on the application of the European Code of Social Security
(Period from 1 July 2004 to 30 June 2005)
(Adopted by the Committee of Ministers on 6 September 2006
at the 972nd meeting of the Ministers’ Deputies)
The Committee of Ministers,
In the exercise of the functions conferred upon it by Article 75 of the European Code of Social Security (hereinafter referred to as the “Code”), and with a view to supervising the application of this instrument by the Contracting Parties;
Whereas the Code, signed on 16 April 1964, entered into force on 17 March 1968 and since 17 February 1972 has been binding on Ireland, which ratified it on 16 February 1971;
Whereas, when ratifying the Code, the Government of Ireland stated that it accepted, in addition to the parts which must be applied by every Contracting Party (Parts I, XI, XII, XIII and XIV), the following parts of the Code:
– Part III on “sickness benefit”,
– Part IV on “unemployment benefit”,
– Part V on “old-age benefit”,
– Part VII on “family benefit”,
– Part X on “survivors’ benefit”;
Whereas, in pursuance of paragraph 1 of Article 74 of the Code, the Government of Ireland submitted its 32nd annual report on the application of the Code for the period from 1 July 2004 to 30 June 2005;
Whereas, in accordance with paragraph 4 of Article 74, that report was examined by the ILO Committee of Experts on the Application of Conventions and Recommendations, at its 76th meeting in November and December 2005,
Notes that in reply to the Committee of Ministers’ previous conclusions concerning the introduction by the Social Welfare (Miscellaneous Provisions) Act, 2004, of a habitual residence condition (HRC) for non-contributory schemes and the child benefit scheme with effect from 1 May 2004, the government stated that this measure was seen as a necessary response to the potential effects on the social security system of enlargement of the EU, and as an inextricable component of the decision to provide workers from the 10 new member states with full and immediate access to the Irish labour market from 1 May 2004. Child benefit was included in the scope of HRC because it is a universal benefit, which is not means-tested and does not require any attachment to the labour force. The following five criteria are used for determining habitual residence: length and continuity of residence in a particular country; length and purpose of absence from Ireland; nature and pattern of the employment; applicant’s main centre of interest; and future intention of applicant as it appears from all the circumstances. In accordance with the relevant jurisprudence of the European Court of Justice, which precludes reliance on any specific duration of residence for the purpose of establishing habitual residence, no such specific period is the determining factor in any HRC decision and there is no implied presumption that those who are resident in Ireland for more than two years would be regarded as habitually resident. Detailed guidelines exist for specially trained deciding officers and are applied to claimants of all nationalities including Irish citizens. The government therefore believes that there is no significant difference between the Irish use of the term “habitual residence” and the concept of “ordinary residence” in the European Code of Social Security. As regards the application of the HRC legislation in practice, some 46 000 new child benefit claims were made during the period 1 May 2004 to end June 2005, of which 6 000 involved HRC issues. Of the 4 800 claims, which have been determined, approximately 80% have succeeded in establishing habitual residence, while 985 child benefit claims were disallowed. This latter represents 2% of the total number of claims received during this period.
As regards the difference between the concepts of “habitual residence” used in the Irish legislation and “ordinary residence” used in the Code, the Committee of Ministers would like to point out that, unlike the HRC which is not linked to any specific period of residence in the country leaving this question at the discretion of the deciding officer, the concept of ordinary residence is used to determine the precise maximum duration of the qualifying period which the claimant may be required to complete in order to become entitled to benefit. As regards the child benefit, under Article 43 of the Code, the claimant may be required to complete up to six months of ordinary residence and/or one month of contribution or employment. In contrast, section 208A of the Social Welfare (Miscellaneous Provisions) Act, 2004, requires the deciding officer to presume, until the claimant proves otherwise, that he or she is not habitually resident in Ireland unless he or she has been present in the common travel area for a continuous period of two years. Moreover, as stated by the government, there is no implied presumption that those who are resident in Ireland for more than two years would be regarded as habitually resident. The Committee of Ministers considers that, while under these provisions in some cases habitual residence may be determined even before the completion of the six-month residence period by the claimant concerned, as the length of residence is not the only criteria taken into account, there may also be cases where the deciding officer could disallow child benefit for claimants who have duly completed the qualifying period prescribed by the Code, but have not as yet satisfied in the eyes of the deciding officer such other criteria of habitual residence as the claimant’s main centre of interest and future intentions, which are not foreseen by the Code.
The Committee of Ministers recalls that, according to the government’s 31st report on the Code, from 5 April 2004, the minimum contribution period qualifying a person for receipt of sickness benefit and unemployment benefit was increased from 39 weeks to 52 weeks to ensure that those who have recourse to the scheme have a reasonable attachment to the workforce.
The Committee of Ministers notes with interest that the joint technical co-operation mission of the Council of Europe and the ILO, which took place in Dublin in April 2005, examined certain technical questions with a view to ratification by Ireland of additional parts of the Code and that the government confirms its intention to conclude this process as quickly as possible;
Finds that law and practice in Ireland continue to give full effect to the parts of the Code which have been accepted;
Decides to invite the Government of Ireland, concerning the introduction of a habitual residence for non-contributory schemes and the child benefit scheme:
a. to provide a copy of the guidelines for deciding officers, as well as to continue to provide statistics on the number of claims to child benefit involving HRC issues;
b. in order to be able to appraise whether the substantial extension of the qualifying period was warranted to preclude abuse of the corresponding social security schemes, particularly as what concerns sickness benefit, to explain in its next report the reasons which have led to the introduction of the measures in question, and to provide statistical data on the number of employees affected;
c. in order to avoid possible conflict of laws in cases where the discretionary power of the deciding officers might extend beyond the conditions of entitlement to the family benefit laid down by the Code, to draw the attention of the deciding officers (through a circular letter, for example) to the international obligation of Ireland under Article 43 of the Code to provide family benefit to all persons protected who, within a prescribed period, could justify six months of ordinary residence in the country.