Professor Tamara Hervey from the University of Sheffield examines the healthcare entitlements, if any, provided by the EU-UK Trade and Cooperation Agreement (TCA) that was provisionally agreed upon on December 24, 2020.

Introduction

The TCA includes provisions for social security coordination, similar to EU law but considerably weaker. These provisions are found in Heading Four and are not typical of standard trade agreements like CETA.

Many are interested in the future of the European Health Insurance Card (EHIC) scheme, as private travel insurance is often expensive or inaccessible, particularly for the elderly. The EHIC’s impact on travel insurance premiums makes it a significant factor for individuals who regularly visit family and friends in the EU or UK.

To understand the future of EHIC, it’s crucial to analyze the legal text meticulously. This involves examining the relevant sections of the main agreement, a dedicated protocol, and various annexes.

Interpretation and Enforcement

The TCA’s sections on social security coordination are intricate and open to interpretation. The analysis presented here represents a preliminary understanding and could be subject to change. The ambiguity stems partly from the inherent complexity of EU law, the Withdrawal Agreement, and their influence on this agreement. It’s important to note that the Withdrawal Agreement remains effective separately, covering the rights of EU citizens in the UK and vice versa.

The TCA’s preamble highlights the human aspect of social security coordination, emphasizing its significance for individuals moving between the UK and EU for work, residency, or temporary stays, as well as their families. Notably, it extends beyond those relocating for economic reasons.

When interpreting the agreement, the preamble serves as a vital reference. The EU-UK Trade Agreement must be interpreted in line with international law, taking into account the context and overall objectives. The interpretation of social security coordination may differ between the UK and EU member states, as there’s no overarching judicial body like the Court of Justice of the EU or the EFTA Court to ensure uniform interpretation.

The agreement will be interpreted by the respective courts of the UK and EU, subject to the treaty’s dispute settlement mechanism.

Both the EU and UK are obligated to align their social security systems as outlined in the Protocol on Social Security Coordination. Article 488 emphasizes that this coordination aims to “secure the social security entitlements of the persons covered therein.”

Unlike other parts of the agreement, this section focuses on individuals. Typically, the TCA doesn’t confer rights or impose obligations on individuals or entities, nor can it be directly invoked in domestic legal systems. The agreement functions as an international law instrument, binding the signatory parties (EU, its member states, and the UK). This differs significantly from EU law and the Withdrawal Agreement, which contains provisions for citizens’ rights and specific enforcement measures.

Each party’s domestic legal system must safeguard the social security rights stipulated in the agreement. The agreement mandates that individuals and companies should be able to invoke its provisions in domestic courts, tribunals, and administrative bodies to seek “adequate and timely” remedies for any breaches. The use of “and” suggests that both judicial and administrative avenues must be available for enforcing social security coordination rights, implying that an administrative-only process (e.g., Ombudsman) wouldn’t suffice.

Within the UK, the Social Security and Child Support Tribunals are likely to handle the process of safeguarding individual rights, with appeals going to the Upper Tribunal (Administrative Appeals Chamber). Notably, the draft UK bill incorporates the TCA’s social security provisions directly into UK law.

Who is Covered?

The Protocol on Social Security Coordination applies exclusively to “situations arising between one or more Member States of the Union and the United Kingdom” (Article 490(1)). Situations confined solely to the UK or the EU fall outside its purview. However, the scope of this rule remains undefined.

It’s plausible that engaging in activities covered by the agreement’s provisions on services, such as being a business visitor, service supplier, or intra-corporate transferee, would place an individual within the protocol’s scope. Similarly, individuals traveling for non-economic reasons, like tourism or visiting family, under the visa-free travel provision, could also be covered.

This aspect resembles the free movement of persons, a cornerstone of the internal market according to the EU. However, it’s arguable that social security coordination, while facilitating free movement, isn’t inseparable from the internal market in the way that EU law provisions on entry, residence, or non-discrimination are. The agreement’s inclusion of provisions on entitlement to social security benefits during stays in the UK or EU supports this interpretation.

