Regulation (EC) No 647/2005 came into force on 5 May 2005. The main element of the proposal concerns amendments to Article 4(2a) and Annex IIa of EEC Regulation 1408/71, details regarding special non-contributory cash benefits, to take account of new benefits of this type in national legislation and of developments in the European Court of Justice (ECJ) regarding the classification of such benefits.
Annex IIa of Regulation 1408/71 contains a list of special non-contributory benefits granted by member states to people exclusively within the territory of the member state in which they reside. In other words, they cannot be exported. The benefits in the annex were entered by each member state on the basis that they had characteristics of both social insurance and social assistance typically means tested payments.
The European Court has ruled, Case C-215/99 Jauch and Case C-160/96 Molenaar, that for a benefit to be special it must be clear that it is neither a conventional social insurance nor a social assistance scheme; and have as its prime objective to react to the financial need of the persons concerned and guarantee them a minimum subsistence income, namely, it should be aimed at preventing poverty; or be exclusively designed to provide specific support for disabled people.
In light of case law of the Court, the Commission considered it essential to review the list for each member state in order to ascertain whether the benefits listed meet the special and non-contributory criteria laid down by the Court. Annex IIa as a consequence has been amended to include only those benefits which satisfy the new definition as outlined by the Court, and reflected in Article 4(2a). Member states who wished to retain entries in Annex IIa were required to justify them by reference to the new definition.
Ireland accepted that the eight entries listed in Annex IIa of Regulation 1408/71 would have to be removed in the light of the jurisprudence. Four of these entries come within the remit of the Department of Health and Children, and are: infectious diseases maintenance allowance, domiciliary care allowance, blind welfare allowance, and disabled person's rehabilitation allowance.
Regarding the benefits outlined the Council decided that they should properly be reclassified as sickness benefits in cash, and should be coordinated by the rules relating to sickness benefits set out in Regulation 1408/71 which provides for export of benefits. In addition, and having regard to the jurisprudence of the Court, it was decided that carer's benefit, which is an insurance based payment, is properly classified a sickness benefit in cash within the meaning of Regulation 1408/71. This means that claimants of this benefit can rely to the extent necessary on periods of insurance completed in another member state in order to meet the PRSI contribution conditions. It also means that the benefit can be paid outside the State.
The remaining four entries removed from Annex IIa come within the remit of the Department of Social and Family Affairs, and are as follows: one parent family payment, family income supplement, orphan's non-contributory allowance, and carer's allowance Regarding the first three benefits outlined, the Council decided they should be coordinated as family benefits resulting in these benefits being exportable from Ireland in certain circumstances. Child benefit is already being coordinated as family benefit. In respect of carer's allowance it was agreed this benefit falls outside the scope of Regulation 1408/71 and thus, would continue to be paid only to recipients while resident in Ireland.
Based on what I have said, the Irish entries that are maintained in Annex IIa with effect from 5 May 2005 are: unemployment assistance; old age and blind non-contributory pension; widow's and widower's non-contributory pension; disability allowance; and mobility allowance While certain benefits are no longer listed in Annex IIa it does not mean that in all cases the benefits would be exported without restriction. For instance, child benefit as a family benefit is coordinated so that in the case, for example, of a family living in Northern Ireland with one parent working in the South, the Department of Social and Family Affairs is responsible for paying family benefits by virtue of the person's employment. If family benefits in Northern Ireland were higher that State would pay a supplement representing the difference in the two benefits. This ensures that the family gets the benefit of the highest rates of family benefits payable by the state of employment and the state of residence.