CG 5425/95 

Social Security and Child Support Commissioners 
SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992
SOCIAL SECURITY ADMINISTRATION ACT 1992
APPEAL FROM DECISION OF SOCIAL SECURITY APPEAL TRIBUNAL ON A QUESTION OF LAW 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
 
Mr Commissioner Howell QC
Claim for: Invalid Care Allowance
Appeal Tribunal: Stockport SSAT 
[ORAL HEARING]

1. The decision of the social security appeal tribunal given on 27 January 1995 was erroneous in point of law. I set it aside and substitute my own decision which has the same practical result for the period before 28 October 1994 but for different reasons. 

2. My decision is that the claimant is entitled to invalid care allowance from 28 October 1994 but not for any period before that, as: (1) she did not meet the requirements for invalid care allowance under United Kingdom social security legislation until reg. 10A Social Security (Invalid Care Allowance) Regulations 1976 SI No. 409 was inserted by 1994 SI No. 2556 on 28 October 1994; and (2) her circumstances did not make her an individual entitled to rely on the direct effect of EC Council Directive No. 79/7/EEC of 19 December 1978 (on the progressive implementation of the principle of equal treatment for men and women in matters of social security) for the period between 22 December 1984 and 28 October 1994. 

3. The reason for (2) is that the facts do not show that she fell within the class of individuals who have been held entitled to rely on such direct effect by the European Court of Justice in Case C31/90 Johnson v CAO (No. 1) [1991] ECR 3723. But for this, she would have been entitled to be paid the benefit by the direct effect of directive 79/7 from 2 March 1988 (1 year before the making of her actual claim) but not earlier. 

4. I held an oral hearing of this appeal at which the claimant was represented by Mr P. Drake of the Stockport CAB, assisted by the claimant's husband. The adjudication officer was represented by Mr J. Heath of the DSS Solicitor's Department. 

5. This case concerns the invalid care allowance under s.70 Social Security Contributions and Benefits Acts 1992. This is a non-contributory allowance payable to people who are or have been looking after a severely disabled person instead of going out to work. Under s.70(5) as in force before 28 October 1994, a person over the state pensionable age of 65 for a man or 60 for a woman could not qualify for the allowance unless he or she had already been entitled to it immediately before attaining that age. 

6. The claimant is a lady now aged 74 who last had a paid job in 1949, which she gave up in order to start a family. She and her husband had a son born in 1950 and twins born in 1956, all of whom have gone on to higher education and done extremely well. This is no doubt due in great part to the fact that their mother gave up any question of an outside career for herself in order to bring them up and provide them with a secure home background. 

7. In 1973, shortly before the youngest of the children had left for university, the claimant also began looking after her own mother. She did so for the remainder of her mother's long life. Her mother died on 26 June 1989 at the age of 941/2, and had been in deteriorating health for some years. For the last 7 years of her life she received attendance allowance as a severely disabled person. The material sequence of dates for the present appeal is as follows:
18 September 1981: The claimant attained the age of 60. 
22 February 1982: Attendance allowance awarded to the claimant's mother and paid for the rest of her life. 
22 February 1982: Attendance allowance awarded to the claimant's mother and paid for the rest of her life. 
22 December 1984: The period for the United Kingdom to bring its domestic law into compliance with EC Directive 79/7 expired. 
18 September 1986: The claimant attained the age of 65. 
1 March 1989: The claimant made a claim for invalid care allowance in respect of her mother, claiming that she was entitled to this by virtue of a ruling of the European Court of Justice. 
13 October 1991: This claim was rejected. 
10 January 1992: The claimant appealed to the tribunal. 
2 June 1992: An official of the DSS informed the claimant on the telephone that the Secretary of State would consider in her case making payment of the benefit on a retrospective basis from 22 December 1984 as an "extra statutory or ex gratia payment" in view of the European law developments, though this would await the outcome of further cases being taken to the Court of Justice. 
22 July 1992: The tribunal appeal was stood over to await the decision of the Court of Justice in Case 328/91 Thomas v CAO, where the issue was whether the different age conditions applying to men and women for invalid care allowance under the current United Kingdom legislation were discriminatory and contrary to directive 79/7. 
30 March 1993: The European Court of Justice held that they were. 
27 January 1995: The appeal was eventually determined by the tribunal, which held that the claimant was not entitled to invalid care allowance for her mother because she had not had any entitlement to the allowance at any point before attaining the age of 65 and that the terms of the United Kingdom legislation prevented any person (even a man) who had not been entitled to invalid care allowance before attaining 65 qualifying for it for the first time after attaining that age. 

