Tolley (Deceased) v the Secretary of State for Work And Pensions

This is an appeal with the leave of the tribunal from the decision of the Upper Tribunal dated 19 July 2012, reported at [2012] UKUT 282 (AAC), in which the Upper Tribunal allowed the respondent’s appeal from the First-tier Tribunal and concluded that she had been entitled to receive the care component of disability living allowance when she moved permanently from the United Kingdom to Spain in November 2002. In reaching that decision the Upper Tribunal concluded that it was bound by the Court of Appeal’s decision in the Commisioners of Her Majesty’s Revenue and Customs v Ruas [2010] EWCA Civ 291 (“Ruas”).

In Ruas the court gave detailed consideration to the proper interpretation of the ECJ’s judgment in Case C-85/96 Martinez Sala v Freistaat Bayern [1998] ECR I-2691. In summary, Mr de la Mare on behalf of the appellant contends that Ruas was wrongly decided and that in that decision the Court of Appeal misunderstood the ECJ’s judgment in Sala. Realistically he accepted that he would be unable to persuade this court simply to allow the appeal because it is plainly inconsistent with the Court of Appeal’s decision in Ruas, but he sought a reference to the CJEU. He pointed us to the decision of the court in Case 173-09 Elchinov [2011] 1 CMLR 29, which demonstrates that, notwithstanding the binding nature of the Ruas decision upon us, we do have a discretion to make a reference if we consider it appropriate to do so.

The problem faced by Mr de la Mare is that the unsuccessful appellants in Ruas, the Commissioners for Her Majesty’s Revenue and Customs, asked the Court of Appeal to make a reference in that case on substantially the same issue on which we are invited to make a reference. The Court of Appeal declined to do so. That request was repeated when the Commissioners applied to the Supreme Court for permission to appeal. The Supreme Court refused permission to appeal in these terms:

“Permission to appeal is REFUSED because the application does not raise an arguable point of law of general public importance which ought to be considered by the Supreme Court at this time, bearing in mind that the case has already been the subject of judicial decision and reviewed on appeal and because, in relation to the point of European Community law raised in the application, the application is also refused because the provision in question has already been interpreted by the Court of Justice in the Sala case.”

Mr de la Mare realistically accepts that, when the Supreme Court referred to the matter having been interpreted by the Court of Justice in the Sala case, that plainly is a reference to the Court of Appeal’s understanding in Ruas of how the Court of Justice had interpreted the relevant provisions in the Sala case. Although Mr de la Mare made a number of criticisms of the reasoning of the Court of Appeal in Ruas, it is plain that a majority if not all of those arguments were put by counsel on behalf of the Commisioners of Her Majesty's Revenue and Customs to the Court of Appeal in that case. Mr de la Mare referred us to post-Sala decisions of the ECJ/CJEU.

For my part I am not persuaded that these further authorities provide sufficient justification for us at this level to make a reference to the CJEU when the Supreme Court has very recently decided that it would not be appropriate to refer substantially the same question.

So for those reasons, I for my part would not make a reference, and it follows that I would also dismiss the appeal.

I agree.