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Chapter C4: ESA

Contents
C4001:Introduction
C4002:Meaning of ESA
C4005:Presence in GB
C4007:Meaning of "in Great Britain"
C4008:Days of arrival and departure
C4009:Meaning of "Great Britain"

Absence from GB - Mariners & Airmen
C4015:Mariners
C4020:Airmen

Temporary Absences
C4030:Meaning of "temporary absence"
C4031:General meaning
C4033:Intention
C4036:Length of absence
C4042:Purpose of absence
C4045:The DM's decision
C4047:Onus of proof
C4048:Change of circumstances
C4055:Absences of up to 4 weeks
C4056:Absence to receive medical treatment
C4057:Meaning of "appropriately qualified"
C4058:Meaning of "dependent child"
C4059:Meaning of "child"
C4060:Meaning of "qualifying young person"
C4065:Full-time education
C4066:Non-advanced education
C4067:Meaning of "household"
C4068:Meaning of "partner"
C4069:Meaning of "couple"
C4075:Absence in order to receive NHS treatment
C4076:Family member of a Member of a member of the Armed Forces
C4078:Meaning of "member of Her Majesty's Forces
C4085:ESA in Youth - Residence and Presence Conditions
C4090:Continental Shelf Operations - Prescribed employment
C4093:Meaning of "aircraft worker"
C4094:Meaning of "mariner"

The Effect of EU law
C4100:Introduction
C4104:Transitional provisions
C4106:Third country national
C4115:Personal Scope
C4119:Meaning of "member of the family"
C4119:What type of benefit is ESA?
C4120:Deciding which EEA State's legislation applies
C4124:Contribution conditions - EU provisions
C4126:Incapable of work in another EEA country

Deciding the competent state for the payment ESA during the
C4128:Assessment phase
C4129:Insured person
C4135:Pensioners
C4137:Meaning of sickness "benefits in kind"
C4138:Deciding which state is responsible for sickness benefits for a pensioner
C4141:Visits to the United Kingdom
C4142:Staying in another EEA country
C4143:Transfer or return to another EEA country

The EU rules concerning "invalidity benefits"
C4150:Introduction
C4153:Countries with Type A invalidity benefit
C4155:Countries with Type B legislation
C4156:Entitlement to invalidity benefit in only one country
C4157:Not entitled in relevant country
C4165:Subject to both Type A and Type B legislation
C4166:Subject to Type B legislation
C4167:Method 1
C4168:Method 2 - pro rata
C4169:Date from which pro-rata invalidity benefit is payable
C4170:Uprating of pro-rata main phase ESA

Pro-rata calculation - exceptions to the normal rules
C4175:Not entitled to invalidity benefit in all EEA countries
C4176:Insured in one country for less than one year

Entitled to an old age pension in another EEA country
C4180:Introduction
C4181:Person subject only to Type A legislation

Effect of EU law - ESA under the youth conditions
C4190:Introduction
C4200:Effect of the judgment on ESA(Y)
C4202:Meaning of "Genuine and Sufficient Link"

International Issues

Chapter C4: ESA

C4001 Introduction

This Chapter contains guidance on the international aspects of new style ESA as
they apply from 29.4.13. In particular it deals with :
1.
Presence in GB and the effect of temporary absences:
2.
The residence and presence conditions for ESA where the conditions relating
to youth are satisfied:
3.
The use of insurance in other countries to satisfy the contribution conditions
for new style ESA.
4.
The effect of the EU rules concerning the co-ordination of social security
benefits on ESA.
Note: at present (June 2013) it is not possible to make a claim for new style ESA
from abroad, nor to export it. Much of the guidance below will therefore not be
immediately applicable.

C4002 Meaning of ESA

In this chapter references to ESA are to be read as referring to "new style ESA" as
defined in Chapter M1 (Universal Credit: Transition - Pathfinder).

[C4003-C4004]

C4005 Presence in GB C4088

It is one of the basic conditions of entitlement to ESA that the claimant is "in GB"1. In
addition, the Act provides that a person shall be disqualified for receiving ESA for
any period during which they are absent from GB (2). However both these rules are
subject to regulations (3) which provide that a claimant can nonetheless be entitled to
and receive ESA during certain absences.

1 WR Act 07, s 1(3)(d), 2 s 18(4): 3 s 22 & Sch 2 paras 5 & 6

C4006

The presence condition can also be subject to the application of EU law (see C4100
et seq)

C4007 Meaning of "in Great Britain"

To be "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

C4008 Days of arrival and departure

With regard to any particular day, a person should be regarded as present if they are
in GB for part of a day: thus the day when a person arrives in GB and a day when
they leave count as days when they are "in" GB.

C4009 Meaning of "Great Britain"

GB includes :
1.
England and Wales, and Scotland (1):
2.
adjacent islands including, Orkney, Shetland, the Hebrides, the Isles of Scilly,
the Isle of Wight and Lundy and:
3.
the territorial waters of the UK adjacent to GB (2)
1 Union with Scotland Act 1706 preamble & Art 1; Union with England Act 1707 (Scottish Parliament), Art 1;

2 JS Act 95, s 35(1) (definition of "Great Britain")

C4010

N
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

[C4011-C4014]

Absence from GB- Mariners & Airmen

C4015 Mariners

A mariner is (1) a person employed under a contract of service on board any ship or
vessel :
1.
as a master or:
2.
as a crew member or:
3.
in any other capacity on board when the employment in that other capacity is
with the ship or vessel or the crew or any passengers or cargo or mail carried
and the contract is entered into in the UK with a view to its performance (in
whole or in part) while the ship or vessel is on its voyage.

1 SS (Mariners' Ben) Regs, reg 1(2)

C4016

This does not include a serving member of the forces (1) except those undergoing
training or instruction for 72 hours or less2in one of the following organisations or establishments
1
Royal Fleet Reserve.
2
Royal Navy Reserve.
3
Royal Marines Reserve.
4
Army Reserve.
5
Territorial Army.
6
Royal Air Force Reserve.
7
Royal Auxiliary Air Force
8
The Royal Irish Regiment, to the extent that its members are not members of
the regular armed forces

1 SS (Conts) Regs, Sch 6, Part 1; 2 SS (Mariners' Ben) Regs, reg 1(2)

C4017 C4018 C4019

A person who is, or has been, employed as a mariner on board a ship or vessel or
who is under contract to travel (at his employer's expense) to start such employment
is not disqualified for receiving ESA during an absence from GB where (1), because of :
1.
any hurt or injury or illness suffered by the person while so employed or under
contract to travel or:
2.
any action taken to prevent infection while the person is so employed or under
contract to travel
that person has been left outside GB or has been discharged or has not started the
employment.
Note: This provision continues to have effect until the date established in
accordance with C 4019 below.

