C-43/99

OPINION OF MR JACOBS — CASE C-43/99

OPINION OF ADVOCATE GENERAL JACOBS delivered on 15 February 2001 1

I - 4268

LECLERE AND DEACONESCU

following summary is accordingly based on 8. The antenatal, childbirth and postnatal the Law as amended. allowances each consist of a single pay- ment. The antenatal allowance is payable to the mother-to-be; the childbirth and postnatal allowances are paid to the mother if, as in the present case, the parents live together. 3. The Law divides the childbirth allow- ance into three instalments, namely the antenatal allowance, the childbirth allow- ance proper and the postnatal allowance.

4. Each allowance is payable only on condition that certain medical examina- Maternity allowance tions have been carried out. Those exam- inations are listed in paragraphs 46 to 48 below.

9. The maternity allowance is provided under the Law of 30 April 1980. That law has also been amended by the Law of 5. The antenatal allowance is paid only if 31 July 1995 following the judgment in the mother-to-be is officially resident in Commission v Luxembourg, which ruled Luxembourg at the time of the last medical that the original requirement for the examination. mother to have been officially resident in Luxembourg for the whole year preceding the date on which entitlement to the allowance arose was discriminatory and hence unlawful. For the reasons given 6. The childbirth allowance is paid after above, I am assuming that the Law as the birth of the child provided that the amended is the applicable version. mother is officially resident in Luxembourg at the time of the birth and that the child is born on Luxembourg territory (or else- where during a temporary absence of the mother).

(ii) family allowances means period- 11. Created by the Law of 1 August 1988, ical cash benefits granted exclu- the child-raising allowance is payable to sively by reference to the number every person who is officially resident in and, where appropriate, the age of Luxembourg, actually resides there and members of the family'. brings up at home one or more children in respect of whom family allowances are paid to the applicant or his or her spouse. The allowance is payable from the first day of the month following the end of the mother's maternity leave or from the end of the mother's entitlement to maternity allowance and ends on the first day of the month after that in which the child reaches two years of age. The allowance is a fixed 13. Annex II includes in Section II 'Special amount regardless of the number of chil- childbirth allowances excluded from the dren raised at home. scope of the regulation pursuant to Arti- cle 1(u)' under 'I. Luxembourg':

Community legislation

'(a) antenatal allowance; 12. Article 1 of Regulation No 1408/71 provides:

'(u) (i) family benefits means all benefits in kind or in cash intended to meet (b) childbirth allowance.'

I - 4270

LECLERE AND DEACONESCU

1 7 . A r t i c l e 10a of Regulation No 1408/71 6 provides:

'This Regulation shall also apply to special non-contributory benefits which are provi- ded under legislation or schemes other than those referred to in paragraph 1 or exclu- 'Special non-contributory benefits

5 — Council Regulation of 30 April 1992, OJ 1992 L 136, p. 1. 6 — Inserted by Regulation No 1247/92, cited in note 5.

I - 4271

OPINION OF MR JACOBS — CASE C-43/99

1. Notwithstanding the provisions of Arti- 19. Article 73 provides: cle 10 and Title III, persons to whom this Regulation applies shall be granted the special non-contributory cash benefits referred to in Article 4(2a) exclusively in the territory of the Member State in which they reside, in accordance with the legisla- tion of that State, provided that such benefits are listed in Annex IIa. Such ben- 'An employed or self-employed person efits shall be granted by and at the expense subject to the legislation of a Member State of the institution of the place of residence. shall be entitled, in respect of the members of his family who are residing in another Member State, to the family benefits pro- vided for by the legislation of the former State, as if they were residing in that State, subject to the provisions of Annex VI.'

2. Benefits shall be granted in accordance with the following rules, irrespective of the 2. He shall enjoy the same social and tax Member State in whose territory the pen- advantages as national workers.' sioner or the children are residing:

(a) to a pensioner who draws a pension under the legislation of one Member The facts and the main proceedings State only, in accordance with the legislation of the Member State respon- sible for the pension'.

