R(S) 4/74

Para.070656 of Volume 2, Chapter 7 Common subjects cites R(S) 4/74 as being why someone going abroad for convalescence cannot be treated as being treated medically, even if that absence is medically advised.

I can’t find the relevant Commissioner’s Decision, can anyone help me out please? Many thanks.

R(S) 4/74 Where the decision of a tribunal may be set aside by an order of certiorari made by the High Court on the ground of an error in point of law, the tribunal is not one against whose decision there is no judicial remedy under English law within the meaning of Art. 177(3) of the Treaty of Rome even though an application for an order of certiorari cannot be made without leave of the High Court. The interpretation of a Community reg. by an administrative tribunal is subject to appeal to the High Court by way of an order of certiorari on the ground of an error in point of law under s. 3(1) of the European Communities Act 1972. Where, in Art. 22(1)(c)(ii) of EEC Reg. No. 1408/71, a worker who is entitled to benefits and “who is authorised by the competent institution to go to the territory of another Member State to receive there the treatment appropriate to his condition” shall be entitled to cash benefits, such authorisation being mandatory “where the treatment in question cannot be provided” within the Member State of residence (Art. 22(2)). The word “treatment” does not comprehend the mere benefit of rest and change of air involved in a holiday abroad and must be treatment provided abroad and not provided in the UK for administration abroad by the claimant himself. The taking by a claimant of drugs provided for him before he goes to another Member State is not such treatment. R v. N.I. Commissioner, ex parte McMenemey [1966] reported as an App. to R(S) 2/69 (see 2.6.7 ii) and summarised in 18.1.1 vi above. R(S) 4/74 as also reported in [1975] 1 CMLR 184.

From Nelligan on our Social Security Law Database.

Thank you Gareth, appreciated

And from R(S)6/81

“...

13. Dealing first with Article 22, since that affects this appeal, there is no doubt that the claimant is a worker who satisfied United Kingdom legislation for entitlement to benefits. Article 18 relates to aggregation of insurance periods or periods of employment or residence and has no relevance to this appeal. Paragraph 1(a) relates to immediate benefits during a stay in another Member State. A person’s condition does not necessitate cash benefits but benefits in kind, such as assistance from the local health service or a doctor (Decision R(S) 4/80). Paragraph 1(b) applies to return to, or transfer of, residence (as defined in Article 1(h)) and is of no assistance to persons staying temporarily in another Member State. Paragraph 1(c) depends for its application on the Secretary of State authorising a person to go to another Member State to receive there the treatment appropriate to his condition. Without that authorisation, entitlement to the benefits stated in the two sub-paragraphs does not arise. “Treatment appropriate to his condition” in that context resembles absence for the specific purpose of being treated in regulation 2(1)(b) of the Persons Abroad Regulations (supra). One cannot assume that there is an exact coincidence between the meaning of “treatment” in Article 22(1)(c) and “being treated” in regulation 2(1)(b) (Decision R(S) 4/74, paragraph 13). For practical purposes, however, in the majority, if not in all cases, if a person does not satisfy the requirement of regulation 2(1)(b) it seems unlikely that he will receive the necessary authorisation under Article 22(1)(c).

14. My conclusion is, therefore, that in almost all cases of temporary absence from Great Britain for convalescence or a holiday in another Member State, Article 22(1)(b) and (c) is of no greater assistance than regulation 2 of the Persons Abroad Regulations. I should add that, in the present case, a statement on behalf of the Secretary of State, given after the claimant had returned home, did not give the claimant the authorisation required under Article 22(1)(b) and (c) and his claim fails on that account. It is, perhaps, worth noting that, at first sight, the provisions of Article 22(1)(b) and (c) apply in like manner to a woman receiving maternity allowance….”