Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 405 (AAC)

Fecha: 05-Dic-2024

Reg 1408/71

12.

Reg 1408/71 was amended very significantly over the period of 30 or so years that it was applicable (see Recital (3) to Reg 883/2004). Fortunately, the provisions that are material to this case were not altered in the period over which the regulation may have had any application to SE, from 1999 to 2010, and those provisions were also those in force immediately before the move to Reg 883/2004.

13.

Since Reg 1408/71 provided the initial template for Reg 883/2004, which I deal with, I do not propose to set its provisions out in the same detail. However, I note the following:

(i)

Article 2 says that the regulation applies “to employed or self-employed persons”, who are therefore the persons to whom the regulation applied rationae personae.

(ii)

The definitions of employed and self-employed persons in Article 1 were however rather wider than the terms themselves suggest, being defined, not by current or even past employment, but by reference to whether the person is “insured” for one of the risks covered by a social security scheme, so that it has been held that it is sufficient that a person is insured against the risk of old age by virtue of future entitlement to a retirement pension to bring themselves within the protection of the regulation even in relation to unrelated benefits (see Sala v Freistaat Bayern (Case C-85/96) [1998] ECR I-2691, ECJ, HMRC v Ruas [2010] PTSR 1757, Tolley v SSWP (Case C-430/15) [2017] 1 WLR 1261. The difference between these provisions, and Reg 883/2004, which applies “rationae personae” to “insured persons”, is therefore less than might at first appear.

(iii)

Title II of Reg 1408/71, like Title II of Reg 883/2004, dealt with the “determination of the legislation applicable” to an individual. Article 13(1) provides for the principle that “persons to whom this regulation applies shall be subject to the legislation of a single Member State only”. Article 13(2) provides for a “cascade”, whereby one must consider whether a series of conditions are met in turn. The default provision, applicable where none of the other conditions applies, in Art 13(2)(f), is that an individual will be subject to the legislation of the state of residence.

(iv)

Title III of Reg 1408/71 provides for detailed rules concerning particular benefits, which had the potential to supplement or override the basic rule about legislation applicable in particular cases.

14.

One example of a special rule in Title III, of importance to this case, was Art 28, which concerned the position of pensioners and their families residing in a state other than that which was responsible for payment of their pension. In the form that it took between 2000 and 2010, it provided, materially, as follows:

Pensions payable under the legislation of one or more States, in cases where there is no right to benefits in the country of residence

A pensioner who is entitled to a pension under the legislation of one Member State or to pensions under the legislation of two or more Member States and who is not entitled to benefits under the legislation of the Member State in whose territory he resides shall nevertheless receive such benefits for himself and for members of his family, in so far as he would, taking account where appropriate of the provisions of Article 18 and Annex VI, be entitled thereto under the legislation of the Member State or of at least one of the Member States competent in respect of pensions if he were resident in the territory of such State. … [Emphasis added]

[The rest of the article makes provision for the conditions under which such benefits shall be paid, and how the costs shall be distributed between the paying institutions, but does not affect the basic principle]