1 SS (Mariners' Ben) Regs, reg 4 (a)

C4018 C4019

A person who is or has been employed as a mariner on board any ship or vessel or
who is under contract to travel (at his employers expense) to start such employment
remains entitled to ESA where (1) :
1.
while so employed or under contract to travel, that person is left outside GB
for any reason other than those referred to in C4017 and:
2.
that person reports to the appropriate superintendent or consular officer or
chief officer of customs not later than 14 days after
2.1 being left
or
2.2
if, at the time of being left the person was placed in custody,
immediately after his release from custody.

Note This provision continues to apply until the date established in accordance with

C4019

1 SS (Mariners' Ben) Regs, reg 4 (b)

C4019
The provisions described in C4017 & C4018 cease to have effect (1)
1. whenthe person starts or resumes employment outside GB or
2. in any case where there is undue delay in the person being returned to the
place to which specific regulations (2) require them to be returned, on the
occurrence of the delay or
3. In any other case when the person is returned to the place required by regs (2)
1 SS (Mariners' Ben) Regs, reg 4; 2 Merchant Shipping (Repatriation) Regs, reg 7

C4020 Airmen

An airman is (1) a person employed under a contract of service on any aircraft
1. as a pilot or
2. as a commander or
3. as a navigator or
4. as any other crew member or
5. in any other capacity on board when the employment in that other capacity is
with the aircraft or the crew or any passengers or cargo or mail carried and
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.

1 SS (Airmen's Ben) Regs, reg 1(2)

C4021

This does not include a serving member of the forces (1) except those undergoing
training or instruction for 72 hours or less (2) in one of the following organisations or establishments
1
Royal Fleet Reserve.
2
Royal Navy Reserve.
3
Royal Marines Reserve.
4
Army Reserve.
5
Territorial Army.
6
Royal Air Force Reserve.
7
Royal Auxiliary Air Force
8
The Royal Irish Regiment, to the extent that its members are not members of
the regular armed forces.
1 SS (Conts) Regs, Sch 6, Part 1; 2 SS (Airmen's Ben) Regs, reg 1(2)

C4022
Except in the case of a person disqualified for misconduct (see Chapter U6 - ESA
Disqualification), an airman is not disqualified (1) for receiving ESA because of
absence from Great Britain if the airman
1. is, or has been, under contract to travel at the employer's expense to start
work and
2. has been left outside Great Britain or unable to start work because of any hurt
or injury or illness or action taken to prevent infection.
1 SS (Airmen's Ben) Regs, reg 2

[C4023-C4029]

Temporary Absences

C4030 Meaning of "temporary absence"

There is no statutory definition of "temporary absence". However the meaning of
temporary absence has been considered by both the Commissioner and the Courts.
On 16.3.94 the Court of Appeal decided an appeal involving disqualification for being
absent from Great Britain (1). All previous case law on temporary absence must be
read in the light of the Court's decision.
1 R(S) 1/96

C4031 General meaning

"Temporary absence" is not to be equated with "not permanent"1.
1 R(S)1/96

Example

A man aged 25 leaves GB to live in Egypt. He states that he intends to work there
until he is 60 and then he will return to GB. Although the absence is not permanent it
is too long to be regarded as temporary.

C4032

In deciding whether an absence is temporary the decision maker should consider
1. the claimant's intention and
2. the length of the absence and
3. the purpose of the absence (1).
1 R(S)1/96; R(P) 1/90

C4033 Intention

A person's intention is always relevant when deciding whether an absence is
temporary. But, it is not decisive. It is possible to decide that an absence is not
temporary from the start. But if the decision maker decides that the absence is
temporary then the person's intention should be looked at more closely the longer
the absence lasts (1).

1 R(S) 1/96

C4034

Although a person may intend to return there may be circumstances which prevent
it. However, it cannot be assumed that the absence is not temporary just because
the person cannot return. The circumstance preventing the return may only last a
short time, for example, a short illness.

C4035

If a person is prevented from returning for a substantial period the absence may not
be temporary (1). A person who is permanently prevented from returning to GB is not
temporarily absent from GB (2).
1 R(S) 10/83; 2 R(S) 1/96

C4036 Length of absence

The length of absence is a significant factor in deciding whether an absence is
temporary (1). In general a temporary absence means that it will be for a limited period
only. Only in exceptional cases can an absence which has lasted years rather than
months be accepted as temporary.

1 R(S) 1/96

C4037

The nature of the absence may change the longer the absence from GB lasts.

C4038

When considering the length of the absence the decision maker should consider the
total period of the absence. This includes
1. any period of absence before the decision maker's decision and
2. the intended or likely future period of absence (1).

1 R(S) 1/96

C4039

A person may have been absent from GB several times before the decision maker
considers whether to disqualify. Although each of the absences may have been
temporary, the total period of absences compared to the periods spent in GB may
show that the absence now being considered is not temporary (1).

1 R(I) 54/51; R(I) 73/54

C4040

A person who visits GB regularly, but is residing in another country, may be
temporarily absent from that country rather than temporarily absent from GB (1). This
may apply to a seasonal worker who normally spends only part of the year in GB.

1 R(S) 10/83

C4041

An indefinite absence can still be temporary (1).
1 R(S) 1/96

C4042 Purpose of the absence

The reason for a person's absence from GB is an important factor.

C4043

An absence will probably be temporary if it is
1. for a holiday or
2. to visit relatives or
3. for a course of treatment.

C4044

An absence will probably not be temporary if the reason for the absence is for
example, to live with relatives who have already emigrated.


C4045 The DM's decision

The DM must decide whether an absence is temporary by considering the facts at
the date of decision. In some cases the person will have returned to GB before the
DM's decision. The DM can look with hindsight and take this into account (1).
1 R(S) 1/96; R(S) 10/83; R(S) 1/85

Example

A man receiving ESA goes to South Africa on 21 June but does not tell the DWP. He
returns to GB on 19 December after an absence of six months and informs the local
office that he has been away. The DM decides that the absence is temporary
because he has returned to GB and the absence lasted only six months.

