AS v Secretary of State for Work and Pensions

Grant permission to appeal

Dispense with the need for a substantive response by the Appellant .

Set aside the decision made in respect of the appeal made on 20 November 2024.

Remake the decision which is that the UK is the competent state under the relevant Social Security Coordination Regulations (Regulation 883/04).

Order that the SSWP needs to consider the Appellant’s entitlement to Carers Allowance (“CA”) on that basis.

This is an appeal to the Upper Tribunal about whether or not the Appellant – who I shall call AS in this decision – may be eligible for Carers Allowance – “CA” in this decision.

AS arrived in the United Kingdom in 2006. Her husband became unwell (he had previously been working in the UK) and so from 16 September 2013 she received carers allowance (CA) to look after him. She has settled status because of Appendix EU of the European Union Settlement Scheme and the Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland and the European Union Atomic Energy Community – known usually as the “EU withdrawal agreement”. Under Article 30 (1) of that agreement she is someone covered by it as an EU national residing in the UK at the end of the transition period. Under Article 31 of that agreement, social security entitlements for EU citizens living in the UK after transition would be subject to the relevant EU social security co-ordination regulations – Regulation 883/2004.

Regulation EC 883/2004 provides a framework to decide whether individuals who may reside in other EU countries (and the UK if they have settled status) are entitled to claim benefits in their country of residence, or whether they must claim benefits in the country where th-202ey previously resided or another EU country. Carers allowance is a cash sickness benefit for the purposes of these regulations. Section 65(7) of the Social Security Contributions and Benefits Act 1992 read with section 5(2) of the Social Security (Disability Living Allowance, Attendance Allowance and Carers Allowance) (Miscellaneous Amendments) Regulation 2011 says that someone is only entitled to CA if the UK is the relevant body – known as the “competent authority” for the payment of cash sickness benefits.

On 27 July 2022, AS began to receive a state pension from Poland as she became of pensionable age . When the Secretary of State for Work and Pensions (SSWP) was notified of this, she made a supersession decision to end the award of carer’s allowance from that date. .

AS applied to the First Tier Tribunal. She submitted that she had settled status and that carers allowance was not a benefit payable in Poland and that the social security co-ordination regulations should only apply to those living in Poland or who had previously received benefits in Poland and then moved to the UK.

The First Tier Tribunal held a hearing of the appeal in September 2024. It decided , looking at Article 11(3) (e ) with Articles 25 and 29 (1) of the Co-ordination regulations that Poland was the competent state as AS was in receipt of a Polish pension and therefore they were responsible for paying cash benefits. This was the position as set out in JM v SSWP [2018] UKUT 239 (AAC). For these reasons the Judge found that the competent state was Poland and not the UK and so AS was not entitled to carer’s allowance.

AS appealed against this decision. Permission to appeal was refused by the First Tier Tribunal (“FTT”) on 14 May 2025 . AS then appealed to the Upper Tribunal. Upper Tribunal Judge Jacobs on 22 October 2025 asked the SSWP to file submissions as whether or not the Upper Tribunal should follow the decision in SE v Secretary of State for Work and Pensions [2024] UKUT 405 which had been decided after the FTT decision in this case.

The SSWP filed its submissions on 11 December 2025. It submitted that because of the decision in SE (above), had the FTT had the benefit of the SE judgement, they would have found that the UK was the competent state by examining Article 11 of Reg 883/2004. I agree with these submissions.

SE decides that when determining which is the competent authority , one examines Article 11 of 883/2004. Article 11 says:

“General rules

1.

Persons to whom this Regulation applies shall be subject to the legislation of a single member state only. Such legislation shall be determined in accordance with this Title. …

3.

Subject to articles 12 to 16:

(a)

a person pursuing an activity as an employed or self-employed person in a member state shall be subject to the legislation of that member state;

(b)

a civil servant shall be subject to the legislation of the member state to which the administration employing him/her is subject;

(c)

a person receiving unemployment benefits in accordance with article 65 under the legislation of the member state of residence shall be subject to the legislation of that member state;

(d)

a person called up or recalled for service in the armed forces or for civilian service in a member state shall be subject to the legislation of that member state; (e) any other person to whom sub-paragraphs (a) to (d) do not apply shall be subject to the legislation of the member state of residence, without prejudice to other provisions of this Regulation guaranteeing him/her benefits under the legislation of one or more other member states.”

For the purposes of deciding which State is responsible for the benefits, the starting point is the state of applicable legislation under Article 11. The general rule under Article 11 of the Regulations (read with others) is that an economically inactive insured person (such as AS) is subject to the legislation in the country where he or she resides and therefore entitled to benefits – including carers allowance which is a cash sickness benefit under Title III of the Regulations , i.e. to those benefits which exist in the country where the person resides. The regulations which the SSWP had relied upon by deciding that a pensioner and his family would not benefit from that general rule were held, in SE, to only be applicable where they are not entitled to be paid such benefits in the state at which they are resident.

The First Tier Tribunal reached the incorrect decision by considering that Regulation 29 applied to AS’s situation. Whilst this was the position before SE, the case of SE (which followed a Court of Appeal decision called Harrington v SSWP [2023] EWCA Civ 443) found that Article 29 does not have the effect that the FTT considered that it did, and that in fact the Article was to be used only where Article 11 did not apply , not as the general default position.

Given these conclusions, the FTT decision was wrongly made, and should be changed on appeal. The relevant competent authority under the co-ordination Regulations for AS would be the United Kingdom.

Given the position of the SSWP, I do not consider it necessary for AS to have to make submissions on this appeal. I grant permission to appeal and set aside the decision under s12(2)(b)(ii) of the Tribunal Courts and Enforcement Act 2007 as the FTT made an error of law.

Given that the FTT’s decision and the decision of the SSWP relied upon an erroneous interpretation of the co-ordination regulations, I am able and have the power to substitute the decision of the FTT for my own. I do so and determine that the relevant competent authority under Article 11(3)(e) for AS is the United Kingdom.

The SSWP accepts that the FTT decision was wrongly made. I considered whether to ask IM to make submissions but decided that as the position is clear, it was not necessary. I also considered if I needed to quash the decision but re-send it back to the FTT for a further decision. I consider that such is not necessary as there is only one answer that the FTT could give and so I substitute my decision for that of the FTT.

AS raised various grounds of appeal . I do not need to deal with them as my conclusion in respect of who is the competent authority disposes of this appeal.

I direct that the SSWP should reconsider AS’s entitlement to CA.