Subject: Care allowance for Slovak migrant workers living in Austria
When her child (born in 2009) was diagnosed with a serious disability, the Slovak mother applied to the Austrian authorities for a childcare allowance. The Slovak family has their permanent residence in Austria. The parents were working in Slovakia. The father continues to work, while the mother cares for the child. The family is insured in Slovakia and in Austria (E106 form). The child has received healthcare on several occasions in Austria.
The Austrian authorities rejected a request for this allowance in 2017 and referred the family to the Slovak authorities. Slovakia has not granted the claim on the grounds that it only grants care allowances to persons who live in Slovakia (EU Court of Justice, C-433/13) 1 . A subsequent application in Austria was rejected by both the national authorities and the court.
The family asked for advice on how to proceed, i.e. in which jurisdiction to claim and what benefits are available, from SOLVIT Slovakia. SOLVIT Slovakia stated that it is ‘not an advisory or information network’.
The allowance in question exists in both Member States. The family pays health insurance and social security contributions, and the mother cares for a child with a severe disability. Entitlement would probably be determined in one of the Member States if neither of the parents worked.
Was the procedure used by the Slovak and Austrian authorities correct?
Is it possible that the family is not entitled to care allowance in any Member State?
Did SOLVIT Slovakia proceed correctly when it rejected the request for any assistance?
http://curia.europa.eu/juris/document/document.jsf?text=&docid=167823&pageIndex=0&doclang=EN&m ode=lst&dir=&occ=first&part=1&cid=3684908.
Answer given by Mr Schmit on behalf of the European Commission
(23 January 2020)
Regulation (EC) No 883/2004 on the coordination of social security systems neither harmonises nor determines the details of the Member States' national social security systems. Member States are free to organise their social security systems.
The information received is not sufficient to assess whether the benefit in question falls or not under the regulation (EC) No 883/2004. If the care allowance constitutes a sickness benefit (2) within the meaning of this regulation, the insured person receives the cash benefit from the competent Member State regardless of whether s/he resides. Otherwise, if the care allowance is equivalent to social assistance (for instance, it fulfils the characteristic of a special non-contributory cash benefit (3)), then it is granted by the competent Member State to the insured person as long as s/he resides in its territory. The Commission would need further information in order to determine which case applies.
Given the disparities between the national social security legislations, it cannot be excluded that moving from one Member State to another may bring about certain disadvantages for the insured person in terms of entitlements and contributions in a particular case.
Solvit is a problem-solving network of centres set up by Member States. It provides an informal means of resolving difficulties citizens and businesses face in exercising their rights in the single market, provided these are not, or have not been, subject to legal proceedings. Since the family concerned had commenced legal proceedings and had obtained a judgment of an Austrian court on the matter about which they complained, the Slovak Solvit Centre was unable to assist them.
⋅1∙ http://curia.europa.eu/juris/document/document.jsf?text=&docid=167823&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3684908.
⋅2∙ Article 21 of Regulation (EC) 883/2004.
⋅3∙ Article 70 of Regulation (EC) 883/2004.