DECISION OF THE SOCIAL SECURITY COMMISSIONER 

Commissioner's Case No:  CIB/4471/2000

1.	The decision of the Whittington House appeal tribunal dated 11 July 2000 is erroneous in point of law, for the reasons given below, and I set it aside. It is expedient for me to substitute the decision on the claimant's appeal against the adjudication officer's decision issued on 10 January 1996 having made further findings of fact (Social Security Act 1998, section 14(8)(a)(ii)). My decision is that the claimant is not entitled, on the claim treated as made on 17 May 1993, to invalidity benefit from and including 26 June 1989, or to long-term incapacity benefit for the period from 13 April 1995. Thus, although the appeal to the Commissioner succeeds as a matter of law, the result for the claimant is the same.

2.	This case has been running for an inordinate length of time. There has been considerable delay since the oral hearing in obtaining further evidence, and since the last submission on behalf of the claimant was received. That is my responsibility and I apologise for it. However, that pales into insignificance alongside the earlier lapses of time. The new evidence, which has changed my view of the basic facts, has enabled me after a good deal of thought to approach the case in a rather more direct way.

3.	I must start with the case as it was presented to the appeal tribunal of 11 July 2000. The start so far as the United Kingdom (UK) authorities were concerned was the receipt of a form E204 B dated 28 June 1993 from the Mutualité Libérale du Brabant in Belgium. This recorded that a claim for invalidity pension for sickness starting on 26 June 1989 had been received by the institution, the competent institution in Belgium, where the claimant was then resident, on 17 May 1993. The claimant had said that he suffered an injury at work in Italy on 26 June 1989, and that he had received Italian sickness benefit until 5 July 1989 or 10 July 1989, when he moved to Belgium. It appears that the claimant has not been able to work since and the evidence is that his disability at least since 1993 has been quite severe.

4.	The claimant is a British national, had worked in the UK and paid national insurance contributions (with breaks) from 1967 to 11 April 1987. He had worked and paid social security contributions for periods in Belgium from 1974 to 1988, and in Italy from 1978 to 10 July 1989. I shall come back later to the precise information on the form E204 B. The form was sent as required by EC Council Regulations No 1408/71 and 574/72, for the Department of Social Security in the UK to calculate whether there was so-called pro rata entitlement to British invalidity pension. A form E204 B was evidently sent to the Italian authorities at the same time, as they also processed, and rejected (apparently on 27 April 1995), a claim for invalidity pension made on 17 May 1993. A form E204 B may also have been sent to France, where the claimant had worked for some time, or he may have made an independent claim there, as a claim for invalidity benefit was also rejected by the French authorities.

5.	At the time, entitlement to invalidity pension depended on the claimant being incapable of work and having been entitled to sickness benefit for 168 days. Section 33(1) of the Social Security Contributions and Benefits Act 1992 (replacing Social Security Act 1975, section 15(1), to the same effect) provided:

	"(1) Where in respect of any period of interruption of employment a person has been entitled to sickness benefit for 168 days ... then--
	 (a)	he shall cease to be entitled to that benefit for any subsequent day of incapacity for work falling within that period; and
	 (b)	he shall be entitled to an invalidity pension under this section for any day of incapacity for work in that period for which, by virtue only of paragraph (a) above, he is not entitled to sickness benefit if on that day either--
		 (i)	he is under pensionable age, or
		(ii)	being over that age but not more than 5 years over it he satisfies either of the conditions of subsection (2) below;
	and any day in the first 3 days of a period of interruption of employment which was a day of incapacity for work shall be treated for the purposes of this subsection as a day on which he was so entitled."

Section 33(10) provided:

	"The Secretary of State may by regulations provide that, for the purpose of entitlement to invalidity pension under this section, such days as may be prescribed, in respect of which a person is or has been entitled to statutory sick pay, shall be days in respect of which he is deemed to be or to have been entitled to sickness benefit."