28. The applicants appealed unsuccessfully to the Conseil Arbitral des Assurances Sociales (Social Insurance Arbitration Board) and thence to the Appeals Board, which stayed the proceedings and referred 26. Following the birth of their son, the the following questions to the Court of applicants have received no childbirth, Justice: maternity or child-raising allowances in Belgium. It appears that Mr Leclere has exhausted every remedy available on the matter in Belgium and that he has no claim under Belgian legislation since he was not subject to Belgian social security and the Convention between Belgium and Luxem- '1. Are Articles 1(u)(i) and 10a and bourg on the social security of frontier Annexes II and IIa of Regulation workers of 16 November 1959 applied (EEC) No 1408/71, which lay down only to employed persons and persons the principle of the non-exportability assimilated thereto and not to non- of childbirth and maternity allowances, employed recipients of an invalidity pen- consistent with Articles 48 and 51 of sion. Had his child been born three months the EC Treaty? later, Mr Leclere would have benefited from the new Convention of 24 March 1994, which entered into force on 1 June 1995 and which applies to former frontier workers and recipients of a pension.

2. Is Regulation No 1408/71 to be inter- preted as meaning that, in respect of dependent children, it grants workers in receipt of an invalidity pension who reside in a different country from that which pays the invalidity pension, 27. The applicants' claims for the award of allowances connected with the birth of a child (antenatal, childbirth, postnatal, 8 — The applicants' claim for child benefit was however successful, and they have been receiving such benefit from maternity and child-raising allowances) the National Family Benefits Fund from 1 March 1995.

5. Is Article 7 of Regulation No 1612/68 to be interpreted as meaning that the 31. In that case, where it was accepted by recipient of an invalidity pension or his the parties that all three allowances were spouse may, on the basis of that article, social advantages within the meaning of enjoy social advantages which are Article 7(2) of Regulation No 1612/68, the d e n i e d him by R e g u l a t i o n Court ruled that that residence requirement No 1408/71, notwithstanding the prin- was discriminatory since it was in practice ciple of non-exportability laid down more easily met by Luxembourg nationals therein in the event that that principle is found by the Court to be compatible with the EC Treaty?' 9 — Cited in note 4.

I - 4275

OPINION OF MR JACOBS — CASE C-43/99

than by nationals of other Member States; raised: the issue before the Court was it was hence contrary to both Article 7(2) rather the position of persons moving to of Regulation No 1612/68 and Article 52 Luxembourg in the course of the year of the Treaty (now, after amendment, preceding the birth of a child. Article 43 EC). With regard to the mater- nity allowance, the Court added that the residence requirement was also incompati- ble with Article 18(1) of Regulation No 1408/71, which requires account to be taken of periods of residence completed under the legislation of any other Member State. The first question referred

I - 4276

LECLERE AND DEACONESCU

and Annex II, exclude the specified special virtue of Article 1(u)(i), fall outside the childbirth allowances from the scope of scope of the term 'family benefits' as there Regulation No 1408/71 altogether and (ii) defined. in the case of Article 10a and Annex IIa, permit Member States to limit entitlement to the special non-contributory benefits expressly mentioned in Annex IIa to per- sons resident in that State, even where a provision of the Regulation would other- 39. The Commission suggests that it would wise require export of that benefit. not have been necessary expressly to exclude the allowances from the scope of the Regulation if they would not otherwise have fallen within it. I am not convinced by that argument: a Member State may wish to avoid any doubt by expressly excluding an allowance. I will accordingly first con- 36. The applicants and the Portuguese sider whether the antenatal allowance and Government submit that the provisions at the childbirth allowance would fall within issue are not compatible with the Treaty the scope of the Regulation as family while the defendant institution, the Aus- benefits if they were not expressly excluded trian, Luxembourg, Spanish and United therefrom. Kingdom Governments and the Commis- sion submit that they are compatible.

Do the allowances fall within the definition of 'family benefits'? 37. It is helpful to deal separately with the two issues raised in the question.