C4046

The DM should not automatically decide that an absence is temporary just because
the person has returned (1). For example, on leaving GB the person may have
intended to live permanently in another country.
1 R(S) 1/85

C4047 Onus of proof

The burden of showing that an absence is temporary is on the claimant (1) who should
prove that
1. the absence is or was temporary and
2. one of the other conditions for avoiding disqualification is satisfied.
1 R(S) 1/96

C4048 Change of circumstances

Although an absence may originally have been considered temporary, it may not
remain so. Whether an absence from GB has ceased to be temporary may be
considered at any time. A temporary absence will cease to be temporary overnight if
a person decides to stay permanently outside GB. Other circumstances which make
the ending of the absence uncertain may also mean that an absence which was
temporary at the outset ceases to be temporary at some later date (1).
1 R(S) 1/85

C4049
Once the DM has decided that an absence is not temporary, that absence should
not be treated as temporary (either from the start of the absence or a later date) just because
1. the claimant states an intention to return or
2. makes preparations to return (1).
1 R(P) 1/90

[C4050-C4054]

C4055 Absences of up to 4 weeks

Claimants will continue to be entitled to ESA for the first four weeks of any absence
from GB if
1. the absence is temporary and
2. the absence is unlikely to exceed 52 weeks and
3. while absent from GB they continue to satisfy the other conditions of
entitlement to ESA (1).
1 ESA Regs 13, reg 89

C4056 Absence to receive medical treatment C4058

A claimant will continue to be entitled to ESA for the first 26 weeks of absence from
GB (1) if
1. the absence is temporary and
2. the absence is unlikely to exceed 52 weeks and
3. while absent,that claimant continues to satisfy the other conditions of
entitlement to ESA and
4. the absence is solely
4.1 in connection with arrangements made for the treatment of the claimant
for a disease or bodily or mental disablement which
4.1.a
is directly related to the claimant's limited capability for work
and
4.1.b
started before the claimant left GB or
4.2
because the claimant is accompanying a "dependent child" (see
paragraph C4058 et seq for the definition of this term) in connection
with arrangements made for the treatment of that dependant child for a
disease or bodily or mental disablement
and

5. The arrangements referred to in subparagraphs 4.1 and 4.2 relate to
treatment which
5.1
is outside GB and
5.2
takes place during a period whilst the claimant is temporarily absent
from GB and
5.3
is by or under the supervision of a person appropriately qualified to
carry out that treatment.
1 ESA Regs 13, reg 90

C4057 Meaning of "appropriately qualified"

"Appropriately qualified" means (1) qualified to provide medical treatment,
physiotherapy or a form of treatment which is similar to, or related to, either of those
forms of treatment.
1 ESA Regs 13, reg 90(2)

C4058 Meaning of "dependent child" C4056

The term "dependent child" as used in paragraph C4056.4.2 above means (1) a child
(C4059) or qualifying young person (C4060) for whom either the claimant or the
claimant's partner is responsible where that child or qualifying young person is a
member of the claimant's household.
1 ESA Regs 13, reg 90(2)

C4059 Meaning of "child"

A child means (1) a person under the age of 16.
1 ESA Regs 13, reg 2

C4060 Meaning of "qualifying young person" C4063

A qualifying young person is (1) a person
1. who has left education or training, is aged 16 years (in Scotland also a 15 year
old), until the 31st August that next follows their 16th birthday (1)
2. aged 16 years or over who is undertaking a course of full-time education at a
school, college or other establishment that is approved by HMRC
Commissioners, which is not advanced education (see C4066) or
3. aged 16 years or over who is undertaking approved training that is not
provided through a contract of employment or
4. having undertaken a course/approved training as in 2. or 3. and has been
accepted or is enrolled on a further such course/approved training (2).
1 ESA Regs 13, reg 2; SS CB Act 92, s 142 & Child Benefit (General) Regulations 2006, reg 4; 2 reg 3(2)

C4061
For the purposes of C4060 2. and 3. above the person
1. if aged 19 years, must have commenced the course of FTE or approved
training before reaching that age (1) and
2. must be less than 20 years of age (2).
1 Child Benefit (General) Regulations 2006, reg 3(4); 2 reg 3(1)
Note: A person shall be treated as undertaking a course of FTE during the period
between the end of one course and the start of another where the person is enrolled
on and starts the latter course.

C4062

Where a person is aged 16 or 17, a qualifying young person is a person
1. who has ceased to be in education or training and
2. who is registered for work, education or training with a qualifying body and
3. who is not engaged in remunerative work and
4. whose extension period has not expired and
5. where the person who is responsible for the 16/17 year old
5.1
was entitled to CHB for them immediately before the extension period
began (1) and
5.2
has made a written request to the HMRC Commissioners within 3
months of the education or training ceasing for the payment of CHB
during the extension period.
Note: The extension period begins on the first day of the benefit week after that in
which the 16/17 year old ceased to be in education or training and ends 20 weeks
later.

1 Child Benefit (General) Regulations 2006, reg 5(4)

C4063 C4064

A qualifying young person can be up to, and including, the age of 19 where that
person's education or training has been relevantly interrupted. If immediately before
the interruption they were a qualifying young person under the conditions in C4060 to
C4061, they will remain a qualifying young person for the duration of the interruption.

C4064

Subject to an exception, the condition in C4063 will only apply where the period of
interruption is
1. one of up to six months duration, even if it began before the person was 16,
but only to the extent that it is considered to be reasonable in the opinion of
the HMRC Commissioners and
2. due to mental or physical illness or disability and for a period that is
considered reasonable in the opinion of the HMRC Commissioners (1).
Note: The exception is where the period of interruption is, or is likely to be, followed
immediately by a period during which the person is undertaking non approved

training, receiving advanced education or receiving education by virtue of his
employment or any office held by him (2).
1 Child Benefit (General) Regulations 2006 reg 6(3); 2 reg 6(4)

C4065 Full-time education

Full-time (1) education must involve education undertaken in pursuit of a course where,
1. the young person spends on average more than twelve hours a week during
term time in
1.1 receiving instruction and tuition
1.2 doing supervised study
1.3 doing examinations or practical work
1.4
taking part in any exercise, experiment or project which is part of the
course and
this must not include meal breaks or unsupervised study, including homework,
whether done on or off the premises of the educational establishment.
1 Child Benefit (General) Regulations 2006 reg 1(3)

C4066 Non-advanced education C4060

Non-advanced education means any course up to, and including, the standard of
1. ordinary national diploma
2. BTEC national diploma
3. national certificate of the Scottish Qualifications Authority
4. GCE (advanced level)
5. Scottish certificate of education (higher grade)
6. Scottish certificate of sixth year studies
7. National certificate of Edexcel.

