I welcome Mr. Tim Quirke, principal officer, and Ms Joan Gordon, assistant principal officer, from the Department. They are old friends and I thank them for appearing before the committee. They must be worn out from appearing before us to examine COM (2004) 214, which is an amended proposal to amend Council Regulation 1048 of 1971 in regard to the co-ordination of social security systems. The officials appeared before the committee in June and we supported a number of points they wished to make during the Irish Presidency regarding the adoption of this proposal. However, we were concerned to ensure the officials would be successful in addressing issues relating to the proposal, for example, the carer's allowance. This is an information exercise and there will not be many questions. The issue came back on to our agenda and we only want an update. I thank the officials for attending.
Scrutiny of EU Proposals.
Mr. Tim Quirke
I refer the committee to the briefing note we circulated on 2 June outlining in detail the progress on this dossier at EU level. Members may recall the committee's discussion of the Commission's original proposal on this matter on 4 November last year, which the then Minister, Deputy Coughlan, attended.
The document COM (2004) 314, which was referred to the committee by the Sub-Committee on EU Scrutiny, contains four amendments to the original Commission proposal agreed by the European Parliament at its first reading in March this year. The original Commission proposal updates the Community regulations co-ordinating the various social security schemes of member states to take into account changes in national legislation and to reflect recent developments in the case law of the European Court of Justice.
The most sensitive part of this proposal concerns a review of the list of special non-contributory benefits, which are not exportable when the beneficiaries move to another member state. The Commission sought to remove a number of benefits currently listed in annex 2A to the main co-ordinating Regulation No. 1408/71 in the light of recent jurisprudence from the court of justice.
One of the main principles governing the Community regulation on co-ordination of social security rights for persons who move within the Union is that benefit entitlements granted in one member state can be exported when the beneficiary moves to another member state. However, the regulation provides an exception to this general rule for special non-contributory benefits and this is included in a list for each member state in annex 2A. This list had, therefore, to be reviewed in the light of recent court of justice rulings.
The court ruled that for a benefit to be regarded as "special", it must be clear that it is not a conventional social insurance or a social assistance payment; and has as its prime objective to react to the financial need of persons concerned and guarantee them a minimum subsistence income. In other words its main aim should be to prevent poverty or it should be exclusively designed to provide specific support for disabled people.
With regard to Ireland, the Commission had proposed deletion of nine entries out of the 13 that currently exist in the regulation. The Department of Health and Children administers five of these, namely mobility allowance; infectious diseases maintenance allowance, domiciliary care allowance, blind welfare allowance and disabled person's rehabilitation allowance. The Commission argued these benefits should be reclassified as sickness benefits in accordance with the rulings of the court and should, therefore, be exportable when a person moves to another member state.
However, during the discussion at Council, we strongly argued that mobility allowance should be retained in the annex on the basis that it met the criteria laid down by the court as intending to provide solely specific protection for the disabled. I am glad other member states and the Commission accepted this argument, and its inclusion in the annex is the subject of amendment No. 2 to document 314.
The Commission also proposed the deletion of four social welfare benefits from the annex. These included one parent family payment, family income supplement, orphan's non-contributory allowance and carer's allowance. The Commission contended that the first three benefits should be classified as family benefits and treated in the same way as child benefit under the regulation. It considered that carer's allowance should be reclassified as a sickness benefit and should, therefore, become exportable.
Members will recall that the committee discussed the Commission's consideration of this benefit at length during its meeting on 4 November last. The Commission proposal was based on the interpretation of the court's ruling in the Jauch judgment. It ruled that care allowances, with the aim of improving the state of health and the life of dependent persons, even though the benefits may cover a number of aspects totally independent of the illness itself, should be classified as sickness benefit for the purpose of the regulation.
The committee, in its final report supported the Minister's view that the carer's allowance differed from the type of benefit examined by the court of justice. The carer's allowance is paid directly to the carer as opposed to the care recipient and is intended as an income support payment for the carer. It should be regarded as a minimum subsistence payment, which aims to ensure the person providing the care is not placed at risk of poverty. On this basis it does not correspond to the traditional branches of social security covered by the regulation such as sickness, invalidity or unemployment and, thus, falls outside the scope of the regulation altogether. That was the basis of the argument we put to other member states and the Commission in regard to carers. I am pleased that these arguments were supported by other member states and finally accepted by the Commission.
The Council considered the dossier during the Irish Presidency. The Presidency was successful in reaching agreement with member states on the vast majority of entries in the annex. However, a number of member states — the UK, Sweden and Finland — felt a number of their benefits, particularly those providing protection for the disabled, which are listed in the current regulation could not be removed.
