Date Legislation considered: 24 January 2024
Date Legislation in Force: 31 December 2023
Relevant Withdrawal Agreement/EEA EFTA Separation Agreement Right(s) : Residence, Social Security Coordination
What does the legislation do?
Both sets of Regulations make changes in order that a Category D retirement pension can continue to be claimed by persons resident in an EEA state or Switzerland, if they are covered by a ‘relevant agreement’.
The Explanatory Memorandum to accompany the Statutory Rule (Northern Ireland) can be found here, and for the GB Regulations, here.
A Category D retirement pension is a non-contributory benefit for older pensioners. The eligibility conditions for the benefit are set out in section 78 of the Social Security Contributions and Benefits Act 1992 (Great Britain) and regulation 10 of the Social Security (Widow’s Benefit and Retirement Pensions) Regulations 1979 (Great Britain) and section 78 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 (NI) and regulation 10 of the Social Security (Widow’s Benefit and Retirement Pensions) Regulations (Northern Ireland) 1979 (NI).
Regulation 10 of both sets of Regulations requires claimants to be resident in Great Britain/Northern Ireland on their 80th birthday or the date of claim, if later.
As a result of the European Court of Justice’s judgment in the case of Lucy Stewart v Secretary of State for Work and Pensions (2011), such a provision was unlawful, as it did not allow for otherwise eligible persons to apply for the benefit, if they were ordinarily resident in an EEA State or Switzerland on the date of their 80th birthday or date of claim, if later.
Whilst the legislation had not been amended following the judgment, the Explanatory Memoranda explain that the requirement in the legislation to be resident in Great Britain/NI was effectively disapplied in accordance with the judgment.
The Stewart judgment formed part of retained European Union case-law and without the Regulations, the Retained EU Law (Revocation and Reform) Act 2023 means that as from 31 December 2023, the residence conditions for Category D pensions would no longer have to be read subject to the judgment.
The Explanatory Memoranda state that “This legislation is being made to maintain the effect of the Stewart Judgment, to ensure that those who are resident in an EEA state or Switzerland, and who are in scope of a relevant agreement, can continue to claim a Category D retirement pension while resident in those countries.”
Relevant Agreement includes the EU Withdrawal Agreement and EEA EFTA Separation Agreement.
Whilst the Retained EU Law and Revocation Act 2023 does not sunset the Stewart judgment for the purpose of those within scope of the EU Withdrawal Agreement and EEA EFTA Separation Agreement, the IMA is pleased that the domestic legislation has been amended to make it clear that there is no requirement for citizens who are in scope of the Agreements to be in the UK on their 80th birthday, or the date of claim, whichever is the later.
Comments
The IMA raises no issues of concern at this stage, however any citizen experiencing difficulties in exercising their rights are encouraged to report a complaint through the IMA Portal.
Further information about the IMA and guidance on how to report complaints can also be found on the Website.