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Competent state
Generally, only one country at any one time will be responsible for paying benefits to an individual in the protected cohort. The country responsible for paying an individual’s benefits is known as the ‘competent state’. In order for members of the protected cohort to be eligible for Scottish Adult DLA, the UK must be their competent state ( Scottish Adult DLA Regs, Reg 22)
The rules on competent states and social security coordination are set out in the EU Regulation (EC) No. 883/2004. Under the terms of the EU-UK Withdrawal Agreement, the Swiss Citizens’ Rights Agreement, and the EEA EFTA Separation Agreement, the UK is still bound by this regulation for the protected cohort. The regulations coordinate the national social security systems of the various countries so that a worker moving within the EEA may:
- be protected against the risks covered by EU provisions; and
- maintain rights acquired in one EEA country when moving to another country.
An order of priority is used to determine the competent state:
- If the individual is working, then the country where they actually work will be the competent state for paying their benefits.
- If the individual is not working, then the country which already pays the individual a benefit is the competent state. This is when the individual receives a pension or other contributory social security benefit from a country other than the one where they live.
- If the individual is neither working nor receiving any social security benefits, then the country where they live is the competent state.
When an individual receives a pension or more than one pension from one or more countries, one of which is the country of residence, then that country will be responsible for payment of sickness benefits (in cash and in kind) to that pensioner and members of their family.
Where the person is entitled to benefits in kind under the legislation of two or more EEA States responsible for the pension(s), then the state where the person had pensions insurance for the longest period will bear the cost of benefits in kind and pay cash sickness benefits (or if that results in more than one state, the state in which the person was last subject)
.The EU definition of a pension includes state provided old-age pensions as well as payments which can be made to younger people who are unable to work or have reduced earnings capacity. More information about the classification of benefits and pensions can be obtained from the EU's Mutual Information System on Social Protection (MISSOC) database (MISSOC - Mutual Information System on Social Protection)
Members of the armed forces and civil servants, and their families, are subject to the legislation to which the administration employing them is subject. For example, if they are employed by the UK Government, the competent state is the UK.
No award of the care component of Scottish Adult DLA should be made where the UK is not the competent state. The mobility component can still be awarded if the applicant satisfies all other eligibility criteria.
In cases where the UK is not the competent state, any application for reinstatement should be refused and the details immediately forwarded to the competent member state.
A person can have rights to benefits as the family member of a pensioner, but also have an independent right to benefits. In this case their independent rights take priority unless that independent right exists solely because of their residence, in which case their competent state is determined by their family member’s competent state.
Examples of competent state
Stefan, a Romanian national, lives and works in Glasgow for a Scottish company. The UK is the competent state as Stefan’s state of employment.
Orla, a Polish national, lives in Poland and works remotely for a company based in Glasgow. The UK is competent as Orla’s state of employment.
Tomas, a Slovakian national, lives in Dundee. He is not employed or self-employed because he is retired and receives a state pension from Slovakia. Slovakia is the competent state as Tomas’s state of insurance.
Camille is French and she lives in Durness. She is not employed or self-employed and she does not receive any contributory benefits from any other countries. The UK is the competent state as Camille’s state of residence.
Frankie has a live award of Scottish Adult DLA (care component only). He moves to Spain. As long as Frankie does not take up employment in Spain, his award should be paid until it ends for any reason (such as a change of circumstances). Any new applications should be directed to the relevant Spanish authorities, as Frankie’s state of residence.
Maryah lives in Brussels. She is employed as a civil servant by the Scottish Government and is posted to Brussels for work. Because Maryah is a UK civil servant, the competent state is the UK.
Jill lives in Greece. She is entitled to a UK Pension at a reduced rate but she is also entitled to a French Pension. Jill is not entitled to benefits in kind under Greek law. Jill worked and paid pensions insurance in France for 25 years but had only paid National Insurance contributions for 10 years in the UK. Because she paid more contributions in France, the UK is not the competent state.
Paula is 63 years old and lives in Inverness. She is married to Tove, who worked in Sweden for 25 years and receives a retirement pension from Sweden. Tove does not receive a pension from the UK. Paula is not employed or self-employed or have a pension. Sweden is Paula’s competent state for the payment of cash sickness benefits. When Paula reaches UK state pension age, she starts receiving a UK state pension and the UK becomes both her and Tove’s competent state..