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This section provides guidance for DMs about the international aspects of PIP. In
particular it deals with
1. The exclusion from PIP of persons subject to immigration control
2. The residence and presence conditions in UK law
3. Absences from GB
4. The effect of EU law on the residence and presence conditions
5. The EU rules concerning the co-ordination of social security
6. Transition from DLA to PIP - International issues

[C2002-C2004]

C2005 Persons Subject to Immigration control

Unless one of the exemptions described below applies, a PSIC is not entitled to
PIP (1).
1 I & A Act 99, s 115(1)

C2006 Meaning of PSIC « C2021

A PSIC is (1) a person who is not an EEA or Swiss national and who
1. requires leave to enter or remain in the United Kingdom but does not have it;
or
2. has leave subject to the condition that they do not have recourse to public
funds; or
3. has leave to enter or remain in the UK given as a result of a maintenance
undertaking; or
I & A Act 99, s 115(9)

C2007 Meaning of "maintenance undertaking"

A "maintenance undertaking" means (1) a written undertaking under the immigration
rules made by one person to be responsible for the claimant's maintenance and
accommodation.
1 I & A Act 99, s 115(10)

C2008 Exemptions « C2010 « C2021

For PIP, the exemption from the exclusion of PSIC applies to (1)
1. members of the family of a national of an EEA country provided that (2)
1.1 the EEA national is exercising their rights as a worker or self-employed
person under the EEA Agreement (3) and
1.2 the family member has rights under the EEA Agreement as a family member
2. a person who is lawfully working in GB and is a national of a State with which
the EU has made an Agreement under a specific Treaty (4) providing, in the field
of social security, for equal treatment of workers and any member of their
family living with them;
3. a sponsored immigrant regardless of the length of stay in the UK.
Note: The countries mentioned in 2. above are Turkey,Morocco, Algeria, Tunisia,
Slovenia and Switzerland.From 1.5.04 Slovenia acceded to the EU.
1 SS (I&A) Cql Amndt Regs, reg 2(2) & Sch Part II; 2 CDLA/708/07;
3 Agreement on the European Economic Area signed at Oporto on 2nd May 1992

as adjusted by the Protocol signed at Brussels on 17th March 1993; 4 Treaty of Amsterdam, art 310

[C2009]

C2010 Meaning of member of the family

For the purposes of C2008 1. someone is a "member of the family" of a person
where they are (1)
1. their spouse or civil partner
2. direct descendants (e.g. children, grandchildren) of the person or their spouse
or civil partner who are
2.1 under the age of 21 or
2.2 dependent on the person or on the person's spouse or civil partner
3. dependent direct relatives in the ascending line (e.g. father, grandfather) of
the person or the person's spouse or civil partner.
1 Directive 2004/38/EC, art 2, CDLA/708/07
Note: a different definition of "family member" applies in the context of applying the
EU social security co-ordination rules (see C2090)

C2011 Meaning of EEA Country

The European Economic Area (EEA) comprises all the Member states of the EU
plus Norway, Liechtenstein and Iceland.

C2012 Meaning of Sponsored Immigrant

A sponsored immigrant is a person (A) who has been given leave to enter or remain
in the UK upon another person (B) making a maintenance undertaking for that
person (A) in accordance with the immigration rules as defined in specific
legislation (1).
1 Immigration Act 1971, s 33(1) & 3(2)

[C2013-C2019]

C2020 Domestic law - Residence and Presence conditions

Under the Act, a person is not entitled to PIP unless they meet prescribed conditions
relating to residence and presence in GB (1).

1 WRA 12, s 77(3)

C2021 « C2099

The prescribed conditions are that on any day the claimant (1)
1. is present in GB and
2. has been present in GB for a period of (or periods amounting in total to) 104
weeks in the 156 weeks immediately preceding that day and
3. is habitually resident in the UK, the Republic of Ireland, the Isle of Man or the
Channel Islands and
4. is
4.1 not a PSIC within the meaning of specific legislation (2) (see C2006) or
4.2 exempt from the legislation excluding PSICs from PIP (3) (see C2008 et
seq)
Note: These conditions are affected by EU law (see C2070 et seq below).
1 SS (PIP) Regs, reg 16; 2 I & A Act 99, s 115(9); 3 SS (I&A) Cql Amendts Regs, reg 2(2)

C2022 Meaning of "Great Britain"

GB includes
1. England and Wales, and Scotland
2. adjacent islands including, Orkney, Shetland, the Hebrides, the Isles of Scilly,
the Isle of Wight and Lundy

1 Union with Scotland Act 1706 preamble & Art 1; Union with England Act 1707 (Scottish Parliament), Art 1

C2023

Northern
Ireland (1), the Isle of Man (2) and the Channel Islands (3) are not part of GB.

1 R(S) 5/85, para 9; 2 CSU 14/48; R(U) 8/81; 3 R(P) 2/64

[C2024]

C2025 Present in GB

To be present in a place means to be physically there on the day or period in
question. It is not the same as being resident in a place. A person may be resident in
a place without being present there (1) and vice versa.
1 R(U) 18/60; R(P) 2/67

C2026 Past Presence Test

The condition is that, with regard to any particular day of potential entitlement to PIP,
the claimant must have been present in GB for a period of (or periods totalling) 104
weeks in the 156 weeks immediately preceding that day (1).
Note: See C2133 et seq for guidance on the EU rules which allow period abroad to
be included as periods of presence in the UK for the purposes of the past presence
test.
1 SS (PIP) Regs, reg 16(b)

Example 1

Margery claims PIP on 2.9.14. She reports that she had been living in Australia since
2009 but returned to GB to live here permanently on 15.8.12. The DM calculated
that, during the 156 weeks ending immediately before 2.9.14, Margery had been
present in GB for 106 weeks and 6 days and so decided that she satisfied the past
presence test.

