Where there is a “difference in views” between two European Union member states about which is required to pay a benefit to a claimant, EU law requires the state in which the claimant resides to make interim payments until the dispute is resolved. Secretary of State for Work and Pensions v Fileccia [2017] EWCA Civ 1907 concerned a “difference in views” between the UK and France, despite which the UK failed to make interim payments to Mr Fileccia for over four years.

Falling between the cracks

Article 6(2) of Regulation 987/2009 implements Regulation 883/2004. The latter law

is concerned with the co-ordination of social security systems across the European Union and the creation of more effective co-operation in order to facilitate the free movement of persons within the European Union. Article 6 of the implementing Regulation sets out a regime to cater for the situation in which there is “a difference in views” between the institutions or authorities of two or more Member States concerning the payment of cash benefits [paragraph 2].

This principle ensures that a claimant in need of a benefit is not disadvantaged while a dispute between two states is resolved. Anyone who has dealt with the bureaucracy of one state will know how long it can take to get an answer to a seemingly straightforward question – add in a second state and one can only imagine the difficulties.

Mr Fileccia is a retired Italian citizen who receives a French state pension. He has lived in the UK since 2009. In 2013 he applied to the Secretary of State for Work and Pensions for a carer’s allowance on account of him providing care to a friend with a disability. His claim was refused. The Secretary of State took the view that the UK was not the “competent state” to pay the benefit. Rather, France was responsible.

Unsurprisingly, the French authorities took the opposite view. This view was communicated to Mr Fileccia directly by a French official. This left Mr Fileccia in a situation where no country was willing to take responsibility, and without interim payment of the benefit to which he was entitled.

Standing up for “the protection of the individual”

The tribunals that heard Mr Fileccia’s case on its way up to the Court of Appeal saw no reason to disbelieve his evidence as showing “a difference in views”. The Secretary of State argued that the difference in views must be formally established and argued that it

was necessary for Mr Fileccia to have obtained a formal decision from the French authorities to the effect that France is not the competent Member State or, at least, to have been able to point to official documentation in which competence is denied in a clear and unambiguous way [paragraph 22].

It was even suggested by the Secretary of State that Mr Fileccia ought to have initiated and concluded the equivalent of judicial review proceedings in France

in order to obtain a cogent and authoritative statement as to the position of the French authorities.

Thankfully, Lady Justice Asplin, endorsing the approach taken at the Upper Tribunal by Judge Jacobs, disagreed with this Kafkaesque approach. Mr Fileccia’s accepted account was enough:

The legislative background as a whole reflects the intention to provide a system for the provision of benefits which whilst not being harmonised is co-ordinated, user friendly and enables people to access their rights as rapidly as possible… those provisions … are concerned with the protection of the individual whilst issues as to competency are dealt with between the relevant institutions or Member States [38].

… Of course, a difference in views will have arisen in a case in which there are conflicting formal decisions in Member States about the competency of those States to pay benefits to an individual or in circumstances which apply to that individual claimant. That does not mean that it is necessary for there to be a formal decision of a Member State in order for there to be a “difference of views”. It seems to me that the phrase, taken in context, is broad enough to cover a variety of circumstances ranging from conflicting formal, written decisions to the expression of different views as to the competence of the Member State by the State itself or an authorised representative of the relevant authority or institution. [39].

Practice implications

The Court of Appeal’s judgment should in theory enable benefit claimants who have exercised their EU free movement rights to receive interim payments while governments argue about who is responsible for their benefits in the long term.

Whilst this case was primarily about benefits, practitioners should note the Court of Appeal’s deference to the Upper Tribunal:

I have given weight to the practical and purposive approach taken by UT Judge Jacobs who has specialist experience and sits in a specialist chamber of the Upper Tribunal, in relation to something which is essentially a matter of fact. As Lord Hope noted in the Jones case, when agreeing with Lord Carnwath, an appeal court should not venture too readily into an area by classifying issues as issues of law which are really best left for determination by the specialist appellate tribunals [48].

The same principles can undoubtedly be applied in appeals against decisions of the Immigration and Asylum Chamber as well.