicherungsanstalt der Arbeiter [2001] ECR I-1901 and Case C-43/99 Leclere and another v Caisse Nationale des Prestations Familiales [2001] ECR I-4265 (paragraph 28); 3. pension credit is to be categorised as a special benefit as defined in Article 4(2a) since it is supplementary or ancillary to old-age benefits by reasons of the age qualifications for its payment and both guarantee credit and savings credit have strong features of social assistance in that they are means-tested (Case C-160/02 Skalka v Sozialversicherungsanstalt der Gewerblichen Wirtschaft [2004] ECR I-5613 and Case C-265/05 José Perez Naranjo v Caisse Régionale d’Assurance Maladie [2007] ECR I-347 followed) (paragraphs 40 and 41); 4. pension credit is to be categorised as a non-contributory benefit as defined in Article 4(2a) as entitlement is not dependent on the payment of contributions and there is no direct link in its funding to monies received by virtue of national insurance contributions (paragraphs 42 and 43); 5. Regulation 883/2004, which replaced Regulation 1408/71 with effect from 1 May 2010, was not in effect at the material time and does not change the position in relation to the regime for special non-contributory benefits under Regulation 1408/71 (paragraph 45); 6. pension credit is properly categorised as a special non-contributory benefit within Regulation 1408/71, and it follows that its payment can be limited to those living in Great Britain, and that the First-tier Tribunal reached the right conclusion, although its decision was inadequately reasoned (paragraphs 44, 50 to 52).
Decision(s) to Download:	[2010] AACR 39 bv.doc