Example 2

Tom claims PIP on 13.10.14. He reports that he has been living with relatives in
South Africa since 2008 but says that he moved back to GB permanently on 8.11.12.
The DM calculated that, during the 156 weeks ending on 12.10.14, Tom had been
present in GB for 102 weeks and 5 days. The DM decided that Tom did not
immediately satisfy the past presence condition. However he accepted Tom's claim
as also being a claim in advance for the period beginning on 23.10.14 because on
22.10.14 Tom completed 104 weeks of presence.

C2027 Terminal illness

Where a claimant is terminally ill and makes a claim for PIP expressly on that
ground, the past presence test will not apply (1). A person is "terminally ill"2 at any time
if at that time the person suffers from a progressive disease and the person's death
in consequence of that disease can reasonably be expected within 6 months.
1 SS PIP Regs, reg 21; 2 WRA 12, s 82(4)

C2028 Habitual residence

The condition of entitlement is that, on any day for which PIP is claimed, the claimant
must be habitually resident in the UK, the Republic of Ireland, the Isle of Man or the
Channel Islands (collectively known as the Common Travel Area (CTA)).

C2029

There is no definition of "habitual residence" in UK domestic or EU law. However the
meaning of this phrase has been discussed in case law. Although broadly similar,
there are some differences between the meaning of habitual residence in UK
domestic law and the meaning that has developed in EU law.

C2030

Where EU applies the EU law meaning will take precedence, but if EU law does not
apply the meaning developed in domestic law should be applied. EU law will apply if
the person concerned has exercised their right (1) to move and reside freely in the
territory of the Member States.
1 TFEU, Art 21

C2031 Meaning in UK law

The expression "habitual residence" should be given its ordinary and natural
meaning. DMs should determine the question by considering all the facts of the case
in a common sense way and applying the relevant case law.

C2032 Requirement to establish a residence that is habitual in nature

To be habitually resident in a country a person must have actually taken up
residence and lived there for a period. It is not sufficient that the person came to this
country voluntarily and for settled purposes. He must be resident in fact for an
appropriate period of time which demonstrates that his residence has become, and
is likely to remain, habitual in nature (1).
1 House of Lords, Nessa v CAO (1999) I WLR 1937 HL

C2033 Settled intention to remain

The period of time cannot begin before the person is both living in the UK, and has a
settled intention to remain in the UK for the time being. The person does not have to
intend to remain permanently.

C2034 Relevant factors

Whether and when a person's residence has become habitual in nature is a question
of fact. The period is not fixed and depends on the facts of each case. Amongst the
relevant factors to be taken into account are bringing possessions so far as is
practicable, doing everything necessary to establish residence before coming,
having a right of abode, seeking to bring family, and having durable ties with the
country of residence or intended residence (1). The list is not exhaustive and any facts
which may indicate whether or not the residence is habitual in nature should be
taken into account.

1 House of Lords, Nessa v CAO (1999) I WLR 1937 HL

C2035

Only the appropriate weight should be given to factors wholly or partly outside the
person's control. The person may have close relatives, even immediate family,
outside the UK. There may be an intention that family members will join the person
here when permission to do so can be obtained. The person may, quite reasonably,
visit them regularly. That need not indicate that the person himself does not have a
settled intention to remain in the UK, or that he cannot be habitually resident here.
Cultural differences in the nature of contact between family members should be
respected.

C2036

It is not necessary to have permanent or private accommodation to establish
habitual residence. A person may be resident in a country whilst having a series of
temporary abodes.

C2037

A person's financial viability may be a relevant factor, but the test for habitual
residence should not be applied so as to prevent access to public funds. It must be
applied in a way that allows for the possibility of a claimant establishing both habitual
residence and an entitlement to benefits (1).
1 House of Lords, Nessa v CAO (1999) 1 WLR 1937 HL

C2038 Appropriate period of time

The appropriate period of time need not be lengthy if the facts indicate that a
person's residence has become habitual in nature at an early stage (1). In some
circumstances the period can be as little as a month, but it must be a period which is
more than momentary in a claimant's life history (2). A period of between one and three
months is likely to be appropriate to demonstrate that a person's residence is
habitual in nature. Cogent reasons should be given where a period longer than three
months is considered necessary (3).
1 House of Lords, Nessa v CAO (1999) 1 WLR 1937 HL; 2 CIS/4389/99; 3 CIS/4474/03

C2039 Becoming habitually resident

The nature of a person's residence should be considered throughout the period in
question, to establish whether or when it became habitual. The fact that a person's
residence has become habitual in nature after a period of time does not mean that
the residence was habitual in nature from the outset. Residence only changes its
quality at the point at which it becomes habitual.

