Council Regulation (EC) No 1408/71 (repealed)Show full title

CHAPTER 2 (11) U.K. INVALIDITY

Section 1 U.K. Employed persons or self-employed persons subject only to legislation under which the amount of invalidity benefits its independent of the duration of the periods of insurance

Article 37 (11) U.K. General provisions

1. An employed personor a self-employed person who has beensuccessively or alternately subject to the legislation of two or more Member States and who has completed periods of insurance exclusively under legislation according to which the amount of invalidity benefits is independent of the duration of periods of insurance shall receive benefits in accordance with Article 39. This Article shall not affect pension increases or supplements in respect of children, granted in accordance with Chapter 8.

2. Annex VI, part A, lists legislations of the kind mentioned in paragraph1 which are inforce inthe territory of each of the Member States concerned.

Article 38 (11) U.K. Consideration of periods of insurance or of residence completed under the legislation to which an employed person or a self-employed person was subject for the acquisition, retention or recovery of the right to benefits

1. Where the legislationof a Member State makes the acquisition, retention or recovery of the right to benefits, under a scheme which is not a special scheme within the meaning of paragraph 2 or 3, subject to the completion of periods of insurance or of residence, the competent institution of that Member State shall take account, where necessary, of the periods of insurance or of residence completed under the legislation of any other Member State, be it under a general scheme or under a special scheme and either as an employed person or as a self-employed person. For that purpose, it shall take account of these periods as if they had been completed under its own legislation.

2. Where the legislation of a Member State makes the granting of certain benefits conditional upon the periods of insurance having been completed only in a occupation which is subject to a special schemefor employed persons or, where appropriate, in a specific employment, periods completed under the legislation of other Member States shall be taken into account for the granting of these benefits only if completed under a corresponding scheme or, failing that, in the same occupationor, where appropriate, in the same employment.

If, account having been taken of the periods thus completed, the person concerned does not satisfy the conditions for receipt of these benefits, these periods shall be taken into account for the granting of the benefits under the general scheme or, failing that, under the scheme applicable to manual or clerical workers, as the case may be, subject to the condition that the person concerned has been affiliated to one or other of these schemes.

3. Where the legislation of a Member State makes the granting of certain benefits conditional upon the period of insurance having been completed only in a occupation subject to a special scheme for selfemployed persons, periods completed under the legislation of other Member States shall be taken into account for the granting of these benefits only if completed under a corresponding scheme or, failing that, inthe same occupation. The special schemes for self-employed persons referred to in this paragraph are listed in Annex IV, part B, for each Member State concerned.

If, account having been taken of the periods thus completed, the person concerned does not satisfy the conditions for receipt of these benefits, these periods shall be taken into account for the granting of the benefits under the general scheme or, failing that, under the scheme applicable to manual or clerical workers, as the case may be, subject to the condition that the person concerned has been affiliated to one or other of these schemes.

Article 39 (11)(14) U.K. Award of benefits

1. The institution of a Member State whose legislation was applicable at the time when incapacity for work followed by invalidity occurred shall determine, in accordance with that legislation, whether the person concerned satisfies the conditions for entitlement to benefits, taking account, where appropriate, of Article 38.

2. A person who satisfies the conditions referred to in paragraph 1shall receive the benefits only from the said institution, in accordance with the provisions of the legislation which it administers.

3. A person who is not entitled to benefits under paragraph 1 shall receive the benefits to which he is still entitled under the legislation of another Member State taking account, where appropriate, of Article 38.

4. If the legislation referred to in paragraph 2 or 3 provides that the amount of the benefits shall be determined taking into account the existence of members of the family other than the children, the competent institution shall also take into consideration those members of the family of the person concerned who are residing in the territory of another Member State, as if they were residing in the territory of the competent State.

5. If the legislation referred to in paragraph 2 or 3 lays down provisionsfor the reduction, suspension or withdrawal of benefits in the case of overlapping with other income or with benefits of a different kind within the meaning of Article 461 (2), Article 46a (3) and Article 46c (5) shall apply mutatis mutandis.

6. A wholly unemployed employee to whom Article 71 (1) (a) (ii) or the first sentence of Article 71 (1) (b) (ii) applies shall receive the invalidity benefits provided by the competent institution of the Member State inwhose territory he resides, inaccordan ce with the legislation which it administers, as though he had been subject to that legislation during his last employment, account being taken, where appropriate, of Article 38 and/or Article 25 (2). The institution of the country of residence shall be responsible for paying these benefits.