Regulation 7A(3) and (4) of the Social Security (Unemployment, Sickness and Invalidity Benefit) Regulations 1983 provided in effect for such days to count towards the 168 days of entitlement to sickness benefit.

6.	Entitlement to sickness benefit was subject to a contribution test, which required the payment of crediting of sufficient contributions in both of the last two tax years before the benefit year in which the period of interruption of employment began. In the present case, the two relevant tax years were 1986/87 and 1987/88. The claimant did not have enough UK contributions paid or credited in 1987/88 to qualify for sickness benefit. In addition, he had never claimed UK sickness benefit and was absent from Great Britain and could not benefit from the lifting of the contribution conditions in cases of industrial accidents (Social Security Contributions and Benefits Act 1992, section 102) as he was not an employed earner in Great Britain at the time. Nor could he gain any assistance from Regulation 1408/71 in relation to sickness benefit, as for that purpose the UK was not the competent State (Article 13). The competent States were Italy in 1989 and then Belgium once his employment ceased and his residence transferred. Thus the claimant could not qualify for UK invalidity pension on the basis of the UK legislation looked at in isolation.

7.	However, there were provisions in Regulation 1408/71 which could potentially help the claimant, in relation to which it does not matter that the UK is not the competent State. Because UK invalidity pension did not have a direct contribution test, the provisions for the aggregation of contributions made in other Member States could not help in relation to invalidity pension. But Article 40(3) contains specific rules which cover circumstances where entitlement to invalidity pension depends on prior receipt of sickness benefit. It is agreed that Article 40 is applicable, rather than Articles 37 to 39, because the claimant had been subject both to legislation which made the amount of invalidity benefit dependent on the length of insurance and to legislation which did not do so.

8.	Article 40(3) provides:

	"(a) For the purpose of determining the right to benefits under the legislation of a Member State, listed in Annex IV, part A, which makes the granting of invalidity benefits conditional upon the person concerned having received cash sickness benefits or having been incapable of work during a specified period, where an employed person or a self-employed person who has been subject to that legislation suffers incapacity for work leading to invalidity while subject to the legislation of another Member State, account shall be taken of the following, without prejudice to Article 37(1):
	 (i)	any period during which, in respect of that incapacity for work, he has, under the legislation of the second Member State, received cash sickness benefits or, in lieu thereof, continued to receive a wage or salary;
	(ii)	any period during which, in respect of the invalidity which followed that incapacity for work, he has received benefits within the meaning of Chapters 2 and 3 of Title III of the Regulation granted in respect of invalidity under the legislation of the second Member State,
	as if it were a period during which cash sickness benefits were paid to him under the legislation of the first Member State or during which he was incapable of working within the meaning of that legislation.
	 (b) The right to invalidity benefits under the legislation of the first Member State shall be acquired either upon the expiry of the preliminary period of compensation for sickness as required by that legislation or upon expiry of the preliminary period of incapacity for work as required by that legislation, but not before:
	 (i)	the date of acquisition of the right to invalidity benefits referred to in subparagraph (a)(ii) under the legislation of the second Member State, or
	(ii)	the day following the last day on which the person concerned is entitled to cash sickness benefits under the legislation of the second Member State."

9.	The adjudication officer in a decision notified on 10 January 1996 decided that the claimant was not entitled to invalidity benefit from and including 26 June 1989, on the ground that he had not been entitled to sickness benefit for 168 days or received sickness benefit or equivalent benefits from Italy in the period of interruption of employment. According to the written submission to the appeal tribunal, the view was taken that the claimant was not entitled to either Belgian or Italian invalidity benefit and that the receipt of Italian sickness benefit from 26 June 1989 to 5 July 1989, if counted under Article 40(3), fell short of the necessary 168 days.

10.	The claimant appealed. The appeal was held over pending the result of his appeal against the rejection of his claim for Belgian invalidity benefit. However, there were intractable problems in having that case heard. The claimant's appeal against the adjudication officer's decision was eventually listed for 29 October 1999. By this time the claimant was represented by Ms Sophie Shotton of counsel, acting through the Free Representation Unit. That hearing was adjourned, mainly to establish the position of the claimant's appeals in Belgium and Italy. The adjourned hearing took place on 11 July 2000.