C2040 Resuming a previous habitual residence

There may be special cases where a person who has previously been habitually
resident in the UK resumes that habitual residence immediately when he returns to
the UK following a period living abroad (1). The only element of habitual residence that
is bypassed by a returning former resident is the need to be resident in the UK for an
appreciable period. Factors to be considered in deciding whether the previous
habitual residence has been immediately resumed include the settled intention to
remain, whether the person is in a position to make an informed decision about
residence in the UK, the ties and contacts with the UK retained or established by the
person while abroad, the reasons why the claimant left the UK and became
habitually resident elsewhere, the similarity between their residence in the UK now
and when they were previously here, and the length of the period of absence (2). This
is a different situation to that where a person is temporarily absent from the UK and
does not lose their habitual residence during that period of absence.
1 House of Lords, Nessa v CAO (1999) 1WLR 1937 HL; 2 CIS/1304/1997 and CJSA/5394/1998

C2041 Meaning in EU Law

When deciding whether a person is habitually resident for EU law DMs should
consider whether a person is resuming a previous habitual residence before taking
into account other factors in paragraph C2042 below.

C2042 Resuming previous residence « C2041

A person with habitual residence in the CTA who exercised his right to freedom of
movement under EU law and then returns to resume his residence in the CTA may
be habitually resident immediately on his return (1).

1 Case C-90/97, Swaddling v CAO (1999) All ER (EC) 217

C2043

A PIP claimant who
1. was previously habitually resident in the CTA and
2. moved to live in another Member State and
3. returns to resume the previous habitual residence
is habitually resident immediately on arrival in the CTA.

C2044

In deciding whether the claimant is resuming previous residence the DM should take
account of the length and continuity of the previous residence in the CTA and
whether the claimant has maintained sufficient links with the previous residence to
be said to be resuming it rather than commencing a new period of residence.

C2045 Factors to take into account

When deciding where a person is habitually resident for EU law, the DM should take
into account the
1. person's main centre of interest (1)
2. length and continuity of residence in a particular country
3. length and purpose of the absence from that country and
4. intention of the claimant.
Note: This is not an exhaustive or conclusive list. There may be other factors that
are important in deciding whether a person is habitually resident in an individual
case.
1 Case 76/76 Di Paolo; R(U)7/85; R(U)8/88

C2046 Centre of interest

People who maintain their centre of interest in the UK, for example a home, a job,
friends, membership of clubs, are likely to be habitually resident in the UK. People
who have retained their centre of interest in another country and have no particular
ties here are unlikely to be habitually resident in the UK.

C2047 Length and continuity of residence

A person who has a home or close family in another country would normally retain
habitual residence in that country. A person who has previously lived in several
different countries but has now moved permanently to the UK may be habitually
resident here.

C2048 Length and purpose of absence

Where a person spends time away from the UK, the DM should consider the
frequency, length and purpose of the absences and decide whether habitual
residence in the UK has been lost. If a person who is working abroad returns
frequently, for example to visit family or because a home has been retained here, it
is likely that habitual residence in the UK has not been lost. Infrequent visits or the
purchase of a home abroad may point to the opposite.

C2049 Employment

The claimant's employment record and in particular the nature of any previous
occupation and plans for the future are relevant. A person with the offer of genuine
and effective work in the UK, whether full time or part time is likely to be habitually
resident here.

C2050 Intentions

The fact that a person may intend to live in the UK for the foreseeable future does
not, of itself, mean that habitual residence has been established. However, the
claimant's intentions along with other factors, for example the purchase of a home in
the UK and the disposal of property abroad may indicate that the claimant is
habitually resident in the UK.

C2051

A claimant who intends to reside in the UK for only a short period, for example on
holiday, to visit friends or for medical treatment, is unlikely to be habitually resident in
the UK.
Treated as Habitually Resident

C2052 Members of Her Majesty's Forces « C2061

A claimant who is resident outside GB in their capacity of a member of Her Majesty's
Forces (see the definition in C2062-3) is treated as habitually resident in the CTA (1).
1 SS (PIP) Regs, reg 20(a)

C2053 HM Forces - Family Members

A claimant who is living with a person who is abroad in the capacity of a member of
Her Majesty's Forces (as defined in C2062-3), and who is that person's
1. spouse or civil partner
2. son or daughter
3. step-son or step-daughter
4. father or mother
5. father-in-law or mother-in-law
6. step-father or step- mother
shall be treated as habitually resident in the CTA (1).
1 SS (PIP) Regs, reg 20(b)

C2055 Absence from Great Britain

In certain circumstances a person who is absent from GB can be treated as present.
This applies to four groups
1. Claimants who are temporarily absent
2. Claimants who are temporarily absent in order to receive medical treatment abroad
3. Members of Her Majesty's forces, aircraft workers and mariners
4. Family of Members of Her Majesty's forces
Note Periods when the claimant is treated as present under paragraphs C2056 to

C2068 « C2067

also count as periods of presence for the purpose of the past presence test

C2056 Meaning of "temporarily absent" « C2055 « C2057

A claimant is temporarily absent if, at the beginning of the period of absence, their
absence is unlikely to exceed 52 weeks (1).
1 SS (PIP) Regs, reg 17(2)

C2057 Temporary Absence- Up to 13 Weeks

A claimant who is temporarily absent (see C2056) from GB shall be treated as
present for the first 13 weeks of absence (1). At the end of that 13 weeks, unless
helped by the EU law provisions - see C2070 et seq or, exceptionally, one of the
other absence rules described in C 2058 to C2069 applies, the claimant will cease to
satisfy the condition of entitlement to PIP that they be present in GB.
1 SS (PIP) Regs, reg 17(1)

C2058 Absence to Receive Medical Treatment

Where (1)
1. the claimant's absence is unlikely to exceed 52 weeks and
2. the absence is solely in connection with arrangements made for the medical
treatment (see C2060) of the claimant for a disease or bodily or mental
disablement (which started before the claimant left GB) and
3. the arrangements referred to in sub-paragraph 2. relate to medical treatment
(see C2060)
3.1 outside
GB
and
3.2 during the period whilst the claimant is temporarily absent from GB and
3.3 by, or under the supervision of, a person appropriately qualified to carry
out that treatment
that claimant shall be treated as present in GB for the first 26 weeks of the absence.

