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"). ...
"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.
baillii org
"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.
baillii org
