trESS Newsletter

Pending Case C-503/09: Lucy Stewart v. Secretary of State for Work and Pensions

On 4 December 2009, the Upper Tribunal (Administrative Appeals Chamber, UK) submitted a reference for a preliminary ruling to the ECJ, asking whether a benefit with the characteristics of short-term incapacity benefit in youth should be treated as a sickness benefit or an invalidity benefit for the purposes of Regulation 1408/71.

If the answer to this question is that such a benefit is to be treated as a sickness benefit, the following questions should be additionally answered:

(a) Is a person, such as the claimant's mother, who has definitively ceased all employed or self-employed activity by virtue of retirement, nevertheless an 'employed person' for the purposes of Article 19 by reason of their former employed or self-employed activity, or do Articles 27 to 34 (pensioners) contain the applicable rules?
(b) Is a person, such as the claimant's father, who has not undertaken an employed or self-employed activity since 2001, nevertheless an 'employed person' for the purposes of Article 19 by reason of their former employed or self-employed activity?
(c) Is a claimant to be treated as a 'pensioner' for the purposes of Article 28 by virtue of the award of a benefit acquired pursuant to Article 95b of Regulation 1408/71, notwithstanding the facts that:
     > the claimant in question has never been an employed person
        under Article 1(a) of Regulation 1408/71;
     > the claimant has not reached State retirement age; and
     > the claimant only comes within the personal scope of
        Regulation 1408/71 as a family member?
(d) Where a pensioner falls within the scope of Article 28 of Regulation 1408/71, can a family member of that pensioner who has at all times resided with and in the same State as the pensioner claim, pursuant to Article 28(1), as read with Article 29, a cash sickness benefit from the competent institution determined by Article 28(2) where such benefit is (if due) payable to the family member (and not payable to the pensioner)?
(e) If applicable (by reason of the answers to (a) to (d) above), is the application of a condition of national social security law limiting the initial acquisition of entitlement to a sickness benefit to those having completed a requisite period of past presence within the competent Member State within a defined prior period compatible with the provisions of Articles 19 and/or 28 of Regulation 1408/71?

If the answer to the first question is that such a benefit is to be treated as an invalidity benefit, the Upper Tribunal wants to ascertain whether the wording in Article 10 of Regulation 1408/71 referring to benefits “acquired under the legislation of one or more Member States” mean that Member States remain entitled under Regulation 1408/71 to set conditions of initial acquisition to such invalidity benefits that are based upon residence in the Member State or upon demonstration of requisite periods of past presence in the Member State, such that a claimant cannot first claim entitlement to such benefit from another Member State.

Pending Case C-516/09: Tanja Borger v. Tiroler Gebietskrankenkasse

The case was submitted by the Oberster Gerichtshof (Austria) on 11 December 2009 and concerns the interpretation of Article 1(a) of Regulation 1408/71.

The ECJ is asked whether this Article is to be interpreted as meaning that it also covers - for a period of six months - a person who, following the end of the two-year statutory suspension of her employment relationship following the birth of a child, agrees a further six-month period of unpaid leave with her employer in order to draw childcare allowance or a corresponding compensatory benefit for the maximum statutory period, and then terminates the employment relationship.

If the ECJ would reply in the negative, the Oberster Gerichtshof wants to know whether Article 1(a) is to be interpreted as meaning that it also covers - for a period of six months - a person who, following the end of the two-year statutory suspension of her employment relationship, agrees a further six-month period of unpaid leave with her employer, if she draws childcare allowance or a corresponding compensatory benefit during that period.

Pending Case C-537/09: Ralph James Bartlett, Natalio Gonzalez Ramos, Jason Michael Taylor v. Secretary of State for Work and Pensions

On 21 December 2009 the Upper Tribunal approached the ECJ with a view to obtain a preliminary ruling regarding several questions of interpretation of European law. In essence, the national court seeks to clarify the exact implications of the ECJ’s ruling in Case C-299/05 (see discussion of this case in the March 2008 issue of the trESS e-newsletter). In particular, the Upper Tribunal referred to the ECJ the following questions:

1. In relation to periods to which the form of Regulation 1408/71 in force immediately before 5 May 2005 (date of entry into force of Regulation 647/2005) applies, is the mobility component of disability living allowance under sections 71 to 76 of the Social Security Contributions and Benefits Act 1992 capable of being categorised separately from disability living allowance as a whole as either a social security benefit within Article 4(1) of the Regulation or a special non-contributory benefit within Article 4(2a) or otherwise?
     a. If the answer to (a) is yes, what is the proper category?
     b. If the answer to (a) is no, what is the proper category for disability living allowance?
     c. If the answer to (b) or (c) is categorisation as a social security benefit, is the benefit in question an
     sickness benefit within Article 4(1)(a) or an invalidity benefit within Article 4(1)(b)?
     d. are the answers to any of the above questions affected by the temporal limitation in point 2 of the
     Court's ruling in Commission of the European Communities v European Parliament and Council of the
     European Union (Case C-299/05)?

2. In relation to periods to which the form of Council Regulation 1408/71 in force from 5 May 2005 by virtue of amending Regulation 647/2005 applies, is the mobility component of disability living allowance under sections 71 to 76 of the Social Security Contributions and Benefits Act 1992 capable of being categorised separately from disability living allowance as a whole as either a social security benefit within Article 4(1) of the Regulation or a special non-contributory benefit within Article 4(2a) or otherwise?
     a. If the answer to (a) is yes, what is the proper category?
     b. If the answer to (a) is no, what is the proper category for disability living allowance?
     c. If the answer to (b) or (c) is categorisation as a social security benefit, is the
         benefit in question an sickness benefit within Article 4(1)(a) or an invalidity
         benefit within Article 4(1)(b)?

If the answers to the previous questions produce the outcome that the mobility component is properly to be categorised as a special non-contributory benefit, the Upper Tribunal would like to know whether there is any other rule or principle of EC law relevant to the question of whether the United Kingdom is entitled to rely on any of the residence and presence conditions in regulation 2(1)(a) of the Social Security (Disability Living Allowance) Regulations 1991 in circumstances like those of the present cases.