Introduction

 Sometimes it does not seem real. But it is. In the negotiations between the UK and the EU on a new partnership treaty, the UK Government has set out, systematically, to dismantle the structure and web of social security and healthcare rights that makes the lives of British citizens easier when they move to stay or reside in other European countries in the EU. It doing so, it has made the lives of the old, the disabled, the incapacitated, the pregnant, the bereaved, and those who care for children harder. Unlike those who move to stay or reside in an EU country at present, British citizens who do so after the end of the  Brexit transition period (31 December 2020) will find that they lack the basic structure of support for the co-ordination of social security and healthcare that they might otherwise enjoy as a result of having paid national insurance and taxes in the UK. As a result, a pensioner seeking to retire to Spain on health grounds, a disabled person seeking to holiday in Greece, a pregnant woman seeking to spend time with her family in Italy as she prepares to give birth, and a person whose children live in Portugal in a split-family situation, will suffer. What is going on?

At Present

 At present, under the EU Treaties and for those protected under the EU-UK Withdrawal Agreement, there is provision for the co-ordination of social security, healthcare, and pensions when a person moves to stay (temporarily) or reside (on a more enduring basis) in an EU country, see my Blog Post Pensions, Healthcare and Social Security for EU Citizens after Brexit: the forgotten aspect of Free Movement. However, this will not apply to those British citizens who move to stay and reside in an EU country after the end of the transition period (31 December 2020). Instead, they will depend on any new treaty negotiated between the EU and the UK.

A Tale of Two Treaties

The EU Offer

The EU has put forward a draft text for a free trade agreement that includes a protocol on social security, healthcare and pensions, see my blog post Unequal Treatment: Tracing Rights to Social Security through Brexit Legislation. Regrettably, the EU proposal itself leads to a reduction in rights as it applies to a narrow class of persons (as compared to the present situation where all publicly insured persons (and family members and survivors) are covered). Under the proposals three small classes would be protected: People (their family members and survivors):

• Whose mobility is provided for under the new draft EU-UK treaty (students, researchers, trainees, or people in youth exchange programmes)
• Certain pensioners
• People staying temporarily (e.g. as visitors or as contractual service providers)

However, the range of benefits, covered at present under EU law, is preserved. It extends to:

• sickness benefits
• maternity and equivalent paternity benefits
• invalidity benefits
• old-age benefits
• survivors’ benefits
• benefits in respect of accidents at work and occupational diseases
• death grants
• unemployment benefits
• pre-retirement benefits, and
• family benefits.

Some aspects no longer feature. For example, unlike at present there is no provision for travel for the purpose of receiving pre-arranged healthcare (the S2 scheme). In addition, the provisions for unemployment benefits and indeed for family benefits (e.g. child benefit) are more restricted. But on the other hand, other aspects are retained. For example, those in receipt of pensions from their home country, also acquire a right to healthcare in the country in which they live. It is this provision that, at present, allows British citizens who retire to Spain with UK State Pensions to receive Spanish public health care paid for by the UK (NB the cost of such care in Spain is much cheaper than if the pensioners had been treated in the UK).

The UK Offer

 The UK has put forward a separate draft treaty on social security co-ordination. It contains even much less than the draft EU treaty, and far less than the current co-ordination provisions that apply under EU law before the end of the transition period (31 December 2020) and which apply to those protected under the EU-UK Withdrawal Agreement. The UK offer only covers three small areas:

• determination of in which country social security contributions (e.g. national insurance) are to be paid
• healthcare during stays (e.g. tourist, short-term service provider, business visitor, etc.) in an EU country
• pensions (but only old age pensions not disability pensions)

No other benefits are included: there is Nothing on maternity benefits, family benefits (like child benefit), incapacity benefits, etc. The ordinary incidences of life and its risks, against which it has long been standard publicly to insure people, are simply absent. As a result, British citizens, not high earners but people leading ordinary working lives, have fewer options as regards work and residence in neighbouring countries in the European region. Without deep pockets, having already paid into the UK social security system,  and otherwise unable to insure against social security risks, such people are forced to see the UK as their only option as a country of residence. They become confined.

Disabled people, those receiving UK pensions or benefits for incapacity are particularly badly hit: there will no longer be an entitlement to public healthcare in the country of residence; no ability to export Personal Independence Payments, Attendance Allowance, etc; and no way of aggregating social security contributions (like national insurance) paid in more than one state together to get a UK contribution-based benefit for incapacity when later resident in the UK.

Nor will  old age pensioners (receiving a UK State Pension but residing in an EU country) benefit from access to public healthcare in their country of residence (as they do at present), see my blog posts Healthcare Arrangements after Brexit: What we are about to lose and Healthcare Arrangements after Brexit: Loss of Rights to Reimbursement for Treatment and for Prescriptions.

The UK Government has choices:

• It can see the provision of healthcare and social security rights for British citizens who stay and reside in an EU country as something to be preserved, advanced, and entrenched. If it is not for its own British citizens and its purpose is not to make their lives better and easier: who exactly is it for and for what purpose?
• If it is unmotivated by care for its own citizens, it could nonetheless see that provision of social security and healthcare rights for old aged pensioners and the disabled as a good deal as, generally, it is cheaper to provide for such British citizens in Spain, Cyprus, etc. than in the UK. Such a stance would be cynical, perhaps selfish, but not unprecedented.
• It could see that a co-ordinated regime that allows for the aggregation of social security contributions so that they feed into the full range of possible social security benefits provided to ameliorate risks to workers and their families, makes the UK a good place for multinational European businesses to locate staff (even if there is a need to get Work Permits under UK immigration rules from 2021) or at least  neutralises the fact that all 27 EU countries as well as EEA countries still have this attractive feature and are competing with the UK as business locations.
• Or it can abandon the gains of the last fifty years and assume the ostrich position as regards the world beyond its shores and the prospects for its own citizens outside its territory, as it appears set on doing.