The protocol’s definition of coverage draws from EU law on social security coordination, encompassing individuals “subject to” the social security legislation of one or more states (UK or EU member states), along with their families and survivors. The term “subject to” remains undefined in the agreement, Withdrawal Agreement, and EU law.

While being “subject to” is clear in cases of paying social security contributions or receiving benefits, it’s less so in other situations. The agreement does include provisions for disagreements regarding an individual’s coverage.

The agreement specifies that the protocol primarily applies to lawful residents of the UK or an EU member state. However, this doesn’t affect “entitlements to cash benefits which relate to previous periods of legal residence.” This means individuals who are no longer lawful residents but are entitled to benefits like pensions under the agreement, even if residing outside the UK or EU, are still covered.

What is Covered?: General Rules

The Protocol on Social Security Coordination covers major branches of social security addressed in EU law and the Withdrawal Agreement, including “sickness benefits” like medical treatment. Similar to those legal frameworks, medical assistance is not covered, nor is voluntary social insurance unless it’s the sole scheme for a particular branch in the relevant state. “Assisted conception services” are also excluded. Notably, Article SSC.5 explicitly exempts the exclusions listed in Article SSC.3 (4) from the general non-discrimination principle.

EU member states and the UK retain the right to levy a health fee for applications related to entry, stay, work, or residence. However, given the continuation of visa-free travel for short-term visits between the UK and EU member states, at least initially, this provision seems applicable only to residence or work permit applications, not visitor entry or short-term visits.

The protocol generally operates on the principle of non-discrimination between EU member states. However, this doesn’t affect the Common Travel Area arrangements between the UK and Ireland. UK nationals will still need an EHIC or proof of UK residence to access Irish state healthcare. This continuation of existing rules from January 1, 2021, is confirmed on the UK government website.

In principle, individuals covered by the protocol have the same benefits and obligations as nationals of the relevant state. The protocol emphasizes “equal treatment of benefits, income, facts, or events.”

This has two main implications. First, if receiving social security benefits or income has legal consequences in one state, that state must recognize equivalent benefits or income acquired under another state’s legislation. Second, if legal effects arise from events in one state, that state must consider “like facts or events” occurring in another state as if they transpired within its own territory. Generally, the protocol requires aggregating periods of social insurance, employment, self-employment, or residence across signatory states. Annex SSC-7 provides specifics on these aggregation rules. Furthermore, receiving cash benefits under the protocol cannot be contingent on residency. These provisions align with the Withdrawal Agreement and EU law.

As in the Withdrawal Agreement and EU law, the “single state rule” applies, meaning individuals are generally subject to the legislation of a single state. Employment or self-employment takes precedence, with residency considered only in their absence. Individuals employed or self-employed in a particular state are subject to that state’s social security legislation. Specific rules exist for those typically employed in both the UK and one or more EU member states. Essentially, residency in the location where a significant portion of work is performed determines the relevant state. If that’s unclear, the employer’s registration place or the “center of interest” for self-employed individuals applies. Clearly, these rules are open to interpretation in specific situations.

For those neither employed nor self-employed, residency (defined as “where the person habitually resides”) determines the relevant state. Annex SSC-7 outlines the criteria for determining residence. Exceptions apply to individuals working on ships and aircraft.

Like many international agreements, the protocol allows signatory states to deviate from its general terms under specific circumstances. Member states can derogate from the single state rule for “detached workers” – those sent by their employer in one state to work temporarily in another, or self-employed individuals temporarily pursuing similar activities in another state. The agreement lacks a definitive list of these member states.

Article SSC.11 mandates that the EU inform the UK about each member state’s stance on derogation from the general rules determining the state responsible for social security by the time the agreement takes effect. This categorization includes: A: member states wishing to derogate; B: those not wishing to derogate; or C: those undecided. This list, categorized as Annex SSC-8, will be established upon the agreement’s entry into force.

