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Neutral Citation Number:
Reported Number:	R(P)2/08
File Number:	CP 633 2006
Appellant:	Secretary of State for Work and Pensions v Burley [2008] EWCA Civ 376
Respondent:
Judge/Commissioner:	Mr R.J.C. Angus
Date Of Decision:	23/04/2008
Date Added:	08/02/2008
Main Category:	Contributions and credits
Main Subcategory:	contribution conditions
Secondary Category:
Secondary Subcategory:
Notes:	Residence and presence – exporting of retirement pension to France – Article 10 of Regulation (EEC) 1408/71 – higher rate retirement pension derived from legislation bringing into force an international social security agreement concluded between the UK and a third state The claimants were a married couple, who had lived in Australia. When they reached pensionable age, they were living in the United Kingdom (UK). Both were credited with deemed contributions under a reciprocal agreement between Australia and the UK and both were awarded a higher rate UK retirement pension. When the reciprocal agreement with Australia was terminated in 2001, those pensions continued in payment by virtue of the Social Security (Australia) Order 2000 (the 2000 Order). In 2004 the claimants moved to Paris and ceased to reside permanently in the UK. Four months later the Secretary of State reduced their retirement pensions to 35 per cent of the standard rate. The claimants appealed, but the tribunal dismissed their appeal. They appealed to the Commissioner, who allowed their appeal. Article 10 of Regulation (EEC) 1408/71 provides that old age benefits acquired under the legislation of one or more Member States shall not be subject to any reduction by reason of the fact that the recipient resides in the territory of a Member State other than that in which the institution responsible for payment is situated. However, paragraph 7 of Section Y of Annex VI to the 1971 Regulation provides that the Regulation does not apply to those provisions of UK legislation which are intended to bring into force any social security agreement concluded between the UK and a third State. The Commissioner held that the 2000 Order was not “intended to bring into force” a social security agreement, since the relevant agreement was terminated when the Order came into force. The Secretary of State appealed to the Court of Appeal. The Secretary of State argued that the provisions of the 1971 Regulation did not apply to this case; that UK domestic law giving effect to an international social security agreement with Australia applied; and that under UK domestic law the right to the higher rate retirement pension ceased when the claimants ceased to live permanently in the UK. Held, allowing the appeal, that: 1. although the Australian Agreement was terminated as from 2001, the 2000 Order did bring certain provisions into effect for a limited purpose, namely that of preserving and continuing, in accordance with its terms, the retirement pension rights of existing recipients, and to that limited extent the 2000 Order satisfied the description of UK legislation in paragraph 7 (paragraphs 31 to 34); 2. the 1971 Regulation only applied to conventions concluded between at least two Member States and one or more non-Member States and it was intended to exclude from its field of application conventions concluded between a single Member State and a third non-Member state. Such a convention was not therefore legislation within the meaning of the Articles in the Regulation on which the claimants had to rely (Case C-23/92 Grana-Novoa v Landesversicherungsanstalt Hessen [1993] ECR I-4505 followed) (paragraphs 36 to 41); 3. (per Arden LJ) paragraph 7 should be interpreted purposively so as to cover legislation which continues in force, as well as brings into force, a social security agreement concluded between the UK and a third state, since both types of legislation give effect to social security agreements of that description and there is no difference for this purpose between legislation which brings into force, and legislation which continues in force, such an agreement (paragraph 44).
Decision(s) to Download:	CP 0633 2006-00.doc R(P) 2-08 ws.doc