It was agreed at a Council meeting on 2 June to maintain those benefits in the annex pending future jurisprudence from the court of justice, which might allow the relevant criteria to be clarified and, subsequently, lead to revision of the list of schemes. The Commission reluctantly agreed to the proposed solution but stated that it reserved the right to seize the court and to present a proposal, if necessary, to revise the list of entries based on the findings of the court. The Council of Ministers also agreed to set up a working group to examine the most appropriate co-ordination method to apply to benefits for the disabled, in particular, those excluded from the annex.
The four amendments proposed in document 314 have been incorporated into the new version of the text as agreed by the Council on 2 June last. The text will shortly be adopted in the form of a common position at a forthcoming Council meeting, after its finalisation into all Community languages, and will then be sent to the European Parliament with a view to having a second reading in early 2005.
I thank Mr. Quirke. Approximately 15 months ago we first noticed this document but we did not have time to consider it prior to the deadline. We thought it best to delay consideration of the matter until we had time for a less hurried view. It was the presentation by the delegation which allowed us to understand it. We were concerned that, with increased mobility within the larger Community, citizens should not be penalised for seeking employment opportunities in different jurisdictions. One of the points we argued was the mobility allowance, particularly the carer's allowance, should be retained. I notice the argument was won, on which I compliment the delegation. It is probably aware of the wider debate in this regard which we would not like to see curtailed.
I note the battle was won but it appears a war is waiting to be fought in regard to the Commission which agreed reluctantly to the solutions. It has indicated it will revisit the issue at the first opportunity. It will avail of any European Court of Justice judgment which is more in line with its thinking.
The Department appears to have been successful in the areas that concerned us. I compliment it on what it achieved during the Presidency. I thank the members of the delegation for coming here today. We wanted to be updated because when they notified us in June, we were not fully au fait with recent developments. Obviously, they were very busy during the Presidency. We are acutely aware of the far-reaching consequences of some regulations with which we are not au fait. We lack the competence to deal with them. Therefore, we may need a standing council to help us to deal with them as we are concerned that we might examine something without realising the full ramifications.
Our last meeting was very productive because we felt we had a reasonable grasp of the issues involved. We corresponded with the Department on the various points on which we had reflected. While most of the issues were prompted by the Department, there was a number of related care issues on which we are pleased it has been successful, for which we thank it. If anything arises in the future in this regard, perhaps it will update us on the matter.
I thank Mr. Quirke and Ms Gordon for coming at relatively short notice.
It indicates that the system may be slow but it works. Was Mr. Quirke or Ms Gordon part of the negotiating team?
Mr. Quirke
Ms Gordon, another colleague and I attended a Council working group. The then Minister, Deputy Coughlan, attended the Council of Ministers meeting. This is a topical issue for the European Parliament on which this is not the last word.
I am sure it will examine the matter.
Mr. Quirke
It is concerned about those member states which do not allow the benefits of schemes for the disabled to be exported. We will see parliamentary amendments tabled in regard to some of the schemes not included, particularly in the United Kingdom, Sweden and Finland. Further documents will be placed before the committee, probably next year.
There will be four visits.
I compliment the representatives on a job well done. What are the reasons given for not exporting the benefits of the schemes?
Mr. Quirke
In general, contributory payments such as social insurance payments are exportable. It is a general principle of the regulation in respect of social security that if a person moves from one member state to another, for example, if an old age pensioner living in Ireland wishes to go to the United Kingdom or France to live with a relative, his or her benefits should be exported when he or she moves. The same applies to sickness benefit or to unemployment benefit to a limited extent. For example, if one travels abroad, one can receive unemployment benefit for three months while one works.
In respect of pure social assistance payments like SWA, the rule is that these are not exported. They should only be payable while the person concerned resides in the State. These are mixed categories of non-contributory benefits. Up until now, it was left to member states to list their benefits and each threw everything onto the list but the court has ruled that there must be criteria for listing benefits. They must be exclusively for the protection of the disabled. When the Commission examined the criteria, it stated it would have to reduce the list, on which there were approximately 67 benefits which it wished to reduce to approximately 35. While it agreed with the criteria, it would not agree to their application to the individual schemes. That is what the argument was about. In our case, carer's allowance was one and mobility allowance the other.
I agree with the Chairman's comments. I compliment the Minister and the officials on the good work they have done in Europe. It will be interesting to see how the European Parliament will deal with the matter. At least, we have been alerted.
I thank Mr. Quirke and Ms Gordon for coming. It is useful for us to be kept up to date on a brief we can read and understand. Many of the Commission's regulations are a lawyer's paradise and I do not wish to see lawyers gain any more. I have no doubt that, like their colleagues, Mr. Quirke and Ms Gordon will be back in four or five months time to indicate how matters are progressing. We appreciate their help in understanding the language used. It is a matter for another day if we wish to seek outside help in dealing with other EU scrutiny issues as we do not have the resources to deal with them.
The joint committee went into private session at 4 p.m. and adjourned at 4.05 p.m. sine die.