11.	Ms Shotton had made detailed written submissions. As it turns out I do not need to go into all the details. There were two major points: (1) that Italy was in breach of Articles 19 and 22 of Regulation 1408/71 in not continuing to pay the claimant sickness benefit after he transferred his residence to Belgium and that the UK was not entitled to take advantage of that breach in denying the claimant's entitlement to sickness benefit for at least 168 days; and (2) that if the UK imposed a test of receipt of sickness benefit for those relying on Regulation 1408/71 and a test of entitlement for those relying on UK domestic law in isolation, that was a breach of the principle of equality of treatment in Article 6 of the Treaty of Rome and Article 3 of Regulation 1408/71 and hindered the right of free movement of workers.

12.	The appeal tribunal dismissed the appeal. On the Ms Shotton's first point it decided that the Benefits Agency had done all that it could in the circumstances to discover the grounds of the Italian decision and that it was for the claimant to take up any possible cause of action against the Italian authorities. There was no breach of Article 19 of Regulation 1408/71 so far as the UK was concerned. On the second point, it decided that, as the claimant had not moved to Belgium to pursue an economic activity, nothing could be added to the explanation given in the adjudication officer's submission and a letter to the claimant of 26 October 1998. The essence was that he had only received sickness benefit from 26 June 1989 to 5 July 1989 and there was no evidence that he received sickness benefit or equivalent benefits from Italy or from Belgium in the period of interruption of employment.

13.	The claimant now appeals against that decision, with leave very properly granted by the chairman of the appeal tribunal of 11 July 2000. The appeal was not supported in the written submission dated 15 February 2001 on behalf of the Secretary of State. Following Ms Shotton's reply, I granted her request for an oral hearing of the appeal. The oral hearing took place on 31 July 2001. Ms Shotton represented the claimant. Mr Jeremy Heath of the Office of the Solicitor to the Department for Work and Pensions represented the Secretary of State. There was a wide-ranging discussion of many issues of EC law and of the meaning and application of specific provisions of Regulation 1408/71. I am grateful to both representatives for the learning and industry that went into their submissions. Mr Heath did not depart from the submission that the appeal tribunal had not erred in law.

14.	Following the oral hearing, for reasons that will appear below, I directed that enquiries should be made to the Belgian and Italian authorities to obtain official certificates or statements of the benefits paid to the claimant and the decisions made, not just from 17 May 1993 onwards, but from 26 June 1989 onwards. That took some time, but, as indicated above, has enabled me to reach a view about the proper outcome of the case.

15.	First, I am satisfied that the appeal tribunal of 11 July 2000 did err in law in a way which requires its decision to be set aside. The appeal tribunal did not give adequate reasons for rejecting Ms Shotton's second point. The adjudication officer's written submission and the letter to the claimant had not attempted to meet the point about discrimination arising from the distinction between the tests of entitlement to sickness benefit and receipt of sickness benefit. Therefore, the appeal tribunal's reference to those documents supplied no reason for its rejection of the point. I think that Mr Heath's submission was that Ms Shotton's second point could not succeed as a matter of law, so that the appeal tribunal's decision, as opposed to its reasons, was correct in law and should not be set aside. I might have taken that line (given the lack of practical difference between dismissing an appeal and allowing the appeal but substituting a decision to the same effect). However, there was another error of law.