Where that institution applies legislation providing for deduction of contributions payable by unemployed persons to cover invalidity benefits, it shall be authorized to make such deductions in accordance with the provisions of its legislation.

If the legislation which that institution administers provides for the calculation of benefits to be based on wages or salaries, the institution shall take into account the wages or salaries received in the last country of employment and in the country of residence in accordance with the legislation which it administers. Where no wage or salary has been received in the country of residence, the competent institution shall refer, as necessary and in accordance with the rules laid down in itslegislation, to the salaries received in the last country of employment.

Section 2 U.K. Employed persons or self-employed persons subject either only to legislation under which the amount of invalidity benefit depends on the duration of periods of insurance or residence or the legislation of this type and of the type referred to in Section 1

Article 40 (11) U.K. General provisions

1. An employed personor a self-employed person who has beensuccessively or alternately subject to the legislation of two or more Member States, of which at least one is not of the type referred to in Article 37 (1), shall receive benefits under the provisions of Chapter 3, which shall apply mutatis mutandis, taking into account the provisions of paragraph 4.

2. However, anemployed or self-employed personwho suffers incapacity for work leading to invalidity while subject to a legislation listed in Annex IV, part A, shall receive benefits in accordance with the provisions of Article 37 (1) on the following conditions:

• that he satisfies the conditions of that legislation or other legislations of the same type, taking account where appropriate of Article 38, but without having recourse to periods of insurance completed under legislations not listed in Annex IV, part A, and

• that he does not satisfy the conditions required for the acquisition of the right to invalidity benefits under a legislation not listed in Annex IV, part A, and

• that he does not assert any claims to old-age benefits, account being taken of the second sentence of Article 44 (2).

3. (a) For the purpose of determining the right to benefits under the legislation of a Member State, listed in Annex IV, part A, which makes the granting of invalidity benefits conditional upon the person concerned having received cash sickness benefits or having been incapable or work during a specified period, where anemployed person or a self-employed personwho has been subject to that legislation suffers incapacity for work leading to invalidity while subject to the legislation of another Member State, account shall be taken of the following, without prejudice to Article 37 (1):

(i)

any period during which, in respect of that incapacity for work, he has, under the legislation of the second Member State, received cash sickness benefits, or, in lieu thereof, continued to receive a wage or salary;

(ii)

any period during which, in respect of the invalidity which followed that incapacity for work, he has received benefits within the meaning of this Chapter 2 and of Chapter 3 that follows, of the Regulation granted in respect of invalidity under the legislation of the second Member State.

as if it were a period during which cash sickness benefits were paid to him under the legislation of the first Member State orduring which he was incapable or working within the meaning of that legislation.

(b) The right to invalidity benefits under the legislation of the first Member State shall be acquired either uponexpiry of the preliminary period of compensation for sickness, as required by that legislation, or upon expiry of the preliminary period of incapacity of work as required by that legislation, but not before:

(i)

the date of acquisition of the right to invalidity benefits referred to insubparagraph (a) (ii) under the legislation of the second Member State,

or

(ii)

the day following the last day on which the person concerned is entitled to cash sickness benefits under the legislationof the second Member State.

4. A decision taken by an institution of a Member State concerning the degree of invalidity of a claimant shall be binding on the institution of any other Member State concerned, provided that the concordance between the legislation of these States on conditions relating to the degree of invalidity is acknowledged in Annex V.

Section 3 U.K. Aggravation of invalidity

Article 41 (11) U.K.

1 In the case of aggravation of anin validity for which anemployed person or a self-employed person is receiving benefits under the legislation of a single Member State, the following provisions shall apply:

(a) if the person concerned has not been subject to the legislation ofanother Member State since receiving benefits, the competent institution of the first State shall grant the benefits, taking theaggravation into account, in accordance with the provisions of the legislationwhich it administers;

(b) if the person concerned has been subject to the legislation of one or more of the other Member States since receiving benefits, the benefits shall be granted to him, taking the aggravation into account, in accordance with Article 37 (1) or 40 (1) or (2), as appropriate;

(c) if the total number of the benefit or benefits payable under subparagraph (b) is lower than the amount of the benefit which the person concerned was receiving at the expense of the institution previously liable for payment, such institution shall pay him a supplement equal to the difference between the two amounts;

(d) if, in the case referred to in subparagraph (b), the institution responsible for the initial incapacity is a Dutch institution, and if:

(i)

the illness which caused the aggravation is the same as the one which gave rise to the granting of benefits under Dutch legislation,