8. Against that decision the claimant appeals with the leave of the tribunal chairman granted on 31 March 1995. Her main grounds set out in her notice of appeal dated 23 June 1995 and amplified in later submissions are that the EC directive had never been satisfactorily implemented into United Kingdom law before October 1994, the obligation to provide invalid care allowance on an equal basis for men and women from 22 December 1984 had been ignored by the Department of Social Security for many years after that, and that persons such as herself who had in fact been looking after elderly relatives since before the age of 65 had been misled and prevented by the department from qualifying for their rights to invalid care allowance because its forms and literature continued to state that claims could not be made by women who had not met the statutory conditions before attaining the age of 60. 

9. The adjudication officer opposes the appeal on the ground that the United Kingdom legislation making it necessary for a person to have claimed invalid care allowance before the age of 60 or 65 did not make it impossible for an individual to assert his or her community law rights under the directive, but that in any case the claimant was not entitled to the protection of the directive as she was not a member of the "working population" within the meaning of Art 2. It is conceded however that by the new reg. 10A she is entitled to the allowance from 28 October 1994 for the rest of her life. 

10. It is convenient to look at the material provisions of the United Kingdom legislation as from time to time in force, before considering the effect that the community law has on this appeal. As explained by Slade LJ in Thomas and Others v CAO [1991] 2 QB 164, invalid care allowance is a non contributory benefit intended to replace in some measure the income and pension which a person caring for an invalid at home might otherwise have been able to get by going out and taking paid employment. So far as material to the claimant, the conditions in s. 70(1) and (2) of the 1992 Act (formerly s. 37 Social Security Act 1975) were that she must have been regularly and substantially engaged in caring for a severely disabled person, she was not herself "gainfully" employed in the cash sense, and that the severely disabled person was a relative of hers. The claimant's mother counted as a severely disabled person under sub s. (2) from 22 February 1982, when she began receiving attendance allowance. The claimant thus satisfied all of these conditions. However s.70(5) before 28 October 1994 excluded her from benefit by imposing the additional condition that she must have been entitled to the allowance immediately before attaining the "pensionable age" of 60. This condition she could not meet because her mother was not awarded attendance allowance until shortly after she herself attained 60. 

11. The legislation thus discriminated against the claimant as a woman, because a man in identical circumstances looking after his mother would have been able to claim the allowance from 22 February 1982, when he would have been still under 65. However she had no right to complain about this as the law stood at the time, and unsurprisingly she did not attempt to make a claim before she herself attained 65. Then and for many years afterwards, the department's advice and information continued to say categorically that no woman who had not already qualified before the age of 60 could apply for or get invalid care allowance, and if the claimant had made any such claim it would simply have been rejected out of hand. 

12. The department's view was that this condition, although discriminatory, was justified by the continuing difference in state pensionable ages which the United Kingdom was permitted for the time being to retain. Accordingly the time limit for implementation of directive 79/7 on 22 December 1984 came and went without the department making any change in what it told claimants, and without any attempt by the United Kingdom government to introduce amendments to the legislation so as to remove the continuing discriminatory condition based on pension ages. The claimant put in her claim after press comment in 1988 or 1989 about further judgments of the Court of Justice had alerted her and her husband to the possibility that the government advice might be wrong. Consistently with the stance still being adopted by the department, the claim was rejected. 

