# C_2011269EN.01000602.xml

| 10.9.2011 | EN | Official Journal of the European Union | C 269/6 |
| --- | --- | --- | --- |

10.9.2011

EN

Official Journal of the European Union

C 269/6

---

Judgment of the Court (Second Chamber) of 21 July 2011 (reference for a preliminary ruling from the Upper Tribunal (United Kingdom)) — Lucy Stewart v Secretary of State for Work and Pensions

(Case C-503/09) (1)

1

(Social security - Regulation (EEC) No 1408/71 - Articles 4, 10 and 10a - Short-term incapacity benefit in youth - Sickness benefit or invalidity benefit - Conditions of residence, presence on the date on which the claim is made and past presence - Citizenship of the Union - Proportionality)

2011/C 269/09

Language of the case: English

Referring court

Referring court

Upper Tribunal

Parties to the main proceedings

Parties to the main proceedings

Appellant: Lucy Stewart

Appellant:

Respondent: Secretary of State for Work and Pensions

Respondent:

Re:

Re:

Reference for a preliminary ruling — Upper Tribunal — Interpretation of Articles 10, 19, 28, 29 and 95a of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ, English Special Edition 1971 (II), p. 416) — Payments made to unemployed persons from 16 to 25 years of age who are resident in the United Kingdom and have been incapable of work for at least seven months (‘short-term incapacity benefit in youth’) — Classification as a sickness benefit or as an invalidity benefit — Benefit subject to a residence condition

Operative part of the judgment

Operative part of the judgment

| 1. | Short-term incapacity benefit in youth, such as that at issue in the main proceedings, is an invalidity benefit within the meaning of Article 4(1)(b) of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, in the version amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 647/2005 of the European Parliament and of the Council of 13 April 2005, if it is clear that, on the date on which the claim is made, the claimant has a permanent or long-term disability. |
| --- | --- |

1.

Short-term incapacity benefit in youth, such as that at issue in the main proceedings, is an invalidity benefit within the meaning of Article 4(1)(b) of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, in the version amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 647/2005 of the European Parliament and of the Council of 13 April 2005, if it is clear that, on the date on which the claim is made, the claimant has a permanent or long-term disability.

| 2. | The first subparagraph of Article 10(1) of Regulation No 1408/71, in that version, as amended by Regulation No 647/2005, precludes a Member State from making the award of short-term incapacity benefit in youth, such as that at issue in the main proceedings, subject to a condition of ordinary residence by the claimant in that State.
  Article 21(1) TFEU precludes a Member State from making the award of such a benefit subject:






  — | to a condition of past presence of the claimant in that State to the exclusion of any other element enabling the existence of a genuine link between the claimant and that Member State to be established, or |
| --- | --- | --- |

2.

The first subparagraph of Article 10(1) of Regulation No 1408/71, in that version, as amended by Regulation No 647/2005, precludes a Member State from making the award of short-term incapacity benefit in youth, such as that at issue in the main proceedings, subject to a condition of ordinary residence by the claimant in that State.

Article 21(1) TFEU precludes a Member State from making the award of such a benefit subject:

—

to a condition of past presence of the claimant in that State to the exclusion of any other element enabling the existence of a genuine link between the claimant and that Member State to be established, or

| — | to a condition of presence of the claimant in that State on the date on which the claim is made. |
| --- | --- |

—

to a condition of presence of the claimant in that State on the date on which the claim is made.

---

(1)  OJ C 37, 13.2.2010.

1

---