C4067 Meaning of "household"

Household is not defined in legislation. It should be given its normal everyday
meaning; that is a domestic establishment containing the essentials of home life (1).
Household may refer to people held together by a particular kind of tie, even if
temporarily separated (2). People living in one dwelling (for example a house, flat,
caravan) do not necessarily live together in the same household.

1 R(SB)4/83; 2 Santos v Santos [1972] All ER 246


C4068 Meaning of "partner"

"partner"
means (1) where a claimant
1. is a member of a couple, the other member of that couple;
2. is a husband or wife by virtue of a polygamous marriage, the other party to the
marriage or any spouse additional to either party to the marriage
1 ESA Regs 13, reg 2

C4069 Meaning of "couple"

"couple"
means (1)
1. a man and woman who are married to each other and are members of the
same household;
2. a man and woman who are not married to each other but are living together
as husband and wife;
3. two people of the same sex who are civil partners of each other and are
members of the same household; or
4. two people of the same sex who are not civil partners of each other but are
living together as if they were civil partners,
and for the purposes of subparagraph 4., two people of the same sex are to be
regarded as living together as if they were civil partners if, but only if, they would be
regarded as living together as husband and wife were they instead two people of the
opposite sex.
1 ESA Regs 13, reg 2

[C4070-C4074]

C4075 Absence in order to receive NHS treatment

A claimant will continue to be entitled to ESA during any period of absence from GB (1) if
1. the absence is temporary and
2. the claimant continues to satisfy the other conditions of entitlement and
3. the absence is for the claimant to receive treatment at a hospital or similar
institution outside GB but provided
3.1 under section 6(2) and pursuant to arrangements under section 12(1)
and paragraph 18 of Schedule 4 of the NHS Act 2006 or
3.2 under section 6(2) and pursuant to arrangements under section 10(1)
and paragraph 18 of Schedule 3 of the NHS (Wales) Act 2006 or
3.3 any equivalent provision in Scotland.
1 ESA Regs 2013, reg 91

C4076 Family Member of a Member of the Armed Forces C4077

A claimant will continue to be entitled to ESA for any period of absence from GB (1) if
1. the absence is temporary and
2. the claimant is a member of the family of a member of Her Majesty's Forces
and
3. the absence is because the claimant is living with that member of the forces

1 ESA Regs 13, reg 92

C4077

Member of the family (1) in paragraph C4076.2 means the spouse, civil partner, son,
daughter, step-son, step-daughter, father, father-in-law, step-father, mother, mother-
in-law and step-mother. References to "step-parent and step-children and in-laws"
are to be read as including such relationships arising through civil partnerships.
1 ESA Regs 13, reg 92(2)

C4078 Meaning of "member of Her Majesty's Forces"

A person is within the definition of "Member of Her Majesty's Forces" if (1) they are
1. over 16 years of age and
2. a member of one of the following establishments or organisations (2) who gives
full pay service and who is not absent on desertion
2.1 Any of the regular naval, military or air forces of the Crown.
2.2 Royal Fleet Reserve.
2.2 Royal Navy Reserve.
2.3 Royal Marines Reserve.
2.4 Army Reserve.
2.5 Territorial Army.
2.6 Royal Air Force Reserve.
2.7 Royal Auxiliary Air Force.
2.8 The Royal Irish Regiment, to the extent that its members are not
members of any force falling within subparagraph 2.1
and
3. Not an excluded person listed in paragraph C4079 below.

1 ESA Regs 13, reg 2; 2 Sch 1 Part I

C4079 C4078 C4088

A person is excluded from the definition of a "member of Her Majesty's Forces" if
they are a person (1)

1. who is serving as a member of any naval force of Her Majesty's forces and
who (not having been an insured person under specific legislation) locally
entered that force at an overseas base or
2. who is serving as a member of any military force of Her Majesty's forces and
who entered that force, or was recruited for that force outside the United
Kingdom, and the depot of whose unit is situated outside the United Kingdom
or
3. who is serving as a member of any air force of Her Majesty's forces and who
entered that force, or was recruited for that force, outside the United
Kingdom,and is liable under the terms of engagement to serve only in a
specified part of the world outside the United Kingdom.
1 ESA Regs 13, Sch 1 Part 2

[C4080-C4084]

C4085 ESA In Youth - Residence and Presence Conditions

With effect from 1.5.12 no further claims for ESA (Cont) could be made under the
youth conditions. However some claimants who were entitled to ESA on the basis of
satisfying the youth conditions prior to that date will continue to be entitled to ESA
after 6.4.13
Note 1: At present (June 2013) no old style ESA(Y) claimants are subject to the ESA
Regs 2013. At some stage however they may move to being subject to those regs
and become entitled to new style ESA. The guidance below relating to ESA in Youth
will therefore only apply when that move occurs.
Note These residence and presence conditions are modified in cases where EU law
applies (see C4100 et seq)

C4086 C4087 C4088

In order to continue to satisfy the youth provisions (1), a claimant must satisfy
prescribed conditions of residence and presence in GB. Claimants must
1. be ordinarily resident in GB (2) and
2. either
2.1
not be subject to immigration control (3) or
2.2. be a person to whom paragraph C4087 applies
and
3. be present in GB (4) and
4. have been present in GB for a period of (or periods totalling) not less than 26
weeks in the previous 52 weeks immediately preceding the relevant benefit

week 5 (which will normally be the first benefit week of entitlement following
the date of claim).
1 WR Act 07 Sch 1 para 4(1)(c); 2 ESA Regs 13, reg 12 (1)(a); 3 reg 12 (1)(b) & reg 12(3); 4 reg 12(1)(c);
5 reg 12(1)(d)

C4087 C4086

A person satisfies the condition in paragraph C4086 2.2 if they are (1)
1. a member of the family of a national of an EU or EEA country
2. a person who is legally working and living in GB and is a national of a State
with which the EU has made an agreement relating to equal treatment and
any member of their family living with them
3. a sponsored immigrant regardless of the length of stay in the UK.
1 ESA Regs 13 , reg 12(3)
Note: the countries mentioned in 2. above are Turkey, Morocco, Algeria, Tunisia
and Switzerland.

