Hi all,

Any thoughts on whether HB and or CTB is within the material scope of EC Reg 1408/71? Looking at Article 4 I can't tell-

-it has the characteristics of a social security benefit (payable to all who meet strict legal conditions without a discretionary element on the basis of need (apart from DHP's)) rather than social assistance (although it is needs based).

-However, I am not clear that it can be made to relate to any of the 8 risks in Art 4(1)(a)-(h)- it is clearly there in part to top up benefits that are provided to ensure against these risks (so maybe it would count as special non-contributory benefit under 4(2A)(a)?)

Has there been a case on this point?

Thanks

Martin

Don't think there's been a case.

Are you looking at the updated version of 4(2A)? (p184 of the supplement to Rowland & White).

From that it seems to me that to be a special non-contributory cash benefit it must be listed in Annex IIa which HB isn't (see p 186/7). It does clearly fall within the initial part of 4(2A) and sub-paras (a) and (b), but I think it also has to fall within (c) and be listed in Annex IIa.

If that's right, then it seems to me that you have to bring it within 4(1)(a)-(h). HB is not exclusively aimed at those risks although it does seem to contain provision for most of them, since the premiums are all related to one or other of the risks mentioned. It might be arguable that the HB scheme is "legislation concerning" sickness, old-age, family, etc., at least in so far as the premiums are concerned. The problem with that is that HB might be within the material scope for some people but not others, which feels wrong to me.

For example could it be that HB for someone who qualifies for the disability premium falls within 4(1)(a), but HB for a single, low paid worker who doesn't qualify for any premiums is outside the material scope, because they are not facing any of the specified risks? Alternatively, could the rules for the disability premium fall within 4(1)(a) but other aspects of HB be outside it? Or does the fact that the HB scheme partially concerns the specified risks bring the whole of HB within the material scope?

Depending on the details of the case I think it would be possible to argue any of these approaches, but I suspect that the effect of the new version of 4(2A) is that if a benefit has the characteristics of both social security and social assistance, then it only falls within the material scope if it's listed in Annex IIa and can count as a special non-contributory cash benefit.

If your case goes back to before May 2005 and you can use the old version of 4(2A) than it seems to me that HB probably does fall within 4(2A)(a) and is within the material scope.

Thanks Keith,

Hadn't realised Art 4(2A) had been amended

Haven't got supplement yet (someone currently scurrying off to CPAG to get us some....).

Am I right in thinking that the amending reg (EC Reg 647/2005) takes effect from the day after its Official Journal publication (published on 4/5/05 so effective from 5/5/05)?

The case I am doing relates to 2 decisions on HB (one in October 2004 and one in July 2005)- on that basis the earlier decision would follow the old version of 4(2A) and the later one would follow the new version.....

I think that because HB is supplemental cover to the risks covered by 1(a) to (h) this should mean that the whole of the scheme comes within the material scope of 1408/71 (at least under the old version of (2A)): "This Regulation shall also apply to special non-con benefits...." (that is to say to the benefit not only to those aspects which cover a risk)- the commentary at 1070 of Rowland suggests "the fact that the benefit has a dual purpose does not exclude it from the material scope...."

Oh well- better to have half a case than no case at all.

Amendment came into force 5/5/05. There's an online version of 647/2005
here:

http://eur-lex.europa.eu/LexUriServ/site/en/oj/2005/l_117/l_11720050504en00010012.pdf

The relevant bit is on the second page.

I'm sure you're right about the old version of the reg.