1 SS (PIP) Regs, reg 18

[C2059]

C2060 Meaning of "medical treatment" « C2058 « C2058

"Medical treatment" means (1) medical, surgical or rehabilitative treatment (including
any course or diet or other regimen).
1 SS (PIP) Regs, reg 2

C2061 Members of HM Forces, aircraft workers & mariners « C2066

Where (1) the claimant is
1. abroad in the capacity of
1.1 a member of Her Majesty's forces or
1.2 an aircraft worker or
1.3. a mariner or
2. in employment prescribed for the purposes of specific legislation (2) in
connection with continental shelf operations
that claimant is to be treated as present in GB.
Note: Persons resident outside GB in their capacity as members of Her Majesty's
Forces are also treated as habitually resident in the CTA (See C2052)
1 SS (PIP) Regs, reg 19(1); 2 SSCB Act 92, s 120

C2062 Meaning of "Her Majesty's forces" « C2052 « C2053 « C2069

Except where C2063 applies, "a member of Her Majesty's forces" means (1)
1. a member of the regular forces (2), namely the Royal Navy, the Royal Marines,
the regular army or the Royal Air Force or
2. a member of the reserved forces (2), namely the Royal Fleet Reserve, the Royal
Naval Reserve, the Royal Marines Reserve, the Army Reserve, the Territorial
Army, the Royal Air Force Reserve or the Royal Auxiliary Air Force
who is over the age of 16 and not absent on desertion.

1 SS (PIP) Regs, reg 19(2); 2 Armed Forces Act 06, s 374

C2063 « C2062

A person is not a member of Her Majesty's Forces if (1) they are serving as a member of
1. any naval force of Her Majesty's forces and locally entered that naval force at
an overseas base, provided that the person
1.1 has not previously been an insured person under Part 1 of the National
Insurance Act 1965 and
1.2 is not paying and has not previously paid primary Class 1, Class 2 or
Class 3 contributions under
1.2.a
the Social Security Act 1975 or
1.2.b
the Social Security Contributions and Benefits Act 1992 or
2. any military force of Her Majesty's forces
2.1 who entered that force or was recruited to that force outside the UK and
2.2
where the depot of their unit is situated outside the UK or
3. any air force of Her Majesty's forces
3.1 who entered that force or was recruited for that force outside the UK
and
3.2 is liable under the terms of engagement to serve only in a specified
place outside the UK.
1 SS (PIP) Regs, reg 19(2) & Sch 2

C2064 Meaning of "aircraft worker"

An "aircraft worker" means (1) a person who is employed under a contract of service
1. as a pilot, commander, navigator or other member of the crew of any aircraft
or
2. in any other capacity on board any aircraft, provided the employment is for the
purposes of the aircraft or its crew or any passengers, cargo or mail carried
on that aircraft;
provided that the contract is entered into in the UK with a view to its performance (in
whole or in part) while the aircraft is in flight
Note: the definition excludes a person who is in employment as a member of Her
Majesty's forces.
1 SS (PIP) Regs, reg 19(3)

C2065 Meaning of "mariner"

A "mariner" means (1) a person who is in employment under a contract of service as a
1. master or member of the crew of any ship or vessel or
2. in any other capacity on board any ship or vessel provided that the
employment is for the purposes of that ship or vessel or her crew or any
passengers, cargo or mails carried by the ship or vessel.
Provided the contract is entered into in the UK with a view to its performance while
the ship or vessel is on her voyage.
Note: the definition excludes a person who is in employment as a member of Her
Majesty's forces.
1 SS (PIP) Regs, reg 19(3)

C2066 Continental Shelf Operations - Prescribed employment

For the purposes of C2061 2. employment prescribed for the purposes of specific
legislation in connection with continental shelf operations means (1) any employment,
whether or not under a contract of service, in any designated or prescribed area in
connection with any activity mentioned in specific legislation (2).

1 SS Ben (PA) Regs, reg 11(1); 2 Oil and Gas (Enterprise) Act 1982, s 23(2)

C2067

Designated area means (1) any area set out by Order in Council under specific
legislation (2) as an area where the UK may explore the seabed, subsoil and exploit
their natural resources.

1 SS Ben (PA) Regs, reg 11(1); 2 Continental Shelf Act 1964

C2068 Prescribed area means (1) any area over which Norway or any EU country (except the
UK) exercises sovereign rights to explore the seabed and subsoil and exploit the
natural resources or other named areas. This area must be outside the territorial
water of
1. Norway
or
2. any EU country (except the UK).
1 SS Ben (PA) Regs, reg 11(1)

C2069 HM Forces - family members « C2057

A claimant who is living with a person who is abroad in the capacity of a member of
Her Majesty's Forces (as defined in C2062-3), and who is that person's
1. spouse or civil partner
2. son or daughter
3. step-son or step-daughter
4. father or mother
5. father-in-law or mother-in-law
6. step-father or step- mother
shall be treated as present in GB (1) (including for the purposes of the past presence
test).
1 SS (PIP) Regs, 2 reg 19(1)(c)
The effect of EU law