C4088

Where a claimant whose entitlement is under the youth conditions satisfies the
conditions in paragraph C4086.1 to 4 on the first day of a period of limited capability
for work is treated as satisfying those conditions throughout that period of limited
capability for work.
Note: this means that the specific residence and presence conditions that
apply to ESA(Y) will be satisfied throughout the period of limited capability for
work but an ESA(Y) claimant still has to satisfy the basic condition for entitlement
to ESA which is that (subject to the allowable temporary absences) they be "in GB"
(see C4005 to C4079). Remember also that the requirement to be "in GB" can be
modified where EU exportability rules apply (See C4100 et seq).

C4089

Claimants whose entitlement to ESA is under the youth provisions who are absent
from GB on any day should, for the purposes of the residence and presence tests,
be treated as resident or present in GB if on that day they are
1. in prescribed employment on the continental shelf (1) or
2. aircraft workers or mariners (2) or
3.
living with a serving member of the armed forces (3) (who is abroad in that
capacity) and are that person's spouse or civil partner, son, daughter, father,
father-in-law, mother or mother in law (4).
Note: References to `in-laws' are to be read as including relationships arising
through civil partnerships.
1 ESA Regs 13 , reg 12(2)(b) ; 2 reg 12(2)(c); 3 reg 2 & Sch 1; 4 reg 12(2)(a)


Continental Shelf Operations - Prescribed employment

C4090

"Prescribed employment" means (1) any employment, whether or not under a contract
of service, in any designated or prescribed area in connection with any activity
mentioned is specific legislation.

1 SS Ben (PA) Regs, reg 11(1)

C4091

Designated area means any area set out by Order in Council under the Continental
Shelf Act 1964 as an area where the UK may explore the seabed, subsoil and
exploit their natural resources (1).

1 SS Ben (PA) Regs, reg 11(1)

C4092

Prescribed area means (1) any area over which Norway or any EC 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 EC country (except the UK).
1 SS Ben (PA) Regs, reg 11(1)

C4093 Meaning of "aircraft worker"

An "aircraft worker" means (1) a person who is or has been 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 ESA Regs 2012, reg 12(5)

C4094 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 ESA Regs 2012, reg 12(5)

C4095

- C4099
The effect of EU law

C4100 Introduction C4006 C4085 C4088

There are two main kinds of EU legislation: regulations and directives. EU
regulations apply directly and are part of UK law.

C4101

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 C4106 to C4108 below concerning third country
nationals.

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

C4102

EU provisions do not create a harmonized social security system common to all EEA
countries. EU provisions coordinate the national social security systems of

EU countries so that a migrants 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.

C4103

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

C4104 Transitional Provisions

The
old (1) EC Social Security co-ordination rules were replaced by new (2) rules with
effect from 1.5.10. However the old rules continue to apply to

2. Third country nationals (e.g. persons with indefinite leave to remain who are
not themselves EEA nationals.). This is because the UK did not opt in to an
EU Council Regulation which extended 883 to this group of people (3).
3.
persons with certain rights acquired under the old rules.

1 Reg (EEC) 1408/71; 2 Reg (EC) 883/04; 3 Regulation (EU) 1231/10, Recital 18 & Art 2

C4105

There may be cases where, as a result of the new regulation (1), a person receiving
benefit as at 1.5.10 would be subject to the legislation of a different Member State to
that determined under Reg (EEC) 1408/71. In such circumstances, the legislation
determined under Reg (EEC) 1408/71 shall continue to apply for up to ten years,
provided the relevant situation remains unchanged (2). However, the person concerned
may request that he be subject to the legislation of the Member State applicable
under Reg (EC) 883/04. If such a request is submitted to the competent state under
the new Regulation within three months of 1.5.10, they will assume competency from
1.5.10. If the request is made after that time limit, the change of applicable
legislation will take place on the first day of the following month.
1 Reg (EC) 883/04; 2 Reg (EC) 883/04, Art 87(8)

C4106 Third country nationals C4101

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.

C4107

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

C4108 C4101

Therefore a TCN who has worked will be able to export an award of ESA 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.
C4109 - C4114

C4115 Personal Scope C4201

In order to establish whether the EU co-ordination regs apply, DMs first need to
establish whether the claimant is within their personal scope.

C4116 C4118

A person is within the personal scope of the EU co-ordination regs if that person (1)
1. is
1.1
a national of a Member State, or
1.2
a stateless person or refugee residing in a Member State
who is or has been subject to the legislation of one or more Member 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)

C4117

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

C4118 Meaning of "member of the family" C4130 C4201

"Member of the family" as used in C4116.2 means (1)
1.
the spouse (or civil partner) and
2. children under 18 and
3. children over 18 who are dependant.
1 Reg (EC) 883/04, Art 1(i)

C4119 What type of benefit is ESA?

The EU co-ordination regulations apply different rules depending upon the
classification of the benefit concerned. ESA during the assessment phase is a
"sickness benefit". After the assessment phase it is an "invalidity benefit".

C4120 Deciding which EEA State's legislation applies C4121

The EU Social Security Co-ordination regulations contain rules intended to avoid a
conflict between the domestic laws of the Member States. The basic rules are
1. a person pursuing activity as an employed or self-employed person in a
Member State is subject to the legislation of that Member State.
2. a civil servant is subject to the legislation of the Member 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 Member State of residence is
subject to the legislation of that Member State.
4.
a person called up or recalled for military or civilian service by a Member
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 Member State of residence.
Note: C4120.5 is subject to other rules in the EC co-ordination regs which
guarantee benefits under the legislations of one or more Member States.

1 Reg (EC) 883/04, Art 11(3); 2 Art 65

C4121

Except in relation to the benefits listed at C4122, for the purposes of C4120.1, 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)

[C4122]

C4121does 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)

C4123

The EU Rules concerning "sickness benefits"

C4124 Contribution conditions - EU provisions

Provided the UK is the competent state for the payment of sickness benefits, periods
of insurance (whether they are made up through employment, self-employment,

payment of contributions or residence) completed under the legislation of another
EEA country may be used to help satisfy the contribution conditions for ESA (1) if the
claimant is
1. within the personal scope of the EU social security co-ordination regs and
2. the UK's legislation applies and
3. not entitled by using the UK contribution record alone.