16.	This stems from the information given by the Belgian institution in section 9 of the form E204 B of 28 June 1993, which covers claims made by the insured person and benefits received. In section 9.3 it was ticked that the claimant had claimed ("a demandé les prestations suivante") "indemnités de l'assurance-maladie pour incapacité de travail", translated on the English version of form E204 B as "Sickness insurance cash benefits for incapacity for work". It was also ticked that the claimant received those benefits ("et/ou bénéficie des prestations suivantes"). On the English version that is translated as "and/or receives the following benefits". The use of the present tense seems to be common to both the French and the English version. It was further ticked in section 9.8 that there had been a claim for a pension for accident at work or occupational disease ("rente d'accident du travail ou maladie professionelle"), but no benefit had been received. In section 9.12, where the institution responsible for paying the benefits indicated was to be named, was written, for 9.3 "USL" and for 9.8 "INAIL". In section 9.13, under period or date on which due ("Période ou date d'effet") was entered "26.6.89". There seems no doubt that INAIL stands for Istituto nazionale per l'assicurazione contro gli infortuni sul lavoro, the Italian social security authority responsible for the payment of benefits for accidents at work. However, down to the time of the oral hearing before me no-one had identified what USL stands for.

17.	The appeal tribunal accepted the summary of facts in the adjudication officer's submission, which it said was undisputed. This referred to the receipt of sickness benefit from the Italian authorities from 26 June 1989 to 5 July 1989 and stated that the claimant was not entitled to any benefits from the Belgian authorities. The appeal tribunal also stated that there was no evidence that he received sickness benefit or equivalent benefits from Italy or Belgium (beyond that just mentioned) in the period of interruption of employment. In my view there was sufficient doubt in the evidence to make that an inaccurate statement and to have required the appeal tribunal to seek further evidence. The adverse decisions given by Italy, Belgium and France were on the claims for invalidity benefit made from 17 May 1993. There was some confusion over exactly what sickness benefit had been paid to the claimant. Although part of his complaint was that Belgium would not pay him when he arrived from Italy, the use of the present tense in the references to benefits paid by USL on the form E204 B, the absence of any end date to the period stated for the payment of benefit and the lack of information about what USL stood for, even whether it was an Italian institution or a Belgian institution, all went to raise a doubt whether he might have received some other payments which could count for the purposes of Article 40(3) of Regulation 1408/71. There was at least a suggestion that Belgium was paying benefits as at 28 June 1993, as had been raised by Ms Shotton at the hearing on 29 October 1999 (page 80). In those circumstances, even though Ms Shotton had not succeeded in getting any more information about benefits from the claimant, it was an error of law for the appeal tribunal to proceed to make a decision on the basis it adopted. At the very least, the issue should have been dealt with in the statement of findings of fact and reasons and the failure to do so was an error of law.

18.	The combination of those reasons, leaving the factual basis of the appeal tribunal's decision undermined, its decision must be set aside as erroneous in point of law. The claimant's appeal against the adjudication officer's decision issued on 10 January 1996 remains to be decided. It is plainly expedient for me to make that decision, having got so far into the dispute. The making of the necessary further findings of fact required further investigation and provision of evidence. That was the reason for my directions after the oral hearing.

19.	Ms Shotton put in a further statement from the claimant and a copy of a letter dated 20 July 2001 from Mr Cornelisson of the Employment and Social Affairs Directorate of the EC Commission before the replies were received from the Italian and Belgian authorities. These paint fairly inconsistent pictures. I shall describe the official replies first. There are no certified translations of the Italian reply and Italian certificates attached to the Belgian reply (the reply itself is in English), but I think that Mr Heath's summary in his letter dated 12 November 2001 is accurate.

20.	The letter dated 4 October 2001 from the Institut National d'Assurance Maladie-Invalidité (INAMI) in Belgium is as follows:

	"When [the claimant] introduced his claim for invalidity benefits in Belgium, he stated that he had been paid Sickness Benefits by the Italian institution. He did, indeed, produce documents that showed he had been recognised as unfit for work from 26.06.1989 to 05.07.1989 included (see attachments). The Belgian insurance organism completed form E204 B according to the claimant's declarations.

	However, on 24.10.1997, the INPS of Forli confirmed that no sickness benefits had ever been paid. As the period of incapacity is mentioned as an insurance period on form E205 I, we conclude that [the claimant] received sick pay from his employer.