C2070 Introduction « C2021 « C2057

There are two main kinds of EU legislation: regulations and directives. EU
regulations apply directly and are part of UK law. Directives are binding upon each
EU Member State but each country chooses how to implement them

C2071

There are two current sets of EU regulations relating to the co-ordination of Social
Security benefits across the Member States. These are
1. Regulation (EC) N0. 883/2004 which sets out the main rules, and
2. Regulation (EC) No. 987/2009 which deals with the administrative procedures
to be followed in implementing the main rules.
Note: For the EU Member States, these regulations replaced earlier regulations (1)
with effect from 1.5.10. They applied to Switzerland from 1.4.12 and to Norway,
Iceland and Liechtenstein from 1.6.12. The old regulations (1) continue to apply in
certain transitional cases. See also C2087 to C2088 below concerning third country
nationals.

1 Reg (EEC) 1408/71 & Reg (EEC) 574/72

C2072

EU provisions do not create a harmonized social security system common to all EU
countries. EU provisions coordinate the national social security systems of EU
countries so that a worker moving within the EEA may
1. be protected against the risks covered by EU provisions and
2. maintain rights acquired in one EEA country when moving to another country.

C2073

Where Regulation 883/04 applies it can have the effect that the UK's domestic rules
about residence and presence are modified.

[C2074-C2079]

Countries where EU regulations apply

C2080 The EU Member States

The EU regulations relating to the co-ordination of social security apply to the
Member States of the European Union which are:
1. Austria (joined the EU on 1.1.95)
2. Belgium
3. Bulgaria (joined the EU on 1.1.07)
4. Cyprus (joined the EU on 1.5.04)
5. Czech Republic (joined the EU on 1.5.04)
6. Denmark (excluding the Faroe Islands and Greenland)
7. Estonia (joined the EU on 1.5.04)
8. Finland (including the Aaland Islands) (joined the EU on 1.1.95)
9. France (including Guadeloupe, Martinique, Mayotte, Reunion, French Guiana,
Saint Barthelemy and Saint Martin but excluding Monaco)
10. Germany
11. Greece
12. Hungary (joined the EU from 1.5.04)
13. Ireland
14. Italy (excluding the Vatican City and San Marino)
15. Latvia (joined the EU on 1.5.04)
16. Lithuania (joined the EU on 1.5.04)
17. Luxembourg
18. Malta (joined the EU on 1.5.04)
19. Netherlands (excluding for the purposes of this Chapter, the Dutch Antilles)
20. Poland (joined EU on 1.5.04)
21. Portugal (including Madeira and the Azores)
22. Romania (joined the EU on 1.1.07)
23. Slovakia (joined the EU on 1.5.04)
24. Slovenia (joined the EU on 1.5.04)
25. Spain (including the Balearic Islands, the Canary Islands and the Spanish
enclaves of Ceuta and Melilla)
26. Sweden (joined the EU on 1.1.95)
27. United Kingdom (including Gibraltar but excluding the Isle of Man and for the
purposes of this Chapter, the Channel Islands)

C2081 The European Economic Area

The EEA comprises the Member States of the EU plus Iceland, Liechtenstein and
Norway.

C2082 Meaning of "EEA State"

For the sake of simplicity, for the purposes of the guidance below references to an
"EEA State" means any Member State of the EU, plus Iceland, Liechtenstein,
Norway and Switzerland and "EEA national" means a national of any of those
countries.

C2085 Personal Scope « C2095

A person is within the personal scope of EU provisions if that person (1)
1. is
1.1 a national of a EEA State, or
1.2 a stateless person or refugee residing in an EEA State
who is or has been subject to the legislation of one or more EEA States or
2. is a member of the family or a survivor of a person falling within sub-
paragraph 1.

1 Reg (EC) 883/04, Art 2(1)

C2086

Also within the personal scope of EU provisions (1) are survivors of persons who have
been subject to the legislation of one or more EEA States (regardless of the
nationality of such persons - but see C2087 below), provided the survivor is
1. a national of an EEA State, or
2. a stateless person or refugee residing in one of the EEA States.
1 Reg (EC) 883/04, Art 2(2)

C2087 Third Country nationals « C2071 « C2086 « C3082

The UK is not covered by the extension of rights to Third Country Nationals (TCNs)
under Reg (EC) 883/04, which came in to force on 1.5.10. However TCNs will
continue to be subject to the terms and limitations of Reg (EEC) 1408/71 as
summarised below.

C2088 « C2071 « C3082

An amendment to EU Regulations (1) extended the provisions of Reg (EEC) 1408/71
to third country nationals (TCNs) from 1.6.03 provided those nationals were legally
resident in the territory of a Member State, were insured workers, and were in a
situation that involved more than one state. However the following states did not
extend the terms of Reg (EEC) 1408/71 to TCNs:
Denmark
Iceland
Norway
Liechtenstein
Switzerland.

1 Reg (EC) 859/2003

C2089

Therefore a TCN who has worked will be able to export an award of AA or DLA
(Care) or CA if he satisfies the same conditions that apply to an EEA national (and
the UK is the competent state for payment of a sickness benefit) except where he
leaves GB to live in Denmark, Iceland, Norway, Liechtenstein, or Switzerland. Of
course, the TCN must be legally residing in both the UK and then the new state of
residence that they move to.

