Council Regulation (EC) No 1408/71 (repealed)Dangos y teitl llawn

[F1 AA. UNITED KINGDOM] U.K.

1.

When a person who is normally resident in Gibraltar, or who has been required, since he last arrived in Gibraltar, to pay contributions under the legislation of Gibraltar as an employed person, applies, as a result of incapacity to work, maternity or unemployment, for exemption from the payment of contributions over a certain period, and asks for contributions for that period to be credited to him, any period during which that person has been working in the territory of a Member State other than the United Kingdom shall, for the purposes of his application, be regarded as a period during which he has been employed in Gibraltar and for which he has paid contributions as an employed person in accordance with the legislation of Gibraltar.

2.

Where, in accordance with United Kingdom legislation, a person may be entitled to a retirement pension if:

(a)

the contributions of a former spouse are taken into account as if they were that person's own contributions,

or

(b)

the relevant contribution conditions are satisfied by that person's spouse or former spouse,

then provided, in each case, that the spouse or former spouse is or was an employed or self-employed person who had been subject to the legislation of two or more Member States, the provisions of Chapter 3 of Title III of the Regulation shall apply in order to determine entitlement under United Kingdom legislation. In this case, references in the said Chapter 3 to ‘periods of insurance’ shall be construed as references to periods of insurance completed by:

(i)

[F2 a spouse or former spouse where a claim is made by:

• a married woman, or

• a person whose marriage has terminated otherwise than by the death of the spouse,

or

(ii)

a former spouse, where a claim is made by:

• a widower who immediately before pensionable age is not entitled to widowed parent's allowance, or

• a widow who immediately before pensionable age is not entitled to widowed mother's allowance, widowed parent's allowance or widow's pension, or who is only entitled to an age-related widow's pension calculated pursuant to Article 46(2) of the Regulation, and for this purpose ‘ age-related widow's pension ’ means a widow's pension payable at a reduced rate in accordance with section 39(4) of the Social Security Contributions and Benefits Act 1992.]

3.

(a)

If unemployed benefit provided under United Kingdom legislation is paid to a person pursuant to Article 71 (1) (a) (ii) or (b) (ii) of the Regulation, then for the purpose of satisfying the conditions imposed by United Kingdom legislation in relation to child benefit concerning a period of presence within Great Britain or, as the case may be, Northern Ireland, periods of insurance, employment or self-employment completed by that person under the legislation of another Member State shall be regarded as periods of presence in Great Britain or, as the case may be, Northern Ireland.

(b)

If, pursuant to Title II of the Regulation, excluding Article 13 (2) (f), United Kingdom legislation is applicable in respect of an employment or self-employed person who does not satisfy the condition imposed by United Kingdom legislation in relation to child benefit concerning:

(i)

presence within Great Britain or, as the case may be, Northern Ireland, he shall be regarded, for the purpose of satisfying such condition, as being so present;

(ii)

a period of presence within Great Britain, or, as the case may be, Northern Ireland, periods of insurance, employment or self-employment completed by the said worker under the legislation of another Member State shall, for the purpose of satisfying such conditions, be regarded as periods of presence in Great Britain or, as the case may be, Northern Ireland.

(c)

In respect of claims to family allowances under the legislation of Gibraltar the foregoing provisions of subparagraphs (a) and (b) shall apply by analogy.

4.

The widow's payment provided under United Kingdom legislation shall be treated, for the purposes of Chapter 3 of the Regulation, as a survivor's pension.

5.

For the purposes of applying Article 10a (2) to the provisions governing entitlement to attendance allowance, invalid care allowance and disability living allowance, a period of employment, self-employment or residence completed in the territory of a Member State other than the United Kingdom shall be taken into account insofar as is necessary to satisfy conditions as to presence in the United Kingdom, prior to the day on which entitlement to the benefit in question first arises.

6.

In the event of an employed person subject to United Kingdom legislation being the victim of an accident after leaving the territory of one Member State while travelling, in the course of this employment, to the territory of another Member State, but before arriving there, his entitlement to benefits in respect of that accident shall be established:

(a)

as if the accident had occurred within the territory of the United Kingdom,

and

(b)

for the purpose of determining whether he was an employed earner under the legislation of Great Britain or the legislation of Northern Ireland or an employed person under the legislation of Gibraltar, by disregarding his absence from those territories.

7.

The Regulation does not apply to those provisions of United Kingdom legislation which are intended to bring into force any social security agreement concluded between the United Kingdom and a third State.

8.