40. It may be noted as a preliminary point that the fact that the allowances are non- contributory cannot prevent them from falling within the material scope of the Regulation. 10 The validity of Article 1(u)(i) and Annex 11 excluding special childbirth allowances from the scope of Regulation No 1408/71

excluded from the scope of Regulation benefits or family allowances are intended No 1408/71 and those which fall within to provide social assistance for workers its scope is based essentially on the con- with dependent families in the form of a stituent elements of each particular benefit, contribution by society towards their in particular its purposes and the condi- expenses'. 12 tions on which it is granted, and that a benefit is to be regarded as a social security benefit if it is granted to recipients without any individual and discretionary assess- ment of personal needs on the basis of a legally defined position and if it concerns one of the risks expressly listed in Arti- 44. The defendant institution states that cle 4(1). 11 the essential purpose of the Law of 1977 governing birth allowances may be ascer- tained from its legislative history and in particular from the explanatory memoran- dum published with the draft law submit- ted on 29 August 1976 to the Chamber of Deputies. The Law sought to improve the 42. The antenatal allowance and the child- medical follow-up of pregnant women and birth allowance satisfy the requirement of young children with the aim in particular of automatic entitlement on the basis of reducing infant mortality which was 1.8% objective criteria. The Council however in in the period from 1970 to 1974. That aim effect doubts whether they satisfy the has been attained: in 1997 the infant second requirement, namely that they con- mortality rate had fallen to 0.4%. cern a risk listed in Article 4(1). That provision includes 'family benefits' as defined in Article 1(u)(i). According to the Council, the exclusion of the two allowan- ces from the material scope of the Regula- tion is justified because they are not 'intended to meet family expenses' as 45. The provisions of the Law, the text of required by Article 1(u)(i) of 'family bene- which has been supplied to the Court, fits' within the scope of the Regulation but, support the view that its principal purpose requiring medical examinations, pursue a was to improve the health of pregnant particular public health objective. women and young children. Chapter 4 of the law, entitled 'Childbirth allowance' (clearly intended in the composite sense), lays down the residence condition already mentioned and certain practical provisions such as how payments are made. Chapters 1 to 3 lay down the other conditions of entitlement to the antenatal allowance, the 43. The Court has stated that it is clear childbirth allowance proper and the post- from Article 1(u)(i) and 1(u)(ii) that 'family natal allowance respectively.

48. Although the postnatal allowance is not in issue here, it was introduced by the same law and the conditions of entitlement to its grant may help in assessing the purpose of that law with regard to the other allowances. Chapter 3 of the Law, entitled 'Protection of young children', requires the child to have had two perina- tal 13 examinations and four subsequent examinations within the first two years of life. 50. The fact that a given benefit is 'inten- ded to meet family expenses' does not in itself however necessarily mean that it is a family benefit for the purpose of the Regulation. Many social security benefits are by their nature intended to meet family 49. The tenor of the Law thus suggests that its principal aim was to improve the health 1 4— Cited in note 11, paragraph 30 of the Opinion. 15 — Hughes, cited in note 10, paragraphs 19 and 20 of the judgment. Sec also the Opinion of Advocate General Alber in Case C-33/99 Falum delivered on 12 October 2000, 13 — Within the first year after birth. paragraph 45.

I - 4279

OPINION OF MR JACOBS — CASE C-43/99

I - 4280

LECLERE AND DEACONESCU

53. If however the Court concludes that the it to take away rights that those workers allowances at issue fall within the concept have under national law.' 23 of 'family benefits' within the meaning of Article 1(u)(i), the question still remains whether their express exclusion in Arti- cle 1(u)(i) and Annex II from the material scope of the Regulation is lawful.

56. The Regulation must not therefore, at least so long as different national systems subsist, take away rights that workers have under national law. Nor must the Regula- tion exacerbate differences between those If the allowances are family benefits, is systems. 24 their exclusion from the material scope of the Regulation lawful?

57. Excluding the antenatal and childbirth 54. I do not consider that the express allowances from the material scope of the exclusion of the allowances in Annex II Regulation does not, however, either add to from the material scope of the Regulation is such differences or extinguish entitlement on that analysis unlawful. under national legislation to those allow- ances: it simply has the effect that entitle- ment to the allowances remains wholly governed by national law.

55. There is, as Advocate General Warner elegantly observed as long ago as 1975, 'a golden thread woven into the fabric' of the decisions in which the Court has ruled that 58. In my view, therefore, if the antenatal a provision of Regulation No 1408/71 or allowance and the childbirth allowance are its predecessor, Regulation N o 3 , 22 is properly regarded as family benefits Arti- incompatible with Article 51 and hence cle 1(u)(i) of, and Annex II to, Regulation unlawful: 'Article 51 empowers and No 1408/71 are not incompatible with requires the Council to confer rights on Article 51 of the Treaty in so far as they migrant workers, but does not, so long as exclude those allowances from the material different national systems subsist, empower scope of the Regulation.