C2090 Meaning of "Member of the family" « C2010 « C2119 « C2121

In the context of the EU regulations relating to the co-ordination of Social Security
benefits "Member of the family means (1)
1. the spouse (or civil partner) and
2. children under 18 and
3. children over 18 who are dependent.
1 Reg (EC) 883/04, Art 1(i)

C2091 Meaning of dependent

A UT Judge has analysed the EU case law on the meaning of "dependent" in the
context of the EU Citizenship Directive (1). He summarised that case law (2) as finding
that (3)
1. a person is only dependent who actually receives support from another
2. there need be no right to that support and it is irrelevant that there are
alternative sources of support available
3. that support must be material, although not necessarily financial, and must
provide for, or contribute towards the basic necessities of life.
1 Directive 2004/38/EC; 2 Case C-316/85, Centre Public D'Aide Sociale de Courcelles v Lebon;
Case C-2000/02, Chen v Secretary of State for the Home Department; Case C-l/05, Jia v Migrationsverket;
3 CIS/2100/07

[C2092-C2094]

C2095 Deciding whether Reg 883/04 applies

The DM will need to decide whether the claimant comes within the personal scope of
the Regulations (see C2085 et seq). They will then need to decide whether the UK is
the State responsible for payment of the benefit involved ("the competent state").

C2096 What type of Benefit is PIP?

The EU Social Security Co-ordination Regs set out different rules depending upon
the branch of social security involved (e.g. "sickness benefits", "old-age benefits",
"family benefits"). On 18.10.07 the Court of Justice of the European Union (the
CJEU) held (1) that the care component of DLA was a sickness benefit. However on
5.5.11 the CJEU confirmed that the mobility component of DLA was a Special Non-
Contributory Benefit (SNCB)2.
1 ECJ Judgement Case C 299/05; 2 Bartlett, Gonzales Ramos and Taylor v Secretary of State for

Work and Pensions Case C-537/09,

C2097

The Daily Living Component of PIP is a "sickness benefit" for the purposes of Reg
(EC) 883/04; the Mobility Component of PIP should be treated as an SNCB.

C2098 EU Regs Apply - Effect on the Daily Living Component

On any day where the EU regulations relating to the co-ordination of social security
systems (1) apply to a claimant, the UK is the competent state for the payment of cash
sickness benefits (see C2110 et seq) for that claimant and that claimant is habitually
resident in an EEA state (other than the UK), the claimant does not have to
1. be present in GB or
2. be habitually resident in GB or
3. satisfy the past presence test
provided that claimant can demonstrate a genuine and sufficient link to the UK's
social security system (2) (see C2130 et seq below).
1 Reg (EEC) 1408/7; Reg (EC) 883/04; 2 PIP Regs, reg 23

C2099 EU Regs Apply - Effect on the Mobility Component

If the EU Regs relating to the co-ordination of social security systems (1) apply, for the
purposes of the Mobility Component, the claimant is not required to satisfy the
past presence test, provided that the claimant can demonstrate a genuine and
sufficient link to the social security system of the UK (2) (see C2130 et seq below)
Note: as regards the Mobility Component of PIP, the claimant will still have to satisfy
the conditions in C2021.1 & 3 i.e. they will have to be present in GB and habitually
resident in the UK, the Republic of Ireland, the Isle of Man or the Channel Islands
1 Reg (EEC) 1408/71, Reg (EC) 883/04; 2 PIP Regs, reg 17

[C2100-C2109]

C2110 Deciding if the UK is the Competent State « C2098

The Act specifically states (1) that a person to whom the EU regulations concerning the
co-ordination of social security apply is not entitled to the Daily Living Component of
PIP for any period, unless, during that period, the UK is the competent state for the
payment of sickness benefits in cash.
1 WRA 12, s 84

C2111 Which state's legislation applies? « C2122 « C4129

The EU regulations include provisions intended to avoid situations where the
legislation of more than one Member State applies. In deciding whether the UK is the
competent state for the payment sickness benefits in cash, DMs will need to
consider these provisions.
Note: The rules about which State's legislation applies are not necessarily
conclusive as to competency, the EU co-ordination regulations have to be read as a
whole.

C2112 « C2113

The general rules are (1) that
1. a person pursuing activity as an employed or self-employed person in a EEA
State is subject to the legislation of that State.
2. a civil servant is subject to the legislation of the EEA State to which the
administration employing him is subject.
3. a person receiving unemployment benefits in accordance with a specific
provision in the EC co-ordination regs (2) from the EEA State of residence is
subject to the legislation of that EEA State.
4. a person called up or recalled for military or civilian service by an EEA State,
is subject to the legislation of that Member State.
5. any other person to whom sub-paragraphs 1 to 4 do not apply is subject to the
legislation of the EEA State of residence.

1 Reg (EC) 883/04, Art 11; 2 Art 65

C2113 « C2114

Except in relation to the benefits listed at paragraph C2114, for the purposes of
paragraph C2112.1, a person receiving cash benefits because of, or as a
consequence of, their activity as an employed or self-employed person shall be
considered to be pursuing that activity (1).