(ii)

this illness is an occupational disease within the meaning of the legislation of the Member State to which the person concerned was last subject and entitles him to payment of the supplement referred to in Article 60 (1) (b), and

(iii)

the legislation or legislations to which the person concerned has been subject since receiving benefits is or are listed in Annex IV, part A,

the Dutch institution shall continue to provide the initial benefit after the aggravation occurs, and the benefit due under the legislation of the last Member State to which the person concerned was subject shall be reduced by the amount of the Dutch benefit;

(e) if, in the case referred to in subparagraph (b), the person concerned is not entitled to benefits at the expense of an institution of another Member State, the competent institution of the first State shall grant the benefits, according to the provisions of the legislation of the State, taking into account the aggravation and, where appropriate, Article 38.

2. In the case of aggravation of anin validity for which anemployed person or a self-employed person is receiving benefits under the legislation of two or more Member States, the benefits shall be granted tohim, taking the aggravation into account, in accordance with Article 40 (1).

Section 4 U.K. Resumption of provision of benefits after suspension or withdrawal — Conversion of invalidity benefits into old-age benefits — Recalculation of benefits granted under Article 39

Article 42 (11) U.K. Determination of the institution responsible for the provision of benefits where provision of invalidity benefits is resumed

1. If provision of benefits is to be resumed after suspension, such provisionshall, without prejudice to Article 43, be the responsibility of the institution or institutions which were responsible for provision of the benefits at the time of their suspension.

2. If, after withdrawal of benefits, the condition of the person concerned warrants the granting of further benefits, they shall be granted in accordance with Article 37 (1) or Article 40 (1) or (2), as appropriate.

Article 43 (11) U.K. Conversion of invalidity benefits into old-age benefits — Recalculation of benefits granted under Article 39

1. Invalidity benefits shall be converted into old-age benefits, where appropriate, under the condition laid down by the legislation or legislations under which they were granted, and in accordance with Chapter 3.

2. Where a person receiving invalidity benefits can establish a claim to old-age benefits under the legislation of one or more Member States, in accordance with Article 49, any institution which is responsible for providing invalidity benefits under the legislation of a Member State shall continue to provide such a person with the invalidity benefits to which he is entitled under the legislation which it administers until the provisions of paragraph 1 become applicable as regards that institution or so long as the person concerned fulfils the conditions for such benefits.

3. Where invalidity benefits granted in accordance with Article 39under the legislation of a Member State are converted into old-age benefits and where the person concerned does not yet satisfy the conditions required by one or more national legislations to receive these benefits, the person concerned shall receive, from this or these Member States, from the date of the conversion, invalidity benefits granted in accordance with Chapter 3 as if that Chapter had been applicable at the time when his incapacity for work leading to invalidity occurred, until the person concerned satisfies the qualifying conditions for old-age benefit laid down by the national legislations concerned or, where such conversion is not provided for, as long as he has a right to invalidity benefits under the legislation or legislations concerned.

4. The invalidity benefits provided under Article 39 shall be recalculatedpursuant to Chapter 3 as soon as the beneficiary satisfies the qualifying conditions for invalidity benefits laid down by a legislation not listed in Annex IV, part A, or as soon as he receives old-age benefits under the legislation of another Member State.

[F1 Section 5 U.K. Persons covered by a special scheme for civil servants

Article 43a U.K.

1. The provisions of Articles 37, 38(1), 39 and Sections 2, 3 and 4 shall apply by analogy to persons covered by a special scheme for civil servants.

2. However, if the legislation of a Member State makes the acquisition, liquidation, retention or recovery of the rights to benefits under a special scheme for civil servants subject to the condition that all periods of insurance have been completed under one or more special schemes for civil servants in that Member State, or are regarded by the legislation of that Member State as equivalent to such periods, account shall be taken only of the periods which can be recognised under the legislation in that Member State.

If, account having been taken of the periods thus completed, the person concerned does not satisfy the conditions for the receipt of these benefits, these periods shall be taken into account for the granting of the benefits under the general scheme or, failing that, the scheme applicable to manual or clerical workers, as the case may be.

3. Where, under the legislation of a Member State, benefits are calculated on the basis of the last salary or salaries received during a reference period, the competent institution of that State shall take into account for the purposes of the calculation only those salaries, duly revalued, received during the period or periods for which the person concerned was subject to that legislation.]

Textual Amendments

F1 Inserted by Council Regulation (EC) No 1606/98 of 29 June 1998.