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Neutral Citation Number: 2012 UKUT 26 AAC
Reported Number:
File Number: CDLA 2002 2006
Appellant: NG
Respondent: Secretary of State for Work and Pensions
Judge/Commissioner: Judge J. Mesher
Date Of Decision: 20/01/2012
Date Added: 06/02/2012
Main Category: Residence and presence conditions
Main Subcategory: ordinary residence
Secondary Category: European Union law
Secondary Subcategory: Council regulations 1408/71/EEC and (EC) 883/2004
Notes: Reported as [2012] AACR 35. Residence and presence conditions – exportability of disability living allowance to EU European Union Law – Regulation (EC) 1408/71– whether disability living allowance mobility component is a special non-contributory benefit which is not exportable Following the Court of Justice of the European Union’s decision in Case C-537/09 Bartlett v Secretary of State for Work and Pensions, as reported in [2012] AACR 34, the mobility component of the disability living allowance (DLA) is non-exportable being a special non-contributory benefit. However, the claimant’s representatives asked the Upper Tribunal to refer further questions to the Court of Justice of the European Union (ECJ) arguing that: the Court’s reasons for the severability of the mobility component from the rest of the DLA and its treatment as a benefit within Council Regulation (EC) No 1408/71 were inadequate; to apply the ruling in an United Kingdom tribunal would violate the claimant’s fundamental rights under European Union law to an effective remedy and a fair trial; and the correctness of the ruling was questionable given the ruling of the Fifth Chamber on 5 May 2011 in Case C-206/10 European Commission v Federal Republic of Germany. Held, dismissing the appeal, that: 1. the ECJ set out the relevant general principles in Case 69/85 Wünsche Handelsgesellschaft GmbH v Federal Republic of Germany [1986] ECR 947. It held that a judgment in which it give a preliminary ruling on the interpretation or validity of an act of a Community institution conclusively determines a question of Community law and is binding on the national court. The national court may make a further reference to the ECJ if it cannot understand or apply the judgment, or there is a fresh question of law, or when it submits new considerations which might lead to give a different answer. But the right to refer further questions cannot be used as a means of contesting the validity of the original judgment. In this case the ECJ’s ruling was both clear and unambiguous and contained nothing which would entail any breach of fundamental rights. Therefore there was no legal basis for referring further questions to the ECJ and the ruling had to be applied by the United Kingdom judicial authorities (paragraphs 6 to 9); 2. the case of Case C-466/00 Kaba v Secretary of State for the Home Office [2003] ECR I-2219 does not affect the fundamental principle that the national referring court cannot challenge the validity of the ruling given by the ECJ (paragraphs 11 to 13). The issuing of the ruling in the case of the Commission v Germany does not constitute a new consideration justifying the reference of the same, or further, questions to the ECJ (paragraphs 14 to 15); 3. the discussion in Case C-503/09 Stewart v Secretary of State for Work and Pensions (21 July 2011) concerned the presence conditions of entitlement for incapacity benefit in youth for which Regulation No 1408/71 provided no co-ordination rule. The position is different where Regulation No 1408/71 does provide a co-ordination rule. The judgment in Stewart therefore throws no doubt on the ECJ’s conclusion nor provides any justification for reference of further questions or of the same questions again (paragraphs 17 to 21).
Decision(s) to Download: CDLA 2002 2006-01.doc CDLA 2002 2006-01.doc  
[2012] AACR 35ws.doc [2012] AACR 35ws.doc