1 Reg (EC) 883/04, Art 11(2)

C2114 « C2113 « C2122 « C4129

Paragraph C2113 does not apply to (1)
1. invalidity benefits
2. old age or survivors' pensions
3. pensions in respect of accidents at work or occupational diseases
4.
sickness benefits in cash which are for treatment for an unlimited period.
1 Reg (EC) 883/04, Art 11(2)

C2115 Meaning of "legislation"

"Legislation"
means (1) the laws, regulations, statutory provisions and all other
implementing measures relating to the branches of social security listed in the EU
co-ordination regs (2).
1 Reg (EC) 883/04, Art 1(l); 2 Art 3

C2116 Meaning of "competent Member State"

The "competent Member State" means (1) the EEA State in which the competent
institution is situated.
1 Reg (EC) 883/04, Art 1(s)

C2117 Meaning of "competent institution"

The "competent institution" means (1)
1. the institution with which the person concerned is insured at the time of the
application for benefit or
2. the institution from which the person concerned is or would be entitled to
benefits if he or a member of his family resided in the EEA State in which the
institution is situated or
3. the institution designated by the competent authority of the EEA State
concerned.
1 Reg (EC) 883/04, art 1(q)

C2118

C2119 Competency for Cash Sickness Benefits

There are two main rules depending upon whether the claimant is an "insured
person" or a member of an "insured person's" family (see C2090) or a person
receiving a pension or a member of the family of a person receiving a pension (see C2123).

C2120 Insured persons

In relation to sickness benefits an "insured person" means (1) any person who satisfies
the conditions of entitlement for a sickness benefit.

1 Reg (EC) 883/04, Art 1(c)

C2121

An "insured person" (and members of that person's family - see C2090) who is
residing or staying in an EEA State (A) other than the EEA State (B) in which they
are insured, is entitled to sickness benefits in cash from EEA State B1.

1 Reg (EC) 883/04, Art 21

C2122

The following persons should be regarded as persons insured in the UK for cash
sickness benefits
1. those covered by GB contributions in the relevant income tax years that would
enable them to claim ESA(Cont) (RITY cover) provided they have not been
insured for sickness benefits in an EEA State other than the UK since they
worked and paid NI contributions in respect of that work in the UK
2. posted workers (see C2135) and frontier workers (see C2136) who work in
GB and
3. claimants who retain worker status whilst in receipt of JSA(CB), IBST,
ESA(Cont) in the assessment phase, and MA,
Note: DMs are reminded of the need to consider which EEA State's legislation
applies (see C2111 to C2114). In general, where a person is living and working in an
EEA State other than the UK, it is the legislation of that EEA State which will apply.

C2123 Pensioners « C2119

The general rule is that a person (and any member of that pensioner's family)
receiving a pension under the legislation of one or more Member States is to be paid
cash sickness benefits by the EEA State responsible for the cost of sickness
benefits in kind (1) (but see C2126 et seq below for details of how responsibility is
determined).

1 Reg (EC) 883/04, Art 29

C2124

In receipt of a pension (under GB legislation) means entitled to and actually in
receipt of
1. state RP of any category (except Category D only awards with no contributory
element) or
2. main phase ESA(Cont), long-term IB, SDA, or
3. a bereavement benefit, including widows' benefit and Industrial Injuries Death
Benefit (but not a bereavement payment which is not a pension but a Death
Grant) or
4. a pension for Industrial Injuries Disablement Benefit (including REA and RA).
Note: This definition of "pension" derives from the EU co-ordination regulations

C2125 Meaning of sickness "benefits in kind"

For the purposes of the EU rules about sickness and maternity benefits "benefits in
kind" means (1) benefits in kind provided for under the legislation of an EEA State
which are intended to
1. supply
2. make available
3. pay directly to a provider for
4. reimburse the cost of
medical care and products and services ancillary to that care, including long term
care benefits in kind.
1 Reg (EC) 883/04, Art 1(va)(i)
Deciding which state is responsible for sickness benefits for a pensioner or a member of their family

C2126 Entitled to sickness benefits in kind « C2123

Where a person who receives a pension or pensions under the legislation of one or
more EEA States, one of which is the EEA State of residence and the person is
entitled to sickness benefits in kind under the legislation of the EEA State of
residence, then that State will be responsible for payment sickness benefits (in cash
and in kind)1 to that pensioner and members of their family.
1 Reg (EC) 883/04, Art 29

Example

Martin resides in Germany. He receives pensions under both German and UK
legislation and he is entitled to sickness benefits in kind under German legislation.
Germany is the Member State responsible for paying cash sickness benefits to
Martin.

[C2127]

C2128 Not entitled to sickness benefits in kind « C2129

Where a person receives a pension or pensions under the legislation of one or more
EEA States but there is no entitlement to benefits in kind under the legislation of the
EEA State of residence, sickness benefits in cash and in kind will be provided to the
pensioner and members of their family by one of the EEA States responsible for the
pension(s) determined as follows (1).
1 Reg (EC) 883/04, Art 24
1. where the person is entitled to benefits in kind under the legislation of only one
EEA State then that EEA State will bear the cost of benefits in kind and pay
the cash sickness benefits.
2. where the person is entitled to benefits in kind under the legislation of two or
more EEA States responsible for the pension(s) then the EEA State where the
person had pensions insurance for the longest period of time will bear the cost
of benefits in kind and pay cash sickness benefits.
1 Reg (EC) 883/04, Art 24

Example 1

Chris resides in Spain. He is entitled to and receives a full UK Retirement Pension.
He does not receive a pension from any other Member Sate and he is not entitled to
benefits in kind under Spanish legislation. Chris claimed the Daily Living Component
of PIP and the DM decided that, under EU rules the UK was the state responsible for
paying sickness benefits in cash and in kind and that therefore PIP (DLC) could be
paid to him in Spain

Example 2

Renate resides in Greece. She is entitled to a UK Retirement Pension at a reduced
rate but she is also entitled to a German Retirement Pension. Renate is not entitled
to benefits in kind under Greek law. The DM found out that Renate had worked and
paid pensions insurance in Germany for 25 years but had only paid Class 1 NI
contributions for 10 years in the UK. The DM decided that the UK was not the
competent state for the payment of sickness benefits.