1 Reg (EC) 883/04, Art 6

C4125

The Secretary of State decides whether the contribution conditions are satisfied,
including any related questions (1). The decision maker decides
1. the date of claim and
2. other related questions (2).
1 SS Act 98, s 10A; Scrivner v CAO [1990] 1 CMLR 637;
S of S v Scully [1992] 4 ALL ER 1; 2 SS (C&P) Regs

C4126 Incapable of work in another European Economic Area country

A person's incapacity for work must be decided in accordance with UK criteria (1). A
person who claims ESA in another EEA country must either
1. provide a certificate of incapacity for work issued by the doctor who
established their state of health (2) or
2. if doctors in that country do not provide certificates,notify the appropriate
social security institution of that country which will immediately arrange for a
medical assessment of the person's incapacity and for a certificate of
incapacity to be drawn up (3). .
Any further medical examinations will be undertaken as if the claimant were insured
in that country.
1 R(S) 3/82; R(S) 13/83; Case 150/82, Coppolla v Insurance Officer;

2 Reg (EC) 987/09, Art 27; 3 Art 27(3)

C4127

At the request of the DWP, the relevant social security institution of the EEA country
will carry out any medical examinations required under ESA legislation and the
report of the examining doctor (which will state the probable duration of the
incapacity for work) will be forwarded without delay to the DWP (1).
1 Reg (EC) 987/09, Art 27(5)


C4128 Deciding the competent state for the payment of ESA during the assessment phase

There are two main rules for deciding which state is competent for the payment of
cash "sickness benefits" depending upon whether the claimant is an "insured
person" or a person receiving a pension.

C4129 Insured persons

In relation to sickness benefits, means (1) any person who satisfies the conditions of
entitlement for a UK sickness benefit. In practice this means a person who satisfies
the contribution conditions for ESA, provided they have not been lastly 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.
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.

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

C4130

An "insured person" (and members of that person's family - see C4118) who is
residing or staying in a Member State (A) other than the Member State (B) in which
they are insured, is entitled to sickness benefits in cash from Member State B1.
1 Reg (EC) 883/04, Art 21

[C4131-C4134]

C4135 Pensioners

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
Member State responsible for the cost of sickness benefits in kind (1).

1 Reg (EC) 883/04, Art 29

C4136

In receipt of apension 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. 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
3.
a pension for Industrial Injuries Disablement Benefit (including REA and RA).

C4137 Note C4142 C4143

: This definition of "pension" derives from the EU co-ordination regulations

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 a Member 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)

C4138 Deciding which state is responsible for sickness benefits for a pensioner

Where a person who receives a pension or pensions under the legislation of one or
more Member States, one of which is the Member State of residence and the person
is entitled to sickness benefits in kind under the legislation of the Member State of
residence, then that State will pay sickness benefits (in cash and in kind)1.
1 Reg (EC) 883/04, art 23
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.
C4139
Where a person receives a pension or pensions under the legislation of one or more
Member States but there is no entitlement to benefits in kind under the legislation of
the Member State of residence, sickness benefits in cash and in kind will be
provided by one of the Member States responsible for the pension(s) determined as
follows (1)
1. where the person is entitled to benefits in kind under the legislation of only
one Member State then that Member 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 Member States then the Member State where the person was insured
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

C4140

Where a person receives a pension under the legislation of one or more Member
States (other than the Member State of residence) resides in a Member 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 rule in C4139 will apply (1).
1 Reg (EC) 883/04, Art 25

C4141 Visits to the United Kingdom

A person who is entitled to ESA whilst in another EEA country remains entitled if
1. habitually resident (1) in or
2. temporarily staying in (2) or visiting the
UK.
1 Reg (EC) 883/04 Art 18

Example

A man is living in Germany and entitled to ESA. Although he remains resident in
Germany he visits GB for a short period. He remains entitled to ESA during his
temporary visit. He would also remain entitled to ESA if he decided to live in GB
permanently.

C4142 Staying in another European Economic Area country

A person can receive ESA during the assessment phase (1) and benefits in kind (see C4137) if
1. temporarily staying2 in another EEA country and
2. that person would, but for the disqualification for being absent from GB, be
entitled to assessment phase ESA.
1 Reg (EC) 883/04, Art 21; 2 Art 1(k)

C4143 Transfer or return to another European Economic Area country

A person can continue to be entitled to Assessment Phase ESA, and benefits in
kind (1) (see C4137) if that person would, but for the disqualification for being absent
from GB be entitled to Assessment Phase ESA.
1 Reg (EC) 883/04, Art 21

[C4144-C4149]


The EU rules concerning "invalidity benefits"

C4150 Introduction

Entitlement to and the rate of Main Phase ESA under EU provisions depends on the
legislation to which the claimant has been subject (1). There are two types of
legislation, Type A and Type B.

1 Reg (EC) 883/04, art 44(1)

C4151

Type
A1 are those where the rate of invalidity benefit does not depend on the length
of insurance. Type B2 are those where the rate of invalidity benefit depends on the
length of insurance. Main Phase ESA is a Type A invalidity benefit.

1 Reg (EC) 883/04, art 44; 2 art 44(1)

C4152

Guidance on entitlement to "invalidity benefit" where a person has been subject only
to Type A legislation is at C4155 et seq. Guidance on entitlement to invalidity benefit
where a person has been subject to Type B legislation is at C4165 et seq.

C4153 Countries with Type A invalidity benefit C4154 C4154

Type A legislations (1) are
1. Czech
Republic
Full disability pension for persons whose total disability arose before reach
age 18 and who were not insured for the required period
2. Estonia
Invalidity pensions granted before 1.4.00 under the State Allowances Act and
which are retained under the State Pension Insurance Act
National pensions granted on the basis of invalidity according to the State
Pension Insurance Act
Invalidity pensions granted according to the Defence Forces Service Act,
Police Service Act, Prosecutor's Office Act, Status of Judges Act, Members of
the Riigikogu Salaries, Pensions and Other Social Guarantees Act and
President of the Republic Official Benefits Act.
3. Finland

National pensions paid to persons who are born disabled or become disabled
at an early age.
4. Greece

Legislation relating to the agricultural insurance scheme.
5. Ireland

Part 2, Chapter 17 of the Social Welfare (Consolidation) Act 2005.

