Brian Cave (Pensioners Debout!),

le Fourquet, 46300, Gourdon, France

Tel: (0033) (0) 5 65 41 42 69

E-mail  lefourquet@orange.fr

Web page -  http://www.lefourquet.net/

Blog site   http://pensionersdebout.blogspot.com/

 

August 20th 2010

 

 

Department  of Health,  Richmond House, 79. Whitehall,

London, SW 1A 2NS.

 

Dear Nicolette Hartnell,

I have your latest letter  of the 6th August  at hand.

The information transmitted to you by officials in the Department of Health is inaccurate.  I have read  all relevant Chapters and Articles of EU Regulation 883/2004 which came into force on May 1st last and also the implementing regulations to the same (2006/0006) COD.    I have also consulted with the Legal Advisor to the Spanish British Expatriates  Association, Mr. David Burrage, who is a well known authority in EU law. 

Among a fuller argument, Mr. Burrage has made the following observations to me.

** Ms. Hartnell is wrong because she has failed to properly understand that which she had pasted from Article 24, which must be properly read inter alia with certain of the other articles of those regulations. In reading only one of the Articles of the regulations (883/04) in isolation she has not looked at Article 35. ”Where benefits in kind provided by the institution of another Member State under this Chapter (This refers to Chapter 1 which includes the said Article 24) shall give rise to full reimbursement…”**

Note well.. This Article states FULL reimbursement, not with some reduction.

Further, the implementing Regulations spell out the circumstances without any doubt whatsoever.

Chapter I

Reimbursement of the cost of benefits in application of Article 35 and Article 41 of the basic Regulation

SECTION_ 1

REIMBURSEMENT OF THE BASIS OF ACTUAL EXPENDITURE

Article 62     Principles

1. For the purposes of applying Article 35 and Article 41 of the basic Regulation, the actual

amount of the expenses for benefits in kind, as shown in the accounts of the institution that

provided them, shall be reimbursed to that institution by the competent institution, except

where Article 63 of the implementing Regulation is applicable.

 

Article 63 concerns only the countries listed in Annex 3.  It states

1. The Member States referred to in Article 35(2) of the basic Regulation, whose legal or administrative structures are such that the use of reimbursement on the basis of actual expenditure is not appropriate, are listed in Annex 3 to the implementing Regulation.

France is not listed in Annex 3.  France now has determined (viz. your previous letter) to ask for reimbursement of the actual cost, which, we must suppose is  AS AT THE POINT OF DELIVERY, as indicated in the paragraph above (in red)  ‘as shown in the accounts of the institution that provided them.’

 

*****

Your interpretation of Article 24 (or that of the DoH officials) conflates ‘provision of care’ with ‘payment for that care’.  These are separated within the Article 24.

Article 24 paragraph 1  establishes the procedure of care in that the British pensioner should receive the same attention as a French Pensioner.  

Article 24 paragraph 2.a. states quite clearly that the competent State (UK-NHS) must pay for that care.  And Article 35 states that it is the FULL cost which is to be reimbursed.

 

*****

The French Citizen.

As a background to the remarks concerning care I observe that French Citizens are required to pay to some extent only according to their circumstances.  Quite a few pay no part of the costs of approved treatment (CMU regulations).

All approved costs pass through the system known as the Carte Vitale.  The offices of the Caisse Primaire d’Assurance Maladie (CPAM)  in each main town sort out who pays what part of the full cost which is demanded  in some manner at the point of treatment.  Those French patients who find it in their interest to have an approved Mutuelle Assurance [there are many such ‘mutuelles’] will have certain proportions of the cost forwarded to the ‘Mutuelle’ by the CPAM offices.  All the information regarding who has 100% or 80% or whatever cover for this and that  is held on a micro chip on the Carte Vitale.

 

 

In the circumstances that relate to the British Pensioners then it should be the case that the CPAM will transmit the full actual 100% cost to the UK-NHS.  The Carte Vitale could easily carry this information.

 

It is my considered belief, after a study of the statistics sent to me from your Department  that such costs will be considerably less by an amount of £millions than the French have asked of the UK in previous years.   This analysis  was sent to you some months ago in a dossier compiled by myself.

*****

It is necessary that the French CPAM service, who as I say, control the contents of the Carte Vitale chip ensure that each S1 (E121) holder updates their Carte Vitale to carry the information that all approved health treatment is 100% covered at the point of  its provision.

Machines exist at all major pharmacies where these Carte Vitales can be updated,

 

The following sentence may help if you are in contact with the appropriate French Authorities.

Il faut que les bureaux de CPAM prennent des mesures pour que leurs dossiers soient mis à jour et assurer que les frais entiers soient transmis au Royaume Uni, et de rappeler aux titulaires de S1 ou de E121 de mettre à  jour leur  Carte Vitale  à la pharmacie.

Translation- It is necessary that the offices of the CPAM take measures that their dossiers are updated and to ensure that the entire costs -are transmitted to the United Kingdom, and to remind the holders of the  S1 or E121 to update their Carte Vitale at the local pharmacy.

 

***************

I now turn to the errors expressed in your third paragraph –‘State Pensioners…etc.

This of course refers to holders of the EHIC (British) resident in Britain and who may visit any country of the EEA, whether they be pensioners or actively economic persons. 

In that the UK is the competent State for the payments of Health Costs for the holders of the S1 (E121) and the EHIC  there is some common ground  between these.  I myself have an E121 and an EHIC issued by Britain.

 

My legal advisor draws attention to the ‘Considered Opinion of the Advocate General EU’ on this matter which relates to the EHIC.

You may view this document via the following link  http://lefourquet.net/EHICOpAdGenSpain.pdf

It is the advice of the Advocate General to the European Court of Justice following an infringement opened by the EU Commission.  In para. 16 of his opinion. "The infringement procedure was triggered by a report from a French citizen, Mr Chollet, who is resident in Spain and insured with the Spanish social security system. Mr Chollet complained that, as a result of hospital treatment that occurred during his stay in France, the competent Spanish institution had rejected his application for refund of the percentage of the costs charged to him by the institution in the place of stay in accordance with French legislation (the ‘ticket modérateur’)

As Mr. Burrage writes.. “Whilst that matter relates to the use of the EHIC, there can be no distinction drawn between active citizens and State pensioners when exercising their right of free movement, save where under certain conditions as a cross border worker they are permitted to return to their competent State for pre-planned treatment without permission.  

Community law is quite clear in this matter and the Advocate General found in favour of Mr. Chollet.

The reimbursement of any additional cost does not draw any distinction between active citizens and State pensioners. Indeed, State pensioners had a far greater right in respect of health care following the ECJ case of 25 February 2003 - Idryma Koinonikon Asfaliseon (IKA) v Ioannidis (Case C-326/00). 

The effect of this ruling was harmonized by Regulation 631/04 which amended Regulation 1408/71 so that from 1 June 2004 all different categories of insured persons (workers, self-employed workers, pensioners, students, …) have the same entitlements to necessary health care during a temporary stay in another Member State".  

****************

It is necessary that you give this matter the most serious and detailed attention it deserves.

I await a far more considered answer.

 

 

Yours sincerely,

 

 

 

 

 

Copy to Mark Harper M.P.