13. The relevant community law can be summarised shortly as follows: 
(1) Art 4(1) of directive 79/7 prohibits all discrimination on grounds of sex and applies to benefits such as the invalid care allowance: the directive requires the principle of equal treatment, which is a fundamental principle of European Community law, to be applied to benefits for invalidity both where the claimant is the invalid and where the invalid is another person for whom the claimant is caring. (Judgment of 24 June 1986 in case 150/85 Drake v CAO [1986] ECR 1995). 
(2) This principle should have been applied by the United Kingdom to invalid care allowance, as a benefit within the scope of directive 79/7, at all times after 22 December 1984 when the time for bringing United Kingdom domestic law into compliance with the directive under Art 8(1) expired. There has been no limitation ratione temporis in any of the cases in which the Court of Justice has defined the scope of directive 79/7 to include invalid care allowance, so that the United Kingdom was continuously in breach of its community law obligations from 23 December 1984 until the domestic law was finally brought into compliance with the directive. 
(3) What is said in (2) above applies to the discriminatory condition based on pension age which was retained in the United Kingdom legislation until 28 October 1994, as well as to the other conditions discriminating against married women that were at issue in the Drake case and were removed earlier. The pension age condition was prohibited by directive 79/7, and not exempted from its scope by the exclusion in Art 7(1)(a) for differential pension ages: judgment of 30 March 1993 in case C-328/1991 Secretary of State v Thomas and Others.. 
(4) The provisions of Art 4(1) of the directive are clear and precise enough to enable a person within its scope to rely on it directly before the national courts of the United Kingdom from 23 December 1984, so as to override any provision of the national legislation which infringes the principle of equal treatment. In consequence a woman can insist on entitlement to the same benefits as a man of the same age in the same circumstances would get, these being the only valid point of reference in the absence of domestic law provisions that comply with the principle: judgment of 24 March 1987 in case 286/85 McDermott [1987] ECR 1453, and 24 June 1987 in case 384/85 Borrie Clarke v CAO [1987] ECR 2877. 
(5) Until the directive has been properly transposed into national law, a member state cannot rely on an individual's failure to pursue proceedings to assert his or her community law rights, even after these have been declared by a ruling of the Court of Justice, as a reason for refusal to pay benefits in compliance with the principle of equal treatment. This is because the effect of continuing to retain provisions of national law which deny such benefits is to make it difficult or impossible for individuals to ascertain the full extent of their rights, and thus to infringe the principle of legal certainty which is also fundamental in community law: judgment of 25 July 1991 in case C-208/90 Emmott v Minister for Social Welfare, [1991] ECR 4269. 
(6) However, a provision of the national law placing a time limit on the retroactive effect of claims for benefit so as to limit the past period in respect of which arrears of benefit may be payable is not precluded by community law from applying to a claim based on the direct effect of directive 79/7. This is so even where the period concerned is one in which the member state remains in breach of its obligation to bring its own legislation into compliance with the principle of equal treatment, provided that the limit is one of general application so that the claim based on community law is not subject to any less favourable conditions than those applying to similar domestic claims: judgment of 6 December 1994 in case C-410/92 Johnson v CAO (No. 2), distinguishing cases C-338/91 Steenhorst Neerings [1993] ECR 5475, and C-208/90 Emmott (supra), in which the time bar had the result of depriving the applicant of any opportunity whatever to rely on her right to equal treatment under the directive. 
(7) While the principle of equal treatment is a fundamental one, and the directive requires the governments of the member states to apply it from 23 December 1984 to all the statutory schemes and benefits within its scope, there is a distinction between (A) the provisions set out in the directive itself whose direct effect can be relied on from that date by individuals falling within the class identified in Art 2 and described as the "working population", and (B) those further measures which the member states are left to bring into force themselves so as to implement the principle of equal treatment more effectively for the social protection of mothers remaining at home or interrupting their employment due to the upbringing of children. 
(8) The direct effect of Art 4(1) can be relied on only by individuals within the categories described in Art 2, who have their working careers interrupted by the specific risks of sickness, invalidity, old age, etc. detailed in the directive. These categories have been held by the Court of Justice not to include women who, having given up paid employment in order to see to the upbringing of children, had not in fact gone back into the labour market in the sense of being available for and actually seeking paid employment before the relevant invalidity arose: judgments of 27 June 1989 in case 48/88 Achterberg te Riele [1989] ECR 1963, and 11 July 1991 in Johnson (No. 1) supra, at paras 16-27. 

14. In view of these two decisions of the Court of Justice on the personal scope of directive 79/7, it is inescapable in my judgment that the claimant in the present case cannot assert a claim to invalid care allowance based on its direct effect for the period before 28 October 1994. This is not because s.70(5) was not discriminatory or because the principle of equal treatment for men and women was permitted by community law to be infringed in this way. It is simply because her family circumstances place her outside the category of individuals whom the Court of Justice has held entitled to rely on the direct effect of Art 4(1) by virtue of Art 2, notwithstanding that the United Kingdom has been in breach of its community obligations and in breach of the fundamental principle of equal treatment continuously from 22 December 1984 in failing to provide her with the same benefit as a man. When she left paid employment in 1949, she did so in order to start bringing up a family and not by reason of any of the risks specified in Art 3 of the directive; and at no subsequent point, after her family grew up and left home in the mid 1970's and before her mother became so disabled as to qualify under s. 70(2), was she in paid employment or actually seeking it. In my judgment therefore I am bound to hold that she cannot rely in the direct effect of directive 79/7. 

15. This makes it strictly unnecessary for me to determine the further question of whether the claimant would in any event have been prevented from qualifying for invalid care allowance before 28 October 1994 by not having established an entitlement to it before she was 60, or 65, which was the ground on which the tribunal confirmed the rejection of her claim. However since the point was fully argued before me and in case this appeal should go further, I will express the conclusions I have arrived at on it. 

16. On behalf of the adjudication officer, Mr Heath said that because no entitlement to invalid care allowance had been established on a claim made before the claimant was 65, she had been rightly refused it on a subsequent claim, as a man would have been for the same reason. The flaw in this argument is that if it is right the complete failure of the United Kingdom legislation to provide her with any means of making a claim or having it accepted before she was 65, coupled with the United Kingdom's continuing failure to apply the principle of equal treatment to invalid care allowance for many years after that, is being used to deprive her altogether of the benefit. 

