WRITTEN QUESTION E-1925/03

by Peter Skinner (PSE) to the Commission

(12 June 2003)

Subject: Winter fuel allowance

A previous constituent of mine, who now lives in the Netherlands, has asked me why, although she receives a UK state pension, she is not allowed to receive the winter fuel allowance paid to all pensioners who reside in the UK.

I should be grateful if you would confirm that the winter fuel allowance should be payable to all UK nationals who receive a UK pension although residing in another EU Member State.

Answer given by Mrs Diamantopoulou on behalf of the Commission

(2 July 2003)

Following lengthy discussion between the British authorities and the Commission, the United Kingdom has agreed to pay winter fuel payments to people living in other Member States as long as they were in receipt of such a payment before they left the United Kingdom.

It is important to recall that the Community legislation on social security, Regulation (EEC) No 1408/71(1), only covers the co-ordination of social security schemes for people who move around the Union. In no way does it replace the national social security schemes, and it is entirely a matter for the Member States to organise and finance their social security schemes as they see fit. Regulation (EEC) No 1408/71 aims to protect the social security rights of those who move, but in itself it does not give rights to benefits under the national social security schemes. Entitlement to benefits is a matter for national law. In doing so the Member States must of course abide by the basic principles of Community law, such as non-discrimination on grounds of nationality, but there is no suggestion in this case that any such discrimination exists.

Now that the United Kingdom accepts that winter fuel payments do come within the scope of Regulation (EEC) No 1408/71, for those who are entitled to it under British law, and who themselves come within the personal scope of the Regulation, the payment will be exportable to another Member State. However, for those who were not entitled to it under national law, Regulation (EEC) No 1408/71 cannot be used to retroactively create an entitlement in respect of people who left the United Kingdom before the scheme was set up in 1998.

The Commission's understanding of winter fuel payments is that it is a non-contributory benefit, so the number of years of National Insurance contributions is irrelevant. It is also not linked to tax, nor is it means-tested. While it may seem like an addition to the state old age pension, legally this is not the case, and entitlement to an old age pension is not a condition of entitlement, as is clear from the fact that men aged 60 or above can claim before they are entitled to a retirement pension. To be entitled a person must be aged over 60 and must have been resident in the United Kingdom on certain date (the qualifying week).

United Kingdom nationals who satisfy the conditions under national law will be entitled to have a winter fuel payment paid to them in whichever Member State they reside. However, for the reasons set out above, not all pensioners will be so entitled, but this difference in treatment is not contrary to Community law.

(1) 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 L 149, 5.7.1971.