6. Sweden
Income- related sickness benefit and activity compensation
7. United Kingdom

Invalidity benefit, IB(Y), long term Incapacity Benefit, ESA (C) after the
assessment phase and Severe Disablement Allowance (2).
1 Reg (EC) 883/04, Art 44(1) & Annex VI; 2 SS CB Act 92, sec 30A(5),
40, 41& 68; SS CB (N. Ireland) Act 92, sec 30A(5), 40, 41 &, 68; SS Pens
(N. Ireland) Order 75, Art 16-1

C4154 Countries with Type B legislation

The countries with Type B legislation are (1)
1. Austria
2. Denmark

Finland (except for the pensions mentioned in C4153.3)
France
Germany

Greece (except for the pensions mentioned in C4153.4)
Iceland
Italy
Liechtenstein
Luxembourg
Norway
Portugal
Sweden.
Switzerland
1 Reg (EC) 883/04, Art 44(1)

C4155 Subject only to Type A Legislation C4152 C4156

A person who has been subject to the legislation of two or more EEA States and has
completed periods of insurance or residence onlyunder Type A legislation is entitled
to invalidity benefits only from the EEA State whose legislation was applicable when
the incapacity for work (followed by invalidity) first began. In the guidance that
follows, that EEA State is described as "the relevant country".
1 Reg (EC) 883/04, Art 44(2); Art 44(3)

C4156 Entitlement to invalidity benefit in only one country

If the relevant country (see paragraph C4155) decides that there is entitlement to
Type A invalidity benefit, there is no entitlement to invalidity benefit under the
legislation of any other EEA country (1).
1 Reg (EC) 883/04, Art 44(2)

C4157 Not entitled in relevant country

A person may be entitled to invalidity benefit under the Type A legislation of an EEA
country, other than the one whose legislation applied at the date the incapacity which
led to the invalidity began if
1. they have been subject to the country's legislation and
2. they are not entitled to invalidity benefit under the relevant country's
legislation (1).
1 Reg (EC) 883/04, Art 44(3)

[C4158-C4164]

C4165 Subject to both Type A and Type B legislation C4152

Where a person has been subject to both Type A and Type B legislations the rules
in paragraph C4166 to C4168 will apply (1). However if (2) such a person has previously
been subject to Type B legislation and then suffers incapacity for work leading to
invalidity while subject to Type A legislation, then invalidity benefits will be paid by the
Type A legislation state provided that
1. they satisfy the conditions of entitlement for invalidity benefits that apply in the
Type A state and
2. they do not assert any claims to old age benefits.
1 Reg (EC) 883/04, art 46(1); 2 art 46 (2)

C4166 Subject to Type B legislation - The Main Rule C4165 C4182

Where a person has been subject to a Type B legislation, the DM will have to
calculate the amount of main phase ESA payable by the UK which will be the higher
of the result of applying the two methods of calculation set out below.

C4167 Method 1

Main Phase ESA will be paid at the UK rate if (1)
1. the person is entitled to Main Phase ESA without relying on insurance in any
other EEA country and

2. periods of sickness benefit, wages or salary paid in place of sickness benefit,
or invalidity benefit in another EEA country have not been taken into account
and
3. contributions paid in another EEA country have not been used in deciding
entitlement to Main Phase ESA.
1 Reg (EC) 883/04,Art 46(2);

C4168 Method 2 - pro rata C4165 C4170 C4175 C4176 C4182

The rate Main Phase ESA is calculated in three stages
1. Stage 1 - Addition

Add together all the periods of insurance for invalidity benefits whether made
up of paid contributions, employment, self employment or residence before
the start of incapacity in all the EEA countries where the claimant has been
insured and treat them as periods of insurance completed in the UK (1).
2. Stage 2 - Theoretical rate of Main Phase ESA
Determine the
theoretical amount of Main Phase ESA which would be
payable if all the insurance added together in Stage 1 had been paid in the
UK (2).

Note This theoretical rate will always be 100% and therefore no calculation is
needed .
3. Stage 3 - Actual rate of pro-rata Main Phase ESA

Apply to the theoretical amount, the ratio of the period of insurance under UK
legislation to the total period of insurance prior to the date the claimant first
became incapable of work through sickness (3)
1 Reg (EC) 883/04, Art 51; 2 Art 52 (1)(b)(i) ; 3 Case 793/79, Menzies Reg (EC) 883/04, Art 52(1)(b) (ii);
4 Reg (EEC) 1408/71, Art 46(2)(b)
Note Some periods of insurance are excluded (see paragraphs IE (11)0 and IE
111)
Example

A person claims ESA but is not entitled using UK insurance only. Before
becoming incapable of work a person was insured in the UK for 52
weeks and was insured in Italy for 208 weeks. The total insurance is 260
weeks.

The claimant is under pension age, therefore the theoretical rate of UK ESA
Main Phase is 99.85 (the standard main phase rate of 67.50, plus, in this
example, the support component of 32.35)

The
actual rate of pro rata Main Phase ESA is 19.97. That is 1/5 of 99.85.

C4169 Date from which pro-rata invalidity benefit is payable

The CJEU has held (1) that pro-rata main phase ESA must be paid by the UK from the
first day of entitlement to another Member State's Type B invalidity benefit even if
this is before the end of the assessment phase.
1 Leyman v Institut National d'Assurance Maladie-Invalidite (INAMI) Case C-3/08

C4170 Uprating of pro-rata main phase ESA

The pro-rata fraction is not recalculated when the rates of benefit are increased due
to normal uprating (1). The amount of uprated benefit is calculated by applying the pro
rata fraction to the uprated full ESA rate.
1 Reg (EC) 883/04, art 59(2)
Example
On becoming entitled to UK main phase ESA, the pro rata fraction was calculated to
be 52/260 (see paragraph C4168). This meant that the actual rate of main phase
ESA was 19.87. At the next general uprating of benefit rates, the rate of main
phase ESA (including the care component) was increased from 99.85 to 105.05.
The pro rata fraction remains the same but the actual rate being paid increases from
19.97 to 21.01.
The new calculation of the actual rate of main phase ESA is
52 (UK insurance)
--------------------------
x 105.05 = 21.01
260 (total insurance)