For the purposes of Chapter 3 of Title III of the Regulation no account shall be taken of graduated contributions paid by the insured person under United Kingdom legislation or of graduated retirement benefits payable under that legislation. The amount of the graduated benefits shall be added to the amount of the benefit due under the United Kingdom legislation as determined in accordance with the said chapter. The total of these two amounts shall constitute the benefit actually due to the person concerned.

9.

. . . . . .

10.

For the purpose of applying the Non-Contributory Social Insurance Benefit and Unemployment Insurance Ordinance (Gibraltar), any person to whom this Regulation is applicable shall be deemed to be ordinarily resident in Gibraltar if he resides in a Member State.

11.

[F3 For the purpose of Articles 27, 28, 28a, 29, 30 and 31 of this Regulation, benefits payable outside the United Kingdom solely because of Article 95b (8) of the Regulation shall be considered as invalidity benefits.]

12.

For the purpose of Article 10 (1) of the Regulation any beneficiary under United Kingdom legislation who is staying in the territory of another Member State shall, during that stay, be considered as if he resided in the territory of that other Member State.

13.1..

For the purpose of calculating an earnings factor with a view to determining the right to benefits under United Kingdom legislation, subject to point 15, each week during which an employed or self-employed person has been subject to the legislation of another Member State and which commenced during the relevant income tax year within the meaning of United Kingdom, legislation shall be taken into account in the following way:

(a)

Periods between 6 April 1975 and 5 April 1987:

(i)

for each week of insurance, employment or residence as an employed person, the person concerned shall be deemed to have paid contributions as an employed earner on the basis of earnings equivalent to two-thirds of that year's upper earnings limit;

(ii)

for each week of insurance, self-employment or residence as a self-employed person the person concerned shall be deemed to have paid class 2 contributions as a self-employed earner.

(b)

Periods from 6 April 1987 onwards:

(i)

for each week of insurance, employment or residence as an employed person, the person concerned shall be deemed to have received, and paid contributions as an employed earner, for, weekly earnings equivalent to two-thirds of that week's upper earnings limit;

(ii)

for each week of insurance, self-employment or residence as a self-employed person the person concerned shall be deemed to have paid class 2 contibutions as a self-employed earner.

(c)

For each full week during which he has completed a period treated as a period of insurance, employment, self-employment or residence, the person concerned shall be deemed to have had contributions or earnings credited to him as appropriate, but only to the extent required to bring his total earnings factor for that tax year to the level required to make that tax year a reckonable year within the meaning of the United Kingdom legislation governing the crediting of contributions or earnings.

13.2..

For the purposes of Article 46 (2) (b) of the Regulation, where:

(a)

if in any income tax year starting on or after 6 April 1975, an employed person has completed periods of insurance, employment or residence exclusively in a Member State other than the United Kingdom, and the application of paragraph 1 (a) (i) or paragraph 1 (b) (i) results in that year being counted as a qualifying year within the meaning of United Kingdom legislation for the purposes of Article 46 (2) (a) of the Regulation, he shall be deemed to have been insured for 52 weeks in that year in that other Member State:

(b)

any income tax year starting on or after6 April 1975 does not count as a qualifying year within the meaning of United Kingdom legislation for the purposes of Article 46 (2) (a) of the Regulation, any periods of insurance, employment or residence completed in that year shall be disregarded.

13.3..

For the purpose of converting an earnings factor into periods of insurance the earnings factor achieved in the relevant income tax year within the meaning of United Kingdom legislation shall be divided by that year's lower earnings limit. The result shall be expressed as a whole number, any remaining fraction being ignored. The figure so calculated shall be treated as representing the number of weeks of insurance completed under United Kingdom legislation during that year provided that such figure shall not exceed the number of weeks during which in that year that person was subject to that legislation.

14.

In applying Article 40 (3) (a) (ii), account shall only be taken of periods during which the employed or self-employed person was incapable of work within the meaning of United Kingdom legislation.

15.1..

For the purpose of calculating, under Article 46 (2) (a) of the Regulation, the theoretical amount of that part of the pension which consists of an additional component under United Kingdom legislation:

(a)

the expression ‘earnings, contributions or increases’ in Article 47 (1) (b) of the Regulation shall be construed as meaning surpluses in earnings factors as defined in the Social Security Pensions Act 1975 or, as the case may be, the Social Security Pensions (Northern Ireland) Order 1975;

(b)

an average of the surpluses in earnings factor shall be calculated in accordance with Article 47 (1) (b) of the Regulation as construed in subparagraph (a) above by dividing the aggregated surpluses recorded under United Kingdom legislation by the number of income tax years within the meaning of United Kingdom legislation (including part income tax years) completed under that legislation since 6 April 1978 which occur within the relevant period of insurance.

