[2024] UKUT 405 (AAC)

Art 1 of Reg 883/2004, “definitions”, includes:

There are definitions of “competent authority”, “competent institution”, and “competent Member State”, in Arts 1(m), (q) and (s), to which I will return briefly below.

I will not set out the definition of “benefits in kind” in Art 1(va) in full, but it means, in relation to sickness, benefits paid to supply etc the “cost of medical care”. In the UK, that is, essentially, NHS provision.

Art 2, “persons covered”, provides that the regulation applies to persons “who are or have been subject to the legislation or one or more Member States, as well as to members of their families”.

Title II of Reg 883/2004 is headed “Determination of the Legislation Applicable”. The key provision is Art 11, which provides, materially, as follows:

This is the analogue to Art 13 of Reg 1408/71, to which I have already referred. The “special rules” in Arts 12-16 are not material to this case.

Title III makes special provision for particular kinds of benefits for particular categories of person.

Chapter 1 of Title III is concerned with “Sickness, maternity and equivalent paternity benefits”. Section 2, Chapter 1 of Title II deals with this topic in relation “pensioners and members of their families” (whereas Chapter 1 deals with insured persons other than pensioners).

In this case the provision ultimately relied upon by the Respondent is Art 29, but that provision can only be understood alongside two other articles in this Section of the Regulation, so I will deal with them in numerical order.

First, Art 24 deals with the situation where a pensioner is “not entitled to benefits in kind under the legislation of the Member State of residence” (see the heading, and also the wording of Art 24(1)). So that covers the situation were a pensioner is not entitled to benefits in kind by reason of their residence in the host state. Since benefits in kind in the UK equates to NHS provision, and the right to NHS provision does not depend on payment of national insurance contributions etc, that is not applicable to the UK. However, Art 24(2) provides for a mechanism for determining which state should pay for the costs of benefits in kind in this situation, where a pensioner is insured in more than other Member State. I refer to this because it is also referred back to in Art 25, but the detail is not material.

Art 25, by contrast, deals with the situation where a pensioner who receives a pensioner from another Member State is nevertheless entitled to benefits in kind in the state of residence. It provides as follows:

Since NHS provision is not dependent on conditions of insurance etc, this Article is applicable in the UK. Its effect is however not to remove entitlement to NHS from the pensioner concerned (nor from members of his or her family). It does not purport to affect that entitlement at all. Rather, it merely provides that, if the pensioner etc “would [also] be entitled to” those benefits in the state from which she draws her pension, then the state of residence may recover the costs of the benefits in kind provided to the pensioner etc from the state which pays the pension. It grants a right to the state of residence vis a vis the state that pays the pension, without altering the rights of the person to whom benefits in kind are to be provided.

As I say, Article 29 can only be understood against that background. It provides as follows:

So this article operates by requiring consideration first of which Member State is “responsible” for the costs of paying benefits in kind in the Member State of residence, which must be determined under Arts 24 or 25, as applicable. It then provides that cash benefits “shall” be paid to the pensioner by that State, which will generally be that which pays the pension. Art 29(2) provides that the same shall apply to members of the family of the pensioner. The question at the heart of this case is whether, in addition to conferring a right to benefits from the state that pays the pension, it also takes away any right to benefits from the state of residence.