Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 405 (AAC)

Fecha: 05-Dic-2024

The history of the legislative provisions

98.

The predecessor to Art 29 of Reg 833/2004 was Art 28 of Reg 1408/71. As I have already held, that did not create a rule of priority or otherwise displace the entitlement which a pensioner or their family member might have to cash benefits under the legislation applicable to them in the state of residence. Just as in Harrington, there is nothing to demonstrate that the EU legislature was intending to effect so significant a shift as to take away the entitlement to cash benefits which family members of pensioners might previously have enjoyed.

99.

Standing back from this, it is clear following Harrington that:

(i)

any entitlement of a family member of an employed or self-employed person other than a pensioner to cash sickness benefits in the state of residence was not displaced by Art 19 of Reg 1408/71, when that was in force;

(ii)

any entitlement of a family member of a pensioner to such benefits in the state of residence was not displaced by Art 28 of Reg 1408/71;

(iii)

any entitlement of a family member of an insured person other than a pensioner to such benefits in the state of residence is not displaced by Art 21 of Reg 833/2004;

(iv)

any entitlement of family members of both employed persons etc and pensioners to benefits in kind in the state of residence was not displaced by, respectively, Arts 19(2) and Arts 28(1)(a) of Reg 1408/71;

(v)

any entitlement to benefits in kind of family members of insured persons and pensioners is not displaced by, respectively, Arts 17 and 24/25 of Reg 883/2004.

100.

In these circumstances it seems to me that it would be anomalous if Art 29, alone amongst these former and current provisions, were to operate as a rule of priority in the way contended for by the Respondent. Though not necessary to my decision, therefore, that points further against the Respondent’s position.