	We otherwise confirm that [the claimant] received no Social Security Benefits in Belgium from 05.07.1989 to the present date, as far as we know: we haven't heard from him since 1998 and don't know his whereabouts."

21.	The attachments were copies of three Italian doctor's certificates. The photocopying is impossible to read in several places. The first appears to certify incapacity for work from 26 June 1989 to 30 June 1989, the second appears to certify incapacity for work from 30 June 1989 to 8 July 1989 and the third appears to certify that the claimant would be fit to return to work on 6 July 1989. All three certificates say that certification was requested by INPS (Istituzione Nationale della Previdenza Sociale, the Italian institution responsible for the payment of sickness and invalidity benefits). It is also noteworthy that each certificate has a USL number filled in and the third appears to be a joint form for INPS and Unità Sanitaria Locale. On the first two certificates the place for indicating that incapacity was or was not the result of an industrial accident is left blank. Forms E205 I are already in the papers at pages 18/19 and 67/68 (the second is more detailed) showing the most recent recorded Italian social security contributions as an "operaio" (worker) for the six weeks from 5 June 1989 to 10 July 1989.

22.	The letter dated 2 October 2001 from INPS in Forli said that that institution had not paid the claimant any sickness benefits. In the period from 26 June 1989 to 5 July 1989, the period during which he was ill, he was paid by his employer in the regular manner. The date of 10 July 1989 was the date of the cessation of the employment relationship with the Hotel Olimpic.

23.	In my judgment that evidence clearly establishes the position so far as Belgian benefits go. It is now clear that section 9 of the E204 B of 28 June 1993 was completed according to the information given by the claimant and referred only to Italian benefits. USL has now been identified as, it seems, an Italian institution concerned with the provision of health care benefits in kind (and see the mentions of USL in the cases of Paletta v Brennet AG (Case C-45/90) [1992] ECR I-3423 and Brennet AG v Paletta (Case C-206/94) [1996] ECR I-2357). Since the claimant has always complained that Belgium refused to pay him any cash benefits, there is no reason to doubt that no sickness or invalidity benefits have been paid to him by Belgium.

24.	The position in relation to Italian benefits is far less straightforward. However, the statement in the letter of 2 October 2001 is fairly plain. It is consistent with what INPS has been saying now for some years. For instance, the letter of 24 October 1997 mentioned in the INAMI letter of 4 October 2001 stated that no sickness benefits had ever been paid to the claimant. Also, in the letter dated 25 January 1999 to the Overseas Branch of the Benefits Agency (pages 65/66) it was said that the period from 26 June 1989 to 5 July 1989 did not give rise to the crediting of contributions since the period was already covered by compulsory contributions. The form E205 I on its own might not enable one to distinguish between credited contributions (eg during periods of benefit entitlement) and paid contributions (during period of the receipt of earnings), but that letter confirms that earnings were paid in the period to 10 July 1989. INPS has never said anything positively to suggest that sickness benefit had been paid or claimed. The statements about appeals are in relation to the claims for invalidity benefit on 17 May 1993 and a later date. I note that INAMI concluded that the claimant had received sick pay from his employer for the period from 26 June 1989 to 5 July 1989, but that can only add marginally to the weight of the more direct evidence.

25.	On the other hand are the claimant's consistent statements that he received sickness benefits from the Italian institution and that payment was stopped on the ground that he was ceasing to reside in Italy (a ground that he challenges as invalid under Regulation 1408/71). The consistency is shown by what he told the Belgian authorities and was repeated on the form E204 B. The claimant obviously has some practical knowledge of the workings of the various social security systems in Italy and Belgium, and might be expected to have got matters right. However, the mention of USL to the Belgian authorities casts slight doubt on that, as that institution seems not to have been responsible for the payment of cash sickness benefits, which would have been the responsibility of INPS. On the other hand also is the information contained in Mr Cornelisson's letter of 20 July 2001. The Italian Ministry of Labour and Social Affairs had told him that the claimant was not entitled to benefits because he had an existing medical condition and there was no indication that he had been the victim of a work injury. This is very peculiar as there had not previously been any mention of this as a ground for refusing entitlement. It is not surprising that the work connection was one of the main points taken up in the claimant's statement included with Ms Shotton's letter of 31 August 2001. However, it is not entirely clear at what level the reply to Mr Cornelisson was made (ie was the knowledge of the proceeding as close as that of the INPS office in Forli?) and whether the explanation related to refusal of invalidity benefit on the later claims or of a separate claim to INAIL for industrial injury benefit or of sickness benefit.