59. The second limb of the national court's first question concerns the maternity allow- ance. Maternity benefits are in general within the material scope of the Regula- tion, being listed in Article 4(l)(a). By 61. In Snares, the Court was asked whether virtue of Article 19 of the Regulation they Regulation No 1247/92, 28 which inserted are payable to insured persons resident in a Article 10a and Annex IIa into Regulation Member State other than the competent No 1408/71, was valid in the light of State. The importance of that principle is Article 51 in so far as it set aside, in the illustrated by the fact that the preamble to case of the listed allowances, the principle the Regulation states that, 'in the field of of waiver of residence clauses laid down in sickness and maternity benefits, it is neces- Article 10 of Regulation No 1408/71. The sary to guarantee the protection of persons Court ruled that the system of coordination living or staying in a Member State other established by Regulation No 1247/92, in than the competent Member State'. 25 It so far as it applied to the allowance at issue will be recalled that the maternity allow- (United Kingdom disability living allow- ance at issue in the main proceedings is ance), was not at variance with Article 51. listed in Annex Ha to the Regulation; by virtue of Article 10a it accordingly appears not to be exportable. The national court has asked whether those provisions are compatible with Article 51 of the Treaty.

62. That conclusion was affirmed in Par- tridge.

60. The defendant institution, the Austrian, Luxembourg, Spanish and United Kingdom Governments, the Council and the Com-

64. Moreover, the Court stated in both benefits of the various benefits concerned Snares 29 and Partridge 30 and repeated in was not at issue in Siiares, Partridge or Swaddling 31 that the fact that the Com- Sivaddling. Moreover the Court followed munity legislature refers to legislation in its statements in Snares and Partridge with Annex IIa must be accepted as establishing the less categorical proposition that 'the that benefits granted pursuant to that wording of Article 10a implies that the legislation are special non-contributory benefits to which it refers also come within benefits falling within the scope of Arti- Article 4(2a) of Regulation cle 10a. No 1408/71'. 33 The Advocate General notes too that it is stated in the preamble to Regulation No 1247/92, which inserted Articles 4(2a) and 10a of, and Annex IIa to, Regulation No 1408/71, that 'it is necessary... to ensure that the existing system of coordination in Regulation No 1408/71 continues to apply to benefits which either do not fall within the special 65. It appears from that wording that the category of benefits referred to or are not inclusion of a benefit in Annex IIa is expressly included in an Annex to that conclusive of its status for the purpose of Regulation'. 34 That formulation empha- the Regulation as a special non-contribu- sises that the mention in Annex IIa is only tory benefit. I am not convinced however one of the conditions of application of that the effect of those cases is that a Article 10a. Finally, Advocate General Member State may, merely by entering a Alber states that it is not obvious why an benefit in the list in Annex IIa, necessarily annex to Regulation No 1408/71 adopted defeat a requirement to export that benefit by the Community legislature should be which would otherwise flow from the more definitive than other provisions of Regulation. Only 'special non-contributory Community legislation, the compatibility benefits' may validly to my mind be listed of which with legal rules of a higher order in Annex IIa. may be the subject of judicial review at any point.

68. Article 4(2a) 35 states that the Regula- tion is to apply to special non-contributory benefits provided under legislation or 'the Court of Justice has stated that, in schemes other than those referred to in some of its features, legislation under paragraph 1 (or excluded by virtue of which such benefits are granted is akin to paragraph 4). Special non-contributory social assistance in that need is an essential benefits are defined as benefits intended criterion in its implementation and the '(a) either to provide supplementary, sub- conditions of entitlement are not based stitute or ancillary cover against the risks upon the aggregation of periods of employ- covered by the branches of social security ment or contributions, whilst in other referred to in paragraph 1(a) to (h), or (b) features it is close to social security to the solely as specific protection for the dis- extent that there is an absence of discretion abled'. Article 4(1)(a) includes maternity in the manner in which such benefits as are benefits. provided thereunder are awarded and in that it confers a legally defined position upon beneficiaries'. 38

