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EC Regulation 883/2004 and 1408/71
Anyone know if there have been any cases yet on the amendments made to AA, DLA and CA by the 2011 Regulations regarding non-entitlement to these benefits where the UK is not the competent institution for payment? The amendments state:
“A person to whom either Regulation (EC) No 1408/71 or Regulation /(EC) No 883/2004 applies shall not be entitled to an attendance allowance for a period unless during that period the United Kingdom is competent for payment of sickness benefits in cash to the person for the purposes of Chapter 1 of Title III of the Regulation in question.”
I’m struggling with this (unsurprisingly as it’s EU social security coordination rules!).
We have a client, Polish national receiving a pension from Poland. He’s claimed AA (been here far in excess of 26 weeks in the 52 week preceding his claim) but been refused on the basis of the above. Looking at 883/2004 I can’t see any way of challenging the refusal.
Sorry, can’t help you, I know even less about this than you - until I read your post I did not even know about the amendment regs, as I could not find them in the Sweet & Maxwell legislation books.
I am not aware of any UK cases on this subject, I had a look for European cases some time ago, there were quite a lot of references to the ECJ but I think they were all from other countries. There was one Austrian cases that seemed interesting, but it was about someone getting pensions from 2 countries. Sax; Case C-538/11, I don’t think there is an opinion out.
In addition, I wonder what happens about sickness benefits in kind (NHS treatment), if the UK is not the competent state, would the UK claim costs back from the competent state?
There was another discussion about the subject a couple of months ago, maybe that gives you some ideas http://www.rightsnet.org.uk/forums/viewthread/3344/
My understanding of the EC regulation 883/2004 Article 21 (and see commentary in Coppola v Insurance Officer 1983 ECR 43) is that the UK would be competent to pay sickness benefits if your client was last insurably employed here. Has your client worked since coming to the UK or is there any chance of them getting a few weeks work and then reapplying for AA! You might also want to try to make further enquiries into the nature of the Polish pension that the client is receiving. Whilst it probably is based on the payment of social insurance in Poland, if it were not, then may be no basis for DWP deciding that Poland is the competent state for payment of sickness benefits. Good luck!
Gary McIntyre
Benefits Adviser
Fermanagh CAB
I don’t think article 21 applies. It is in section 1 of 883/2004 which is headed “Insured persons and members of their families, except pensioners and members of their families”. It seems to me that Poland will be the competent state for sickness benefits by virtue of article 29.
To find out about a Polish pension see here..