26.	I do not propose to delay this case any longer by making yet further enquiries, especially as Ms Shotton in her submission dated 16 January 2002 accepted that the claimant was paid by his employer during the period in question. She then submitted that there would be reimbursement of the employer by INPS, as in British statutory sick pay, and that the substance of the claimant's submissions was not altered. I accept the statement by INPS in the letter of 2 October 1991 as being from the most authoritative source and as containing the clearest and most detailed information. Thus I conclude that for the period from 26 June 1989 to 5 July 1989 the claimant was not paid cash sickness benefit by INPS or USL in Italy, but was paid by his employer in the regular manner. What was provided by USL was health care in kind. I can only think that the claimant has become confused (or that there was some confusion in the provision of information to him) between the provision of cash sickness benefits and the provision of health benefits in kind through USL.

27.	How then does Article 40(3) of Regulation 1408/71 apply on the facts which I have found, it being agreed that the claimant cannot be entitled on the UK legislation in isolation? The qualifying conditions for its application still apply. Although the UK legislation on invalidity benefit referred to entitlement to sickness benefit for at least 168 days, that must be regarded as legislation which "makes the grant of invalidity benefits conditional upon the person concerned having received cash sickness benefits or having been incapable of work during a specified period" within Article 40(3)(a). Thus, under Article 40(3)(a)(i), periods of receipt of cash sickness benefits or of the continuation of receipt of wages in Italy must be counted for the purposes of determining entitlement to invalidity benefit. At this stage it does not matter how the payments made to the claimant from 26 June 1989 to 5 July 1989 are classified. On either alternative the period counts under Article 40(3)(a)(ii). The problem remains, as there has been no payment in Belgium or France, that that period falls a long way short of the necessary 168 days.

28.	That leads on to Ms Shotton's submission about a breach of Article 19 of Regulation 1408/71 in the withdrawal of cash benefits on the claimant's ceasing to reside in Italy. Here the new findings of fact are crucial. The first Paletta case (see paragraph 23 above) established that when an employer continues to pay wages to an employee who is ill, under legislation to that effect, the payments can be regarded as sickness benefits within Article 4(1), regardless of the fact that they might at the same time constitute pay. Nor did it matter that there was no reimbursement to the employer from the state. See paragraphs 12 to 19 of the judgment of the European Court of Justice (ECJ) in that case. The competent institution, in such circumstances, was the employer who was liable to make the payments. Thus, in the present case it does not matter that I have no evidence about the nature or terms of the Italian legislation for the continuation of wages during sickness. The payments made to the claimant during his incapacity for work by his employer, the Olimpic Hotel, were cash sickness benefits within Chapter 1 of Title III of Regulation 1408/71.

29.	However, the potential operation of Article 19 of Regulation 1408/71 is different. The competent institution was the claimant's employer. The employer's liability to continue payments of wages must have come to an end on the termination of the employment relationship with the claimant, and on that ground. Therefore the ending of those payments was not the result of applying a residence condition contrary to Article 19. Immediately on the termination of the claimant's employment, he ceased to be resident in Italy. This was at a date before point (f) was added to Article 13(2) of Regulation 1408/71. Therefore, under the rules in Ten Holder v Nieuwe Algemene Bedrijfsvereniging (Case 302/84) [1986] ECR 1821, Noij v Staatsecretaris van Financiën (Case C-140/88) [1991] ECR I-387 and Chief Adjudication Officer v Twomey (Case 215/90) [1992] ECR I-1823, R(S) 3/92, Italy would seem to have continued to be the competent State. It could not at that time have been said that the claimant had definitively ceased all occupational activity, although that has turned out to be the case. But there is no evidence before me of any separate claim to an Italian institution other than the claimant's employer for cash sickness benefits. There is positive evidence that no cash sickness benefits were paid after 5 July 1989.

