Law Report: Income support was rightly withheld

21 October 1998

Perry v Chief Adjudication Officer

Court of Appeal (Lord Justice Beldam, Lord Justice Millett and Lord Justice Mummery) 15 October 1998

THE EXPRESS provision in section 124 of the Social Security Contributions and Benefits Act 1992 and regulation 4 of the Income Support (General) Regulations 1987 for the withholding of income support when a claimant was absent from the United Kingdom for a period of more than four weeks was not overriden by European Community law.

The Court of Appeal dismissed the appeal of Anthony Perry against the decision of the Social Security Commissioner, who had upheld the decision of the adjudication officer to withdraw income support in respect of his temporary periods of absence from the United Kingdom in 1991, 1992 and 1993.

The appellant suffered from incapacitating disabilities and normally received income support whilst at home in the United Kingdom. Since the end of November 1991 he had spent part of the winter in Portugal for therapeutic reasons. On each occasion his temporary period of absence had been for more than four weeks.

Whilst staying in Portugal the appellant had remained entitled to his contributory invalidity benefit and to his disability living allowance, but, under section 124 of the Social Security Contributions and Benefits Act 1992 and regulation 4 of the Income Support (General) Regulations 1987, he was not entitled to income support after four weeks' absence from the United Kingdom. The Social Security adjudication officer withdrew his income support in respect of his temporary periods of absence in 1991, 1992 and 1993.

The appellant appealed to the Social Security Appeal Tribunal. His appeal was dismissed and he appealed to the Social Security Commissioner, who upheld the decision of the Appeal Tribunal.

He then appealed to the Court of Appeal, contending that Article 10a of EC Regulation 1408/71 defined a territorial test for entitlement to "special non-contributory benefit", which was a test of habitual residence, not of presence, and that although present in Portugal during the periods in question, he had remained habitually resident in the United Kingdom throughout; and that income support came within the transitional provisions of Article 2(4) of EC Regulation 1247/92 because Article 2 simply required that the "special non-contributory benefit" be granted in addition to a pension, ie invalidity benefit or disability allowance; or that, at the most, there had to be some link between the purposes of the "special non-contributory benefit" and such a pension.

Richard Drabble QC (Ward Dewhurst) for the appellant; Nicholas Paines QC (Solicitor to the Department of Social Security) for the respondent.

Lord Justice Mummery said that the language of Article 10a recognised that special non-contributory benefits were granted "in accordance with the legislation of that state", i.e. the territory of the member state in which the relevant person resided. The legislation of the United Kingdom expressly provided for the withholding of income support during periods of a claimant's temporary absence from the United Kingdom.

Article 10a neither overrode nor displaced the conditions of entitlement to income support. That result was consistent with the purpose of the Regulation, which was to co-ordinate and not to harmonise the systems of social security, and also with the purpose of a benefit such as income support, which was to provide assistance in the form of an addition to income which was linked to the cost of living in that Member State.

Article 2(4) applied to special non-contributory benefits which were paid as a complement or supplement to a pension. It was not sufficient that income support was in fact paid to a claimant in parallel with an invalidity pension, nor was it sufficient that there was a link of the kind relied on between the purposes of the special non-contributory benefit and such a pension. The Social Security Commissioner's decsion was, accordingly, correct.