1. European Regulations and the
Northern Ireland Experience
The work of the Belfast Social
Security Commissioners
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2. Who are we?
 Officeof the Social Security
Commissioners Bedford House Belfast
 Chief Commissioner Mullan
 AN Other Commissioner (awaiting
appointment)
 6 Deputy Commissioners (from GB)
 1 Legal Officer: Niall McSperrin
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3. Belfast Commissioners
 Administered by the NI Courts and
Tribunals Service an agency of the Dept
of Justice at Stormont
 Commissioners are integrated into the
Judiciary at a level akin to the County
Court with access to full Judicial internet
and library resources
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4. What do the Commissioners do?
 Commissioners hear appeals on points of Social Security law.
The Appeals Service handle the initial factual appeals.
 Lady Justice Hale (as she then was) in Cooke v SoS for Social
Security [2001] EWCA Civ 734 described it thus:
 “…this is a highly specialized area of law which many lawyers -
indeed, I would suspect most lawyers - rarely encounter in
practice…. there is an independent two-tier appellate structure…
After the initial decision there is a fresh hearing before a
specialist tribunal which is chaired by a lawyer and has an
appropriate balance of experience and expertise amongst its
members. After that there is an appeal on a point of law to a
highly expert and specialized legally qualified body, the Social
Security Commissioners
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5. Belfast Commissioners
 They seek to give guidance on law and
practice.
 300 cases 2010-11 . Perhaps 3-4 a year with
EU element [only one so far on 2004/38]
 Also deal with Child Support Appeals, War
Pensions Appeals, and certain UK wide
appeals as Upper Tribunal Judges, including
appeals under Freedom of Information Act.
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6. Resources
 Further details: try NICTS web site
www.courtsni.gov.uk/en-GB/Tribunals/OSSC/Pages/OSSC.aspx
 Dept for Social Development website for
case law and legislation
 www.dsdni.gov.uk/index/law_and_legislation.htm
 Bailii : www.bailii.org/nie/cases/NISSCSC/
 The Upper Tribunal (Administrative
Appeals Chamber)
 www.justice.gov.uk/guidance/courts-and-tribunals/tribunals/aa/index.htm
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7. The Range of Benefits
 Social Security is devolved issue but retains
the “Parity Principle” with GB
 Unemployment benefits; Jobseekers
Allowance, income support
 Sickness benefits; Incapacity benefit being
phased out Employment Support Allowance
taking over
 Disability Living Allowance; being phased out
for Personal Independence Payments
 Social Fund (Funeral Grant)
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8. Range of benefits
 State pension credit
 Housing benefit
 Child benefit
 Child Tax credit
 Pensions
 New Plan for Universal Credit 2013.
 The Holy Grail of Social Security: Will simplify
the benefit system and improve work
incentives.
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9. The standard EU issues arise.
 What is “Worker”
 Can a benefit be exported
 Frontier Workers rights
 Issues of A8, A2 nationals
 Discrimination protection and
qualification for benefits due to the “right
to reside test”
 Overlapping benefits
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10. Some Cases
 Past NI cases include; McMenamin ECJ
C119-91 (Overlapping benefits? A
frontier worker claiming NI Child Benefit)
and
 Zalewska[2008] UKHL 67 (was the A8
registration scheme proportionate)
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11. Two recent examples
 AB v DSD (TC) [2010]NIComm 66.
AB works in NI. She, her husband [a
soldier in the Defence Force] and two
children live in R.o.I. She sought CTC
but fell foul of S3(3) Tax Credits Act
“must be in UK”
However CTC is a “Family benefit” for
purposes of 1408/71 and argued that
entitlement followed per Art 73
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12. AB case The bad news…
 Art10 regulation 574/72 and overlapping
benefits per Dodl C-543/03 and GB case
R(F) 1/95
“Article 10(1)(a) therefore contains the general rule that
entitlement to family benefits acquired simply by virtue
of residence gives way to entitlement acquired by
virtue of employment. If neither the claimant nor his
wife were working in Ireland, Irish children’s
allowances would be suspended and the UK child
benefit would be paid in full .
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13. AB case conclusion
 Art 10 (1) (b)
 As Mr B was working in R.o.I Art 10 (1) (b) was
in play
 “under Article 10(1)(b)(i), UK child benefit is suspended up to the sum of
Irish children’s allowances….”
 At the time Irish allowances were more
generous and no extra UK payments made.
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14. Recent cases
 JM v DSD (CB) [2010]NIComm 13.
 JM and husband worked in UK then
posted to Greece for 4+ years where
twins were born on 1.2.06. They
returned to UK 10.5.06 but were refused
backdated payment of Child Benefit
 The Good News: Art 73 1408/71applies
if can be said to be subject to legislation
of UK, can get UK benefits
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15. Art 73 1408/71
 An employed or self-employed person
subject to the legislation of a Member
State shall be entitled, in respect of the
members of his family who are residing
in another Member State, to the family
benefits provided for by the legislation of
the former State, as if they were residing
in that State, subject to the provisions of
Annex VI.
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16. The Bad News
 They had been subject to the legislation
of Greece not UK, paying Tax and
equivalent of national insurance locally
therefore could not be helped by Art 73
1408/71
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17. In the pipeline
 JF is American married to an EU national neither of
whom have exercised EU treaty rights on free
movement. Does she remain “subject to immigration
control” and ineligible for DLA or can she claim benefit
as a family member of a worker?
 Zambrano decision of CJEU, C-34/09 involved
dependent EU children who had never moved and a
non EU parent.
 Can a wider principle be extracted that citizens can
rely on rights as EU citizens where they have never
moved to another Member state
 What if JF had flown first to Dublin rather than Belfast?
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18. Questions
 Niall McSperrin
 Legal Officer
 Tribunals Hearing Centre
 3rd Floor Bedford House
 Bedford Street
 Belfast BT2 7FD
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