The appellant in the case of Konevod v Secretary of State for Work And Pensions [2020] EWCA Civ 809 moved to Cyprus in 2014 to become a carer for a friend, Ms Ozturk. Both Mr Konevod and Ms Ozturk had lived and worked in the UK, qualifying for state pensions here. Ms Ozturk also qualified for a UK disability benefit called attendance allowance, which she was allowed to claim from Cyprus. Mr Konevod tried to follow suit, applying to the Department for Work and Pensions for carer’s allowance a few months after moving to Cyprus. The DWP refused, saying that he should claim in his new country of residence.

On appeal, Mr Konevod argued that the DWP was the “competent institution” for the purposes of Article 21 of EU Regulation 883/2004. He relied, in part, on the Court of Justice of the European Union decision in C-430/15 Tolley — this being one of several test cases on the implications of that decision. Mr Konevod argued, for example, that “in the light of Tolley there is no question of being insured under UK legislation for some purposes [ie his pension] but not others”.

The ins and outs of Tolley need not detain us: while it may be important in other scenarios for which there are different test cases, the Court of Appeal held that it was mostly “of little assistance in the present case”. Not least because Tolley was decided under an older Regulation, not Regulation 883/2004, and there are “material differences” between the two. Sir Stephen Richards held that

Article 22(1) of Regulation 1408/71, on which the decision in Tolley turned, has no equivalent in Regulation 883/2004. Moreover the present case does not involve the export of existing benefits or accrued rights, which is subject to different considerations and to a separate concession by the SSWP [in] KR v Secretary of State for Work and Pensions.

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He also rejected an alternative argument based on “the close relationship between [Mr Konevod’s claim] and the attendance allowance payable to Ms Ozturk (where there is no dispute that the United Kingdom is the competent Member State)”. Although the two benefits claims were indeed closely linked, “they remain separate benefits with different conditions of entitlement and have to be claimed by, and are payable to, different people”.

The upshot was that Cyprus, not the UK, was responsible for processing any benefits claim by Mr Konevod and the appeal was dismissed.

The Court of Appeal also noted that while it had arrived as the same result as the Upper Tribunal (Administrative Appeals Chamber) in the case, its reasoning was different. In particular, the tribunal had been “wrong to proceed on the basis that the appellant was an ‘insured person’ for the purposes of Article 21”, and some of its analysis “involved unnecessary complexity”. In benefits law? Perish the thought.