Categories B and C will cease to exist one month later. Member states in category C will be treated as category A for one month, after which they can officially join category A through notification to the Specialised Committee on Social Security Coordination. Member states can also leave category A in the future through the same mechanism. Transitional rules for “detached workers” will apply for 24 months in category A member states.

This exemplifies how aspects of Brexit remain unfinished.

What is Covered? ‘Sickness Benefits’

The protocol dedicates Title III to specific provisions for each benefit category, with Chapter 1 focusing on sickness benefits. Similar to EU law, separate rules apply to “insured persons” (those subject to the social security legislation of the “competent state” and their families) and pensioners and their families.

“Insured persons” and their families residing in a state other than the competent state are eligible for “sickness benefits in kind” provided by the “institution of the place of residence,” as if insured under that state’s legislation. This category includes frontier workers (residing in one state and working in another, subject to specific rules), posted workers (temporarily assigned to work in another state), and individuals returning home for intervals exceeding one week (falling under the frontier worker definition).

Therefore, if someone is considered “resident” in the UK under UK legislation and therefore entitled to NHS healthcare due to employment or self-employment in the UK, but is also deemed “resident” in Spain according to Spanish legislation, this provision grants them access to Spanish healthcare as if they were insured under Spanish law. These provisions closely mirror those in EU law.

Articles SSC.17 and SSC.25 address “stays” outside the competent state, similar to the EHIC provision in EU law. This entitles insured persons and their families staying in a state other than the competent state to healthcare deemed medically necessary during their stay. The healthcare provider in the state where care is sought determines this necessity, considering the nature of treatment and the stay’s duration. Article SSC.17 and SSC.25 don’t cover individuals traveling explicitly to receive healthcare or treatment, except for passengers or crew members falling ill during a voyage or flight. These provisions closely resemble those in EU law.

The competent state must fully reimburse healthcare provided under these provisions. Unlike EU law, individuals seeking healthcare during a stay outside the competent state must present a “valid entitlement document.” Appendix SSCI-2 details this document’s requirements.

For EU member states, the valid document mirrors the EHIC, adhering to the technical specifications outlined in relevant EU law. For the UK, the document must include the holder’s surname, forename, personal identification number, date of birth, document expiry date, the code “UK”, the issuing UK institution’s identification number and acronym, the document’s logical number, and for provisional documents, the issue date, delivery date, and the UK institution’s signature and stamp.

The UK must promptly inform the Specialised Committee on Social Security Coordination about the UK document’s technical specifications.

The UK government’s website confirms that individuals with valid EHICs can continue using them from January 1, 2021, to access necessary healthcare during visits to EU countries. For Norway, Iceland, Liechtenstein, and Switzerland, a new GHIC (UK Global Health Insurance Card) is available. EHIC holders can apply for a free GHIC upon expiry.

Appendix SSCI-2 clarifies that Article SSC.17 entitlements include treatment for pre-existing and chronic conditions, as well as pregnancy and childbirth-related care, unless the trip’s primary purpose is to receive these treatments. However, vital treatment available only at specialized facilities requires prior authorization. This includes (but is not limited to) kidney dialysis, oxygen therapy, specific asthma treatments, echocardiography for chronic autoimmune diseases, and chemotherapy.

Therefore, certain treatments previously covered by the EHIC scheme will now require authorization from the relevant state (UK or EU member state), such as UK patients needing dialysis in EU member states. As of now, the UK hasn’t specified whether or under what conditions such treatments would be authorized.

As in EU law, the agreement allows for authorizing medical treatment in another state. The UK seldom utilized this provision as an EU member state, unlike countries like Malta. If authorized, the healthcare institution in the destination state must provide treatment as if the individual were insured in that state. Similar to EU law, authorization is essentially mandatory if “the treatment in question is among the benefits provided for by the legislation in the State where the person concerned resides and where that person cannot be given such treatment within a time limit which is medically justifiable, taking into account their current state of health and the probable course of their illness.” This also applies to family members of the insured person, with provisions for situations where family members reside in different states.