17. As Mr Heath rightly and properly conceded before me, it was the discriminatory condition in section 70(5) that prevented her from getting the benefit throughout this period. Had the provisions now in the new reg. 10A been in force from 23 December 1984 as they should have been, instead of only from 28 October 1994, she would have qualified for the benefit at least for the period after she made her claim and for 12 months before that, in accordance with the normal time limits that apply to all claims. But as things in fact were, if the claimant had lodged a claim to invalid care allowance on 23 December 1984, when she was aged between 60 and 65 and a corresponding claim from a man would have been allowed, she would have been bound to have been rejected. The domestic legislation continued to impose the discriminatory condition in s. 70(5), and the government continued to instruct its officers and advise the public that this was correct and to maintain before the Court of Justice and other community institutions that it was justified in breaching the principle of equal treatment by Art 7 of the directive and the differential pension age in the United Kingdom. 

18. These arguments, rejected by the Commissioners and by the Court of Appeal in Thomas and numerous other cases, were conclusively shown to be wrong by the decisions of the Court of Justice cited above. It seems to me that in continuing to maintain that a failure to establish entitlement by reference to a claim made before attaining the age of 65 disqualifies a person from receiving invalid care allowance even though the legislation did not permit such a claim and the government firmly denied that it could exist, the department repeats and compounds the erroneous understanding of the United Kingdom's obligations as a member state of the European Union which led to its earlier failures to implement the principle of equal treatment. As the Court of Justice held in Emmott, a member state cannot deny entitlement altogether by pointing to failure to make a claim during a period when the national law itself, in breach of the two fundamental principles of equal treatment and legal certainty, refused to allow such a claim. 

19. Accordingly in my judgment the failure of a woman claimant to make a claim or to have established her entitlement before attaining the age of 65 is not a reason that the United Kingdom can rely on for refusing a properly made claim, by a person otherwise entitled to the benefit and asserting a right in community law based on the direct effect of Art 4(1) of directive 79/7, as regards any part of the period before the legislation complied with the principle of equal treatment on 28 October 1994. 

20. In the present case, the claimant did in fact make her claim on 2 March 1989. Consistently with the judgments cited above, the only permissible restriction on entitlement as a result of this claim (assuming it otherwise met the conditions for entitlement, and was within the direct effect of the directive) would be a condition of general application restricting entitlement to arrears of benefit on terms not less favourable than those applying to normal claims under domestic legislation. As held by the Court of Justice in Johnson (No. 2), the normal limit on entitlement under s. 1 of the Administration Act (to periods after the making of an actual claim plus not more than 12 months before it), is a condition of general application under national law. It merely limits payment of arrears of benefit, and is not precluded by community law even as regards periods before the national law was brought into compliance with the directive. 

21. In my view therefore any entitlement by reference to the claim made in this case on 2 March 1989 may be limited as regards arrears so as to cut off entitlement for periods before 2 March 1988, but the failure to make a claim and have it accepted before 18 September 1986 when the claimant was 65 cannot be permitted to deny entitlement from 2 March 1988 until 28 October 1994, for which period the national law provided no entitlement and the claimant must rely on the direct effect of community law. It follows that if she were a person able to rely on the direct effect of Art 4 of the directive, I would hold her entitled to invalid care allowance throughout the period from 2 March 1988 to 28 October 1994 by virtue of the combined effect of s. 70 of the 1992 Act and the community law principles I have sought to outline above. 

22. In view of the conclusions I have reached I set aside the decision of the tribunal given on 27 January 1995, which was in error in law in rejecting her appeal on the second point rather than the first, and substitute my own decision in accordance with section 23(7)(a) of the Administration Act as set out in para 2 above. 

23. Before parting with the case I should like to make it quite clear that although I have had to hold that the claimant has no direct claim under the directive, the only reason for this is that she does not fall within the categories in Art 2 as interpreted in the decided cases, and apart from this one factor she would for the reasons given above have qualified for the benefit from 2 March 1988 onwards. Since the provision of this benefit for a person in her circumstances is in my view plainly within the spirit and intent of both the equal treatment directive and s. 70 as now amended, and she would in fact have been receiving the benefit ever since 2 March 1988 if the alterations to implement the directive had been introduced by 22 December 1984 as the directive itself required instead of 28 October 1994, I recommend that her case should again be considered by the Secretary of State with a view to awarding her an extra statutory or ex gratia payment for the period 2 March 1988 to 28 October 1994. This would no doubt save both her and the department a good deal of further time and lawyers' fees in considering whether the United Kingdom's failure to introduce the amendments to comply with the directive earlier may have given her any separate right of action for damages on the principle of case C-6/90 Francovitch v Republic of Italy [1991] ECR 5357. 

24. The appeal is allowed and my decision substituted accordingly.

(Signed) 
P L Howell 
Commissioner
4 March, 1996