[C4171-C4174]

Pro rata calculation - exceptions to the normal rules

C4175 Not entitled to invalidity benefit in all European Economic Area countries

There may be occasions where a person has been subject to the legislation of a
number of EEA states but where they do not satisfy (or no longer satisfy) the national
conditions of entitlement for invalidity benefits under the legislation of one or more of
these states. Where this is the case, in making any calculation under the main rule,
periods of insurance in the EEA State(s) which do not satisfy the conditions of
entitlement are not to be included (1).
1 Reg (EC) 883/04, Art 50(2)

Example
In the two relevant income tax years immediately before the relevant benefit year,
George has resided and paid insurance in the UK (10 weeks), Germany (40 weeks);
Greece (50 weeks) and (Italy 5 weeks). However it has been established that
George does not satisfy the conditions of entitlement for the Italian "invalidity
benefit". In calculating the pro rata amount of ESA in accordance with stage 3 in
paragraph C4168 above the DM did not include the periods of insurance in Italy.

C4176 Insured in one country for less than one year C4177

Subject to C4177, in completing stage 1 (adding together all the periods of
insurance) and stage 3 (making the pro-rata calculation) of paragraph C4168,
periods of insurance (or residence) completed under the legislation of another EEA
state are not to be taken into account where (1)
1. the period is less than one year and
2. applied on its own the period does not produce a right to an invalidity benefit
under the legislation of that EEA state.

1 Reg (EC) 883/04, Art 5791)

C4177 C4176

However, if the effect of applying paragraph C4176 would be to relieve all of the EEA
sates where the person was insured (or resided) of their obligation to pay invalidity
benefits, benefits will be provided exclusively under the legislation of the EEA state
where the person was last insured as if all the periods of insurance (or where
appropriate residence) had been completed under that EEA state's legislation (1).
1 Reg (EC) 883/04, Art 57(3)

C4178

-C4179
Entitled to an old age pension in another European Economic Area country

C4180 Introduction

Because EEA countries have different ages for entitlement to old age benefits a
person may become entitled to an old age benefit in one EEA country before
reaching the minimum age for entitlement in another EEA country where insurance
has been paid.

C4181 Person subject only to Type A legislation C4182

A person who has been successively or alternately subject to the legislation of two or
more EEA States and who has completed periods of insurance or residence

exclusively under type A legislation is entitled only to the benefits from the EEA State
whose legislation was applicable when the incapacity for work leading to the
invalidity began (1).

1 Reg (EC) 883/04, Art 44

C4182

If (1) the claimant has completed periods of insurance under UK legislation and
1. the claimant is entitled to invalidity benefits from another EEA State in
accordance with paragraph C4181 and
2. those invalidity benefits are converted to old age benefits and
3. the claimant is not yet entitled to old age benefits under UK legislation
the UK will need to calculate and pay invalidity benefits until the claimant attains UK
pension age. The rate payable will be a pro rata calculated in accordance with
paragraphs C4166 to C4168.
1 Reg (EC) 883/04, art 48(3)

C4183 Rate of pro-rata main phase ESA

All the insurance up to the date the person became incapable of work should be
included in the pro rata calculation.

[C4184-C4189]

Effect of EU Law - ESA under the youth conditions

C4190 Introduction

With effect from 1.5.12 no further claims for ESA (Cont) could be made under the
youth conditions. However some claimants who were entitled to ESA on the basis of
satisfying the youth conditions prior to that date will continue to be entitled to ESA
after 6.4.13.
C4191 In a judgment (1) dated 21.7.11, the Court of Justice of the European Union dealt with a

case of a British national (LS) who was severely disabled. She moved with her

parents to Spain in 2000. DLA has been paid to her for a period starting in April 1992

and continued to be paid to her in Spain in accordance with the EU coordination rules.

In 2005, the claimant's mother claimed IB(Y) on her behalf. The claim was refused by

a DM on the grounds that the claimant did not satisfy the condition that she be present

in GB. The DM's decision was confirmed by a FtT. The mother then appealed to the

UT, which referred various questions to the CJEU.
1 Case C-503/09 LS v Secretary of State for Work and Pensions

C4192 The CJEU held that
1. as IB (Y) was payable at short term and long term rates but, decided that it
was a benefit payable in respect of a permanent or long-term disability and
thus had the character of an invalidity rather than a sickness benefit.
2. as IB(Y) was an invalidity benefit , where a claimant came within the scope of
the EU regulations concerning the co-ordination of social security, those
regulations precluded the application of a requirement that the claimant be
ordinarily resident in the UK.
3. The
Treaty (1) precludes a Member State from making the award of such a
benefit subject to a condition of past presence of the claimant in that State to
the exclusion of any other element enabling the existence of a genuine link
between the claimant and that Member State's social security system to be
established.

1 TFEU Art 21

C4193

The CJEU then went on to list the factors that applied in LS's case and to hold that ,
taken together, these demonstrated that she had a genuine and sufficient link to the
UK's social security system.

C4194

In view of the similarities between ESA under the youth conditions and IB(Y) the
CJEU's judgment applies to ESA(Y).

[C4195-C4199]

C4200 Effect of the judgment on ESA (Y)

As no new claims can be made for ESA under the youth conditions, the judgment
will affect only situations where a claimant who is entitled to ESA(Y) moves to reside
permanently in another EEA state and seeks to continue to receive the benefit
abroad.

C4201

The DM will first of all need to decide whether the claimant is within the personal
scope of the EU co-ordination regs (see paragraph C4115 to C4118). The DM will
then need to decide whether the claimant has a genuine and sufficient link to the
UK's social security system.

C4202 Meaning of "Genuine and Sufficient Link"

The phrase is not defined, but the LS judgment (1) 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. 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.

1 Case C-503/09 LS v Secretary of State for Work and Pensions; 2 SS Act 98, s 27

C4203

If the DM decides that the claimant does not have a genuine and sufficient link to
the UK's social security system, the DM can decide that there is no entitlement while
the claimant resides in another EEA state.

C4204

If however there is a genuine and sufficient link the DM will need to go on to consider
the EU rules about the payment of invalidity benefits set out in paragraph IE 100 et
seq.