This provision, known as the “S2” in EU law, while rarely used between Great Britain and the EU, facilitates healthcare access for several hundred individuals annually across the Northern Ireland-Republic of Ireland border. The “medically justifiable” time limit for receiving treatment is naturally contentious. During the UK’s EU membership, legal challenges based on EU law led some English NHS trusts to reduce waiting times for elective procedures like hip replacements. Ongoing litigation in Northern Ireland challenges the NHS there for breaching waiting time limits, partly relying on EU law. The COVID-19 pandemic could lead to further legal action before domestic courts, relying on domestic legislation implementing the agreement rather than the agreement itself.

Article SSC.19 addresses states providing cash benefits instead of benefits in kind for healthcare, mirroring the relevant provision in EU law.

Implementation, Administrative Arrangements, and Dispute Settlement

Annex SSC-7 outlines the practical implementation of the social security coordination provisions. The UK and EU member states are obligated to “provide or exchange all data necessary for establishing and determining the rights and obligations of persons” covered by the protocol “without delay.” The Specialised Committee on Social Security Coordination can authorize using the EU’s Electronic Exchange of Social Security Information system for data exchange. If approved, the system’s rules (governed by EU law) will apply.

The agreement mandates providing necessary information for individuals to assert their rights under the protocol and annex. Information must be shared, and documents issued promptly, adhering to any time limits set by national legislation. If benefits are refused, reasons must be given, along with information about remedies and appeal deadlines.

In case of disagreements between states regarding applicable legislation or the competent state responsible for providing benefits, the agreement requires provisional application of one state’s legislation. For determining applicable legislation, this is the state where the individual is employed or self-employed, if applicable. If working in multiple states, including their state of residence, or if neither employed nor self-employed, the state of residence applies. In other cases involving work in multiple states, it’s the state where the claim was first submitted.

For determining the competent state, the legislation of the individual’s residence applies. If they don’t reside in any of the states involved, they’re provisionally entitled to benefits under the legislation of the institution where the request was initially submitted. These measures prevent individuals from being left in limbo while complex cases are resolved.

States can bilaterally agree to deviate from the Annex’s procedures, provided this doesn’t negatively impact individuals’ rights. Such bilateral procedures must be reported to the Specialised Committee on Social Security Coordination and listed in Appendix SSCI-1 for transparency. Pre-existing bilateral agreements serving similar purposes will remain effective but must also be listed in Appendix SSCI-1.

Finally, the agreement establishes a Specialised Committee on Social Security Coordination to address matters related to Heading Four and the protocol, along with provisions for parliamentary cooperation and civil society involvement. These mechanisms are crucial for overseeing compliance, addressing divergent interpretations, and providing a platform for legal contestation, given the absence of a supervisory court.

The Specialised Committee can monitor the agreement’s implementation, adopt decisions (including amendments) and recommendations, discuss technical issues, facilitate information exchange and best practice sharing, establish working groups, and provide a forum for consultation as part of the dispute settlement process.

The Specialised Committee on Social Security Coordination is empowered to issue non-binding recommendations and make binding decisions by mutual consent. For instance, the committee will decide on “the structure, content and format of forms and documents” used for implementing the protocol. It’s also tasked with reconciling differing views on “information provided by the persons concerned, the validity of a document or supporting evidence or the accuracy of the facts on which the particulars contained therein are based.”

While the agreement’s general dispute settlement provisions apply to social security coordination, they don’t cover individual cases. Importantly, even if a complaint about a breach is successful, retaliatory suspension of the social security provisions is not allowed. This also applies to successful complaints regarding Withdrawal Agreement breaches. This highlights the distinction between international law and EU law.

Conclusion

The agreement offers a better outcome than a no-deal scenario at the end of the transition period for those relying on EU law for healthcare access in the UK or EU.

UK and EU residents retain access to healthcare in each other’s territories on the same basis as national residents. Visitors retain a form of EHIC entitlement.

The key difference lies in the legal basis of these rights and the implications for their enforcement. As long as parties fulfill their obligations, the system should function smoothly.

Barnard & Peers: chapter 27

Photo credit: Health Europa