73. All these benefits satisfy the require- ment developed in the case-law that need should be an essential criterion. 7 1 . The p r e a m b l e to R e g u l a t i o n No 1247/92 states that 'such benefits should be granted, in respect of persons falling within the scope of Regulation (EEC) No 1408/71, solely in accordance with the legislation of the country of residence of the person concerned or of the members of his or her family... without 74. The overwhelming majority of the discrimination on grounds of national- 'special non-contributory cash benefits' ity'. 46 Those benefits are defined in Arti- listed in Annex Ha to the Regulation also cle 4(2a) as special non-contributory bene- reflect that requirement. In the version of fits. the Regulation applicable when Mr Leclere's son was born, 51 Annex Ha lists 55 such benefits. Of that total, and in so far as can be ascertained from the description of the benefit in Annex Ha, 37 take the form of allowances or supplementary income for those suffering from some type of disability, invalidity or incapacity for 72. Benefits which the Court has accepted work and/or for the elderly. The remaining as being special non-contributory benefits benefits comprise either allowances for within the meaning of Article 4(2a) include children of non-working mothers whose the United Kingdom disability living allow- husbands are on military service or in ance, 4 7 attendance allowance 48 and prison, for widows and orphans, for lone income support 49 and, in passing, the parents and for nursing mothers (seven in total) or variously named benefits appar- ently intended to supplement income (10 in 41 — Case C-78/91, cited in note 10. total). The Luxembourg maternity benefit 42 — Case C-66/92 Amarai [199.3] ECR I-4567. 43 — Case 39/74 Costa [1974] ECR 1251; Case 7/75 Mr and Mrs F. [1975] ECR 679, and Case 187/73 Callemeyn [1974] ECR 553. 50 — Stinco and Panfilo, cited in note 38. 44 —Judgment in Case 63/76 Inzmllo [1976] ECR 2057. 45 — Case C-356/89 Newton [1991| ECR I-3017. 51—See the Consolidated version of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the 46 — Seventh recita!. application of social security schemes to employed per- 47 — Snares, cited in note 26. sons, to self-employed persons and to memhers of their families moving within the Community, Ol 1992 C 325, 48 — Partridge, cited in note 27. p. 1, as amended by Council Regulation (EEC) 49 — Swaddling, cited in note 31. No 1945/93 of 30 June 1993, OJ 1993 L 181, p. 1.

79. Article 77 provides for the export of benefits to persons receiving invalidity pensions. However, the term 'benefits' is 76. I accordingly conclude that the mater- defined for the purposes of the article as nity allowance is not validly included in 'family allowances'. 'Family allowances' Annex IIa to the Regulation. Article 10a is are defined in Article l(u)(ii) as 'periodical cash benefits granted exclusively by refer- ence to the number and, where appropriate, 52 — See paragraph 68 above. the age of members of the family'.

I - 4286

LECLERE AND DEACONESCU

80. The applicant and the Spanish Govern- within the scope of that definition and is ment submit that the child-raising allow- not therefore covered by Article 77. ance is included among the benefits expor- table by virtue of Article 77 while the defendant, the Austrian, Luxembourg and Portuguese Governments and the Commis- sion submit that it is not. The United Kingdom submitted no observations on 83. I would also add (although the Court the second question. has not been asked to rule on this point) that the postnatal allowance, which is not listed in Annex II and hence not excluded from the scope of the Regulation), cannot be exportable by virtue of Article 77 since, being a single payment, it is not a 'periodi- cal cash benefit' within the definition of 'family allowances' in Article 1(u)(i).

86. The applicants and the Portuguese and Spanish Governments consider that the recipient of a pension is an employed 89. It has moreover been acknowledged by person with the meaning of Article 73 the Court that Article 73 ceases to apply, in while the defendant institution, the Aus- favour of Article 77, when the person trian and Luxembourg Governments and concerned loses his status as worker and the Commission consider that he is not. becomes the recipient of an invalidity The United Kingdom submitted no obser- pension 55 and that a self-employed person vations on the third question. did not fall within the concept 'employed person' for the purpose of Article 73 even though that person strictly fell within the definition in Article 1(a) at the material time by virtue of compulsory insurance. 56

