Legal Aspects of Cross-Border Rehabilitation to Work
| Author | Thomas Erhag |
| DOI | 10.1177/138826270500700203 |
| Published date | 01 June 2005 |
| Date | 01 June 2005 |
| Subject Matter | Article |
LEGAL ASPECTS OF CROSS-BORDER
REHABILITATION TO WORK
Thomas Erhag*
Abstract
This paper describes the legal situation of European migrant workers who are in need of
rehabilitation. For the sick or disabled migrant worker, living in one country and
having his/her workplace in another, rehabilitation often raises complicated issues
which have to be solved by an equally complex framework of legal rules. In this article,
Sweden-Norway is used as a cross-border example to illustrate the problems faced by
an insured person and by the social security administration during rehabilitation. The
legal problems are basically attributable to differences between social security systems
within the EU.
Rehabilitation cases are complicated by the fact that the support an individual needs is
often not a single benefit. Instead rehabilitation involves a variety of different benefits
regulated by different legal instruments. EC Reg. 1408/71 aims to co-ordinate and
safeguard the social security rights of migrant workers. However, legal rehabilitation
tools, such as sickness and health care benefits, are co-ordinated according to different
criteria and special rules covering rehabilitation are not found in the regulation. This
leads to a situation where a migrant worker can have the right to cash benefits from one
country and health care benefits from another. The result is sometimes confusing, both
for the individual and for the administration. The article explores and analyses this
confusing situation, paying special attention to the question of legal certainty for the
migrant worker.
European Journal of Social Security, Volume 7 (2005), No. 2 139
* Dr Thomas Erhag is a Researcher and Lecturer in the Department of Law, School of Business,
Economics and Law, Go
¨teborg University, PO Box 650, SE-405 30 Go
¨teborg, Sweden; e-mail:
Thomas.Erhag@law.gu.se The research presented here was carried out within the research
programme on ‘Rehabilitation and the EU’, financed by the Swedish Council for Working Life
and Social Research (FAS) on which the author works with Professor Lotta Vahlne Westerha
¨ll and Dr
Sara Stendhal.
140 Intersentia
1. INTRODUCTION
1.1. ‘SECTORISATION’ IN REHABILITATION TO WORK
In the border regions between Sweden and Norway, an increasing number of peop le
are migrating or undertaking cross-border work. From a free movement perspective,
this is of course excellent, but the increasing number of migrant and cross-border
workers puts pressure on administrative structures e.g. those involved in the
administration of social security.
In this article, I describe and analyse the legal situation of migrant workers who are
in need of rehabilitation to work.
1
For the sick or disabled migrant worker,
rehabilitation often raises complicated issues which have to be solved by an equally
complex framework of legal rules. However, the complexity does not always lie within
a single national social security system. Instead the migrant worker often has to deal
with two equally complex and ‘sectorised’ social security systems. Sweden-Norway is
used as a cross-border example to illustrate the problems faced by an insured per son
and by the social security administration during rehabilitation. I explore how the legal
framework provides for and co-ordinates rehabilitation in cross-border situations and
attempt to analyse whether the answers provided by the legal system reflect the
principle of legal certainty. It will be shown that it is very difficult both for insured
persons and for the administration to fully predict the outcome of sickness or injury.
The result is often dependent on the active work undertaken by administrative
personnel in social insurance offices.
Rehabilitation cases are complicated by the fact that the support an individual
needs is often not a single benefit. Instead rehabilitation involves a variety of different
benefits regulated by different legal instruments. Important elements are different cash
benefits and health care benefits in kind. The main legal instruments for solving this
situation are Regulation 1408/71 together with national social security legislation.
2
Thomas Erhag
1
For the purposes of this paper, ‘rehabilitation to work’ is defined as measures which make it easier for
people in receipt of long-term sickness or invalidity benefits (a disability pension or income-related
benefits for long-term sickness or disability) to return to their previous employment or some other
employment.
2
A new Co-ordination Regulation 883/2004 was adopted by Parliament and Council in April 2004 but
is not yet applicable. OJ L 166, 30.4.2004, pp. 1-123. The objective of the proposal was to create
simpler rules as the former regulation had for a long time been criticised for being very complicated.
In quantitative terms the new regulation is about one-third as long as the old regulation and uses
much less complicated language. The new regulation also contains some new provisions that will be
discussed in this article. One such material change is that the family of the frontier worker will be able
to opt for sickness benefits in kind from the competent state, Art 18.2 and Art 19.1 in Regulation 883/
2004.
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