15.2..

The expression ‘periods of insurance or residence’ in Article 46 (2) of the Regulation shall be construed, for the purpose of assessing the amount of that part of the pension which consists of an additional component under United Kingdom legislation, as meaning periods of insurance or residence which have been completed since 6 April 1978.

16.

An unemployed person returning to the United Kingdom after the end of the period of three months during which he continued to receive benefits under the legislation of the United Kingdom pursuant to Article 69 (1) of the Regulation shall continue to be entitled to unemployment benefits by way of derogation from Article 69 (2) if he satisfies the conditions in the aforementioned legislation.

17.

For the purposes of entitlement to severe disablement allowance any employed or self-employed person who is, or has been, subject to United Kingdom legislation in accordance with Title II of the Regulation, excluding Article 13 (2) (f):

(a)

shall, for the entire period during which he was employed or self-employed and subject to United Kingdom legislation whilst present or resident in another Member State, be treated as having been present or resident in the United Kingdom;

(b)

shall be entitled to have periods of insurance as an employed or self-employed person completed in the territory and under the legislation of another Member State treated as periods of presence or residence in the United Kingdom.

18.

A period of subjection to United Kingdom legislation in accordance with Article 13 (2) (f) of the Regulation may not:

(i)

be taken into account under that provision as a period of subjection to United Kingdom legislation for the purposes of Title III of the Regulation,

nor

(ii)

make the United Kingdom the competent State for the provision of the benefits provided for in Article 18, 38 or 39 (1) of the Regulation.

19.

Subject to any conventions concluded with individual Member States, for the purposes of Article 13 (2) (f) of the Regulation and Article 10b of the Implementing Regulation, United Kingdom legislation shall cease to apply at the end of the day on the latest of the following three days to any person previously subject to United Kingdom legislation as an employed or self-employed person:

(a)

the day on which residence is transferred to the other Member State referred to in Article 13 (2) (f);

(b)

the day of cessation of the employment or self-employment, whether permanent or temporary, during which that person was subject to United Kingdom legislation;

(c)

the last day of any period of receipt of United Kingdom sickness or maternity benefit (including benefits in kind for which the United Kingdom is the competent State) or unemployment benefit which

(i)

began before the date of transfer of residence to another Member State or, if later,

(ii)

immediately followed employment or self-employment in another Member State while that person was subject to United Kingdom legislation.

20.

The fact that a person has become subject to the legislation of another Member State in accordance with Article 13 (2) (f) of the Regulation, Article 10b of the Implementing Regulation and point 19 above, shall not prevent:

(a)

the application to him by the United Kingdom as the competent State of the provisions relating to employed or self-employed persons of Title III, Chapter 1 and Chapter 2, Section 1 or Article 40 (2) of the Regulation if he remains and employed or self-employed person for those purposes and was last so insured under the legislation of the United Kingdom;

(b)

his treatment as an employed or self-employed person for the purposes of Chapter 7 and 8 of Title III of the Regulation or Articles 10 or 10a of the Implementing Regulation, provided United Kingdom benefit under Chapter 1 of Title III is payable to him in accordance with paragraph (a).

21.

[F4 In the case of either students or the members of the family or survivors of a student, Article 10a(2) of the Regulation shall not apply to benefits intended solely as specific protection for the disabled.]

21.

[F5 . . . . .]

Textual Amendments

F2 Substituted by Regulation (EC) No 647/2005 of the European Parliament and of the Council of 13 April 2005 amending Council Regulations (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community and (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71.

F3 Inserted by Council Regulation (EC) No 1290/97 of 27 June 1997.

F4 Inserted by Council Regulation (EC) No 307/1999 of 8 February 1999.

F5 Deleted by Regulation (EC) No 647/2005 of the European Parliament and of the Council of 13 April 2005 amending Council Regulations (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community and (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71.

Textual Amendments

F1 Substituted by Council Regulation (EC) No 1791/2006 of 20 November 2006 adapting certain Regulations and Decisions in the fields of free movement of goods, freedom of movement of persons, company law, competition policy, agriculture (including veterinary and phytosanitary legislation), transport policy, taxation, statistics, energy, environment, cooperation in the fields of justice and home affairs, customs union, external relations, common foreign and security policy and institutions, by reason of the accession of Bulgaria and Romania.