C2129 Sickness benefits in kind not dependent on insurance

Where a person who receives a pension under the legislation of one or more EEA
States (other than the EEA State of residence) resides in a EEA State where
entitlement to sickness benefits in kind is not subject to conditions of insurance or
activity as an employed or self-employed person then the responsible state is
determined in accordance with the rule in C2128 above. The responsible State
("State A") will pay sickness benefits in cash and in kind to the pensioner and
members of their family to the extent that they would be entitled to those benefits if
they were resident in that State A.

Example

Julie resides in Cyprus. She receives a full UK Retirement Pension and is entitled to
sickness benefits in kind under Cypriot law. She is not entitled to any Cypriot
pensions or benefits, The DM decided that the UK was responsible for the payment
of cash sickness benefits to Julie.

C2130 Deciding if there is a "Genuine and Sufficient Link" « C2098 « C2099 « C2133

The phrase "genuine and sufficient link" is not defined, but EU case law gives some
indications of the factors to take into account. DMs will have to make a balanced
judgement based on all the facts of the case. Among the relevant factors which may
be considered are (1)
1. Personal factors, for example whether the claimant is receiving a UK benefit
or pension .
Note: where the claimant has a spouse's or survivor's pension, that will be a
relevant factor but is not sufficient in itself where the claimant has never lived in the
UK or been a UK worker.
2. Periods of residence or work in the UK for example
2.1 Whether the claimant has spent a significant part of their life in the UK
2.2 Whether the claimant has worked and paid UK NI contributions as a
result of that work and
3. Family
factors: for example where the claimant is an adult dependant child
of a person who is receiving a UK pension. Where the claimant is the spouse
or civil partner of a person with a genuine and sufficient link with the UK then
that will be a relevant but not conclusive factor in deciding whether the
claimant has a genuine and sufficient link
Note: This is not a checklist and it will be for the DM to decide how much weight to
give to each relevant factor in coming to an overall determination of whether there is
a genuine and sufficient link to the UK's social security system.
1 Case C-503/09 LS v Secretary of State for Work and Pensions
C2131 - C2132

C2133 Effect of EU Law - the Past Presence Test « C2026

Persons within the scope of the EU co-ordination regulations claiming PIP do not
have to satisfy the past presence test, if they can show that they have a genuine and
sufficient link to the UK's social security system (see C2130). However a person
within the personal scope of EU legislation who moves to the UK, or returns to the
UK, from another EEA Member State who does not have a genuine and sufficient
link as at the first day of potential entitlement may nonetheless be able to satisfy the
past presence test by means of EU law (see C2I34 to C2137 below)..

C2134 Past presence test deemed to be met

The past presence test is deemed to be met for certain categories of claimant who
are EEA nationals and who demonstrate a sufficient link to the UK in another way.
The following groups are not required to satisfy the past presence test at the first
date from which benefit could be established if on that date they are:
1. Current workers (and their family members), whether employed or self-
employed, who pay UK national insurance contributions. This includes posted
workers (see C2135) and frontier workers (see C2136) or
2. People who are treated as workers (and their family members) who, although
not currently employed, are receiving ESA in the assessment phase or those
who continue to be insured for ESA after they cease work

C2135 Meaning of "posted worker" « C2122 « C2134

A posted worker (1) is an employed or self employed person normally working in GB
but posted temporarily to work in the territory of another EEA member state, for a
period which is anticipated to be no longer than 24 months.
1 Reg (EC) 883/04 Art 12

C2136 Meaning of "frontier worker" « C2122 « C2134

Frontier
worker (1) means an employed or self-employed person who works in GB but
lives in another EEA member state where he returns daily, or at least once a week.
1 Reg (EC) 883/04 Art 1(f)
Aggregation and the past presence test

C2137 Daily Living Component « C2133

Where the claimant is within the personal scope of the EU co-ordination regs and
the UK is the competent state for the payment of cash sickness benefits, for the
purposes of the Daily Living Component of PIP, periods of insurance for cash
sickness benefits completed in another Member State qualify to be aggregated (1) with
residence in the UK when considering whether the past presence test is met.
1 Reg (EC) 883/04 Art 6

C2138 Mobility Component

As the Mobility Component is to be treated as an SNCB, it is only payable in the UK.
However, for the purpose of satisfying the past presence test, periods of insurance
for social security benefits arising from periods of employment, self-employment or
residence in another EEA State qualify to be aggregated with residence in the UK
when considering whether the past presence test is met

C2139

to C2159

C2160 Commencement

The rules described in this Chapter apply from 8.4.13 to persons whose only or
principal residence at the date of claim for PIP is located in one of the following
postcode areas
BL; CA; CH (except CH (5), CH (6), CH (7) and CH (8)); CW; DH; DL (except DL (6), DL (7),
DL (8), DL (9), DL (10) and DL (11)); FY; L; LA (except LA 2 7, LA 2 8, LA (6) 2 and LA (6) 3); M;
NE; PR; SR; TS (Except TS (9)); WA; WN

C2161

Otherwise the rules take effect from 10.6.12.
International Issues