91. The answers which I propose to the 93. The applicants, the Portuguese and national court's second and third questions Spanish Governments and the Commission appear to me to follow inescapably from consider that this question should be the scheme and wording of Articles 73 and answered in the affirmative, while the 77 and the Court's ruling in Lenoir. 57 I am Austrian, Luxembourg and United King- conscious however that the result in the dom Governments consider that it should present case is most unfortunate: Mr be answered in the negative. Leclere, who has been a model Community national exercising his right of free move- ment, is denied family benefits to which he would have been entitled had he been employed rather than in receipt of invalid- ity benefit when his son was born. The 94. It is settled case-law that the concept of Commission suggested at the hearing that worker within the meaning of Article 48 of for that reason Article 77 should be regar- the Treaty and Regulation No 1612/68 has ded as inapplicable. That solution however a specific Community meaning: a person would be contrary to the express wording who, for a certain period of time, performs of the provision as interpreted by the services for and under the direction of Court. The answer perhaps lies in a future another person in return for which he amendment of the Regulation, although receives remuneration must be considered that solution will not of course assist Mr to be a worker. Once the employment Leclere. relationship has ended, the person con- cerned as a rule loses his status of worker, although that status may produce certain effects after the relationship has ended. 58

remains a worker within the meaning of to the benefit is intrinsically linked to the Regulation 1612/68. I am persuaded how- recipients' objective status as workers.' 62 ever by the careful analysis of the case-law In Commission v France, which concerned presented by the representative of the qualification for supplementary retirement United Kingdom Government at the hear- pension points for former workers placed ing in support of the contrary view. in early retirement, the Court ruled that the application of Regulation No 1612/68 63 could 'not be precluded by the fact that the concessionary points system benefits per- sons whose contract of employment has terminated. Workers are guaranteed certain rights linked to their status as such... even 96. The United Kingdom referred to the when they are no longer in an employment Court's repeated definition of 'social relationship'. 64 advantages' within the meaning of Arti- cle 7(2) of Regulation No 1612/68 as 'all advantages which, whether or not linked to a contract of employment, are generally granted to national workers because of their objective status as workers or by virtue of the mere fact of their residence on the national territory...'. 61 Thus 'social advantages' are classified in two main categories: first, those that the host State grants to its workers and, second, those that the host State grants to its residents. The benefits at issue in these proceedings are plainly in the second of those cate- gories. 98. Both those cases are accordingly con- sistent with the rule that a benefit may be claimed as a social advantage by virtue of Regulation No 1612/68 by former workers whether or not resident in the State grant- ing the benefit if the benefits are granted to former workers because of their objective 97. Meints and Commission v France are status as such. Neither case establishes a both cases in which the benefit in question rule that former workers who are not was granted to the workers of the Member resident in that State may under that State concerned. Thus in Meints the Court Regulation claim as a social advantage a confirmed entitlement to a benefit (a com- benefit of a type granted by the State to its pensation payment for dismissed agricul- residents alone. That situation remains tural workers) 'the payment of which is governed by the general proposition that dependent on the prior existence of an former workers are not 'workers' within employment relationship which has recently come to an end... since entitlement 62 — Paragraph 41 of the judgment. 63 — The Court was in fact considering Article 7(1), set out in 61 — Case C-310/91 Schmid [1993] ECR I-3011, paragraph 18 paragraph 23, which precludes different treatment as of the judgment, citing Case C-249/83 Hoeckx [1985] regards dismissal. ECR I-973; Meints, cited in note 59, paragraph 39. 64 — Paragraph 41 of the judgment.

102. I am accordingly of the opinion that the questions referred by the Conseil Supérieur des Assurances Sociales should be answered as follows:

(1) Article 1(u)(i) of, and Annex II to, Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community are not incompatible with Articles 48 and 51 of the EC Treaty (now, after amendment, Articles 39 and 42 EC) in so far as

I - 4291

OPINION OF MR JACOBS — CASE C-43/99

they exclude the antenatal allowance and the childbirth allowance from the material scope of the Regulation. If, however, those allowances are correctly analysed as maternity benefits, their mention in Annex II is irrelevant and they are exportable by virtue of Article 19 of the Regulation.

(2) Article 10a of, and Annex IIa to, Regulation No 1408/71 are not incompa- tible with Articles 48 and 51 of the EC Treaty in so far as they preclude the export of special non-contributory benefits as defined in Article 4(2a). Those provisions cannot however apply to an allowance such as the maternity allowance in issue, since it does not fall within the concept of a special non- contributory benefit.