Competent State

Client is German national, who came to UK since Nov 2011, lives with her daughter who works.  Client gets small German retirement pension.  She applied for attendance allowance, but claim was refused on the basis that it is not possible to pay attendance allowance if an EEA state other than the UK is responsible to pay sickness benefits.  Are they right?

As Germany is the competent state for the pension, does this mean that the UK cannot be the competent state for attendance allowance, even though the former is an “old age” benefit and not a sickness benefit. 

If there can only be one competent state across the board, should the UK be the competent state instead, as she is resident here, and would this mean she would have to give up the pension.

I am struggling to get my head round the co-ordination rules at the moment…. Any thoughts appreciated.

It is my (rather poor) understanding that the competent state for sickness benefits is the one in which you last paid national insurance. How that affects people over retirement age I haven’t yet got to grips with.

As we’re talking about a post 1 May 2010 case, the client will come under reg. 883/04 and therefore the competent state is determined by art. 11. Art 11 says:

“...
2. For the purposes of this Title, persons receiving cash benefits because or as a consequence of
their activity as an employed or self-employed person shall be considered to be pursuing the said
activity. This shall not apply to invalidity, old-age or survivors’ pensions or to pensions in respect
of accidents at work or occupational diseases or to sickness benefits in cash covering treatment for
an unlimited period.
3. Subject to Articles 12 to 16:
(a) a person pursuing an activity as an employed or self-employed person in a Member State shall
be subject to the legislation of that Member State;
...
(e) any other person to whom subparagraphs (a) to (d) do not apply shall be subject to the
legislation of the Member State of residence, without prejudice to other provisions of this
Regulation guaranteeing him benefits under the legislation of one or more other Member
States.”

So as I presume your client is receiving an old-age pension from Germany, they are not treated as if they were pursuing activity as an employed or self-employed person and therefore the competent state is the one in which they are resident. If this was not the case, then this part of art. 16 that provides exceptions to art. 11-15 would not be necessary:

“2. A person who receives a pension or pensions under the legislation of one or more Member
States and who resides in another Member State may at his request be exempted from application of
the legislation of the latter State provided that he is not subject to that legislation on account of
pursuing an activity as an employed or self-employed person.”

Therefore the UK is the competent state and so your client should not be refused AA on the basis that it is not.

Recent experience suggests that DWP haven’t got a good grasp of the co-ordinations rules or the differences between 883/04 and 1408/71 so they are unlikely to revise the decision so an appeal will be necessary.

I find the coordination regulation hard work. How does this fit in with art 29 & 25?

Art 29 “Cash benefits for pensioners” seems to say that the member state responsible for sickness benefits in kind is the one who is responsible for paying cash benefits. Art 25 says that the bill for sickness benefits in kind goes to the member state who is paying the pension.

Thanks for all your contributions, much appreciated.  I agree, Damian, it is difficult to reconcile these Articles, at least for me anyway.  We have advised an appeal to be made on the grounds set out by hkrishna to get the ball rolling.

The following is from a posting I made in another discussion on here.  Its easier just to quote it rather than rewrite it

“……..where the claimant is subject to the legislation of more than one member state and the relevant benefit is higher in the non-competent state then the benefit must be adjusted accordingly by way of a top up………… the two states have a duty to co-ordinate with each other to determine the competent state so your client needs to make this clear to each one.  Once the competent state has been determined then see what happens as she needs to stay alive to the possibility of adjustment so she gets the highest rate of benefit payable.”