30.	In my judgment, even if (which I very much doubt) the meaning of "received" in Article 40(3)(a) of Regulation 1408/71 extends to cover cash sickness benefits which ought, by virtue of Article 19 or Article 22, to have continued to be paid under an award made by the competent institution in the competent State on a change of residence, but were not in fact paid, the meaning does not extend to cover the present circumstances. The award actually made by the competent institution in the competent State ceased on grounds other than ceasing to be resident in Italy. No award of cash sickness benefits was made by any other competent institution in Italy and there is no evidence of a claim for such benefits to another such institution. The meaning of "received" cannot be stretched to cover benefits which might have been awarded despite the claimant's residence in Belgium if a claim had been made. Therefore, the claimant cannot be assisted by Article 40(3) of Regulation 1408/71 towards entitlement to UK invalidity benefit on the claim of 17 May 1993.

31.	I must finally consider Ms Shotton's submissions on discrimination and interference with the right of free movement of workers. I find the submission on discrimination hard to follow. It can only be based on discrimination on the grounds of nationality and the claimant is a British national. It is therefore hard to see how he could rely on any discrimination, if it exists, against nationals of other Member States. The discrimination was said to flow from the UK's adoption of a rule about qualifying for invalidity benefit which was in terms of entitlement for UK residents and in terms of receipt (and therefore harder to meet) for non-UK residents. It was then said that discrimination against non-UK residents was inherently more likely to affect nationals of other Member States. However, the UK did not adopt such a rule. The UK legislation imposed the test of 168 days' entitlement to sickness benefit. The claimant wished to take advantage of Article 40(3) of Regulation 1408/71 in order to meet the UK test. Article 40(3) is in terms of receipt of cash sickness benefits etc (although the not entirely consistently). In those circumstances I do not see how a complaint of discrimination against nationals of other Member States can get off the ground, quite apart from the fact that the claimant is a British national.

32.	On the issue of free movement, it is clearly established a person may complain against the state of which he is a national of the existence of an obstacle to freedom of movement. However, it is also clearly established that it is for Member States to determine the conditions governing access to their social security schemes, subject to complying with Community law. In the absence of harmonisation at Community level, the mere existence of differing conditions in the Member States, although it might inhibit some workers from moving around the Community, cannot be accepted as contravening the principle of free movement. And it is generally accepted that Member States may impose as a condition of eligibility for benefit a period of entitlement to some other contributory benefit. I do not propose to go into the vast amount of case-law on the issue. In my judgment neither that case-law nor the judgment in Terhoeve v Inspecteur van de Belastingdienst Particulieren/Ondernemingen Buitenland (Case C-18/95) [1999] ECR I-345 (which was particularly relied on by Ms Shotton in the arguments on both discrimination and free movement) establishes any principle which can assist the claimant in the present case.

33.	I am satisfied that the answers to the relevant questions of EC law are clear and that a reference of questions to the ECJ is not necessary.

34.	The result is that there is nothing in EC law to assist the claimant to qualification for UK invalidity benefit. At no date from 26 June 1989 onwards has the claimant been entitled to sickness benefit for 168 days so as to be entitled to invalidity benefit. The position is the same under the regime of incapacity benefit in force from April 1995. The claimant has never qualified for short-term incapacity benefit, so cannot move on to long-term incapacity benefit, the invalidity benefit for the purposes of Regulation 1408/71.

35.	My decision giving effect to that result is set out in paragraph 1 above.

	(Signed)   J Mesher    
	Commissioner

	Date:      16 May 2002