I don’t really understand how the co-ordination rules work when a claimant satisfies the residence and presence conditions for AA/DLA under domestic UK legislation, but receives a pension is received from another EU country?  Assuming the DWP are right in arguing that the other EU state paying the pension is the competent state under the EU co-ordination Regs, can they then disallow AA/DLA even if all the conditions under the domestic rules are met?  All the co-ordination rules cases I am aware of are about unsuccessful claimants arguing that the UK past presence rules are in conflict with European law. But can the DWP now argue that the EU Co-ordination Regulations are the starting point, and if the UK is not the competent state, there can be no entitlement to AA/DLA, regardless of whether domestic law conditions are satisfied, which seems to be what DMG 19/12 suggests (para 16)?

hkrishna - 16 July 2012 12:12 PM

As we’re talking about a post 1 May 2010 case, the client will come under reg. 883/04 and therefore the competent state is determined by art. 11. Art 11 says:

“...
2. For the purposes of this Title, persons receiving cash benefits because or as a consequence of
their activity as an employed or self-employed person shall be considered to be pursuing the said
activity. This shall not apply to invalidity, old-age or survivors’ pensions or to pensions in respect
of accidents at work or occupational diseases or to sickness benefits in cash covering treatment for
an unlimited period.
3. Subject to Articles 12 to 16:
(a) a person pursuing an activity as an employed or self-employed person in a Member State shall
be subject to the legislation of that Member State;
...
(e) any other person to whom subparagraphs (a) to (d) do not apply shall be subject to the
legislation of the Member State of residence, without prejudice to other provisions of this
Regulation guaranteeing him benefits under the legislation of one or more other Member
States.”

So as I presume your client is receiving an old-age pension from Germany, they are not treated as if they were pursuing activity as an employed or self-employed person and therefore the competent state is the one in which they are resident. If this was not the case, then this part of art. 16 that provides exceptions to art. 11-15 would not be necessary:

“2. A person who receives a pension or pensions under the legislation of one or more Member
States and who resides in another Member State may at his request be exempted from application of
the legislation of the latter State provided that he is not subject to that legislation on account of
pursuing an activity as an employed or self-employed person.”

Therefore the UK is the competent state and so your client should not be refused AA on the basis that it is not.

Recent experience suggests that DWP haven’t got a good grasp of the co-ordinations rules or the differences between 883/04 and 1408/71 so they are unlikely to revise the decision so an appeal will be necessary.

Henri, does this viewpoint still hold water now? Reason I ask is this Judge Jabos decision from 2014 http://administrativeappeals.decisions.tribunals.gov.uk//Aspx/view.aspx?id=4837

We’ve got Bulgarian pensioner looking to claim Attendance Allowance but turned down as seems to be receiving Bulgarian pension, so looking for advice on how to challenge.

Thanks.

Hello,

I have a query on this topic.

I have a client from Latvia who is receiving £312 euros per month Latvian state pension. She applied for AA and was accepted, however payments were then stopped. I haven’t seen it but client then apparently got a letter which said the reason for cessation of the AA was because she was receiving the Latvian SP. The client is getting pension credit from this country but no other income.

Client’s daughter wants to claim CA as she is struggling with working and being a full time carer but obviously lack of AA is preventing that so they are struggling.

Has there been any changes in the rules in the years since this topic was posted? Is it worth challenging this decision?

Thanks

Don’t know the answer but top marks for a demonstration of how the search should be used.

As far as I know, this is still a pretty good overview of the current situation.

European nationals and sickness benefits

In which case, it doesn’t look good in terms of your client being able to claim AA unfortunately.

Mike - I admit it was google search rather than RN search that brought me here. But still a search nonetheless I suppose!

Paul - Thanks for the link. Yes that does seem to suggest she’s out of luck unfortunately due to the Latvian pension.

Cheers

Paul_Treloar_AgeUK - 19 September 2018 11:56 AM

As far as I know, this is still a pretty good overview of the current situation.

European nationals and sickness benefits

In which case, it doesn’t look good in terms of your client being able to claim AA unfortunately.

That blog says that the member states should sort it out between the respective administrations and not leave the claimant caught in the middle.

Being caught in the middle and receiving long incomprehensible letters demanding money is what is happening to our client.

How do we get the two member states to fight each other ie on more equal terms?

That’s a good question Sally, I don’t actually know how this works in practice. Would be interested on an answer to this too