Client is a Portuguese national who came to Northern Ireland on 19.6.05.
He worked from 28.05.06 -14.9.07. On 21.9.07 he made a claim to income support on the basis that he was incapable of work and was therefore a prescribed category of person in accordance with the Income Support (General) Regulations (NI) 1987.

Client has TB but IB branch decided he failed a PCA and is capable of work. Client is appealing this decision and was receiving IS at a reduced rate while he did so.

IS at a reduced rate was then suspended as following a change of circumstances he can no longer be said to retain the status of a worker, consequently without a right to reside he is deemed to be a person from abroad with an applicable amount of nil, in accordance with Regulation 21AA of the Income Support (General) Regulations (NI) 1987.

In effect every EEA national who is here independently is barred from receiving IS at a reduced rate while they appeal the IB decision.

Has anyone else come across this being applied in your area?

Will this decision sit within Article 10 Council Regulation (EEC) No. 1408/71:

Waiving of residence clauses- Effect of compulsory insurance on reimbursement of contributions

1. Save as otherwise provided in this Regulation, invalidity, old age or survivors' cash benefits, pensions for accidents at work or occupational diseases and death grants under the legislation of one or more Member States may not be subject to any reduction, modification, suspension, withdrawal or confiscation by reason of the fact that the recipient resides in the territory of a Member State other than that in which the institution responsible for payment is situated.

Has anyone challenged this policy?

I think he can apply for interim payments of income support instead -pending the outcome of his appeal. However, you have to persist with request to DWP. I believe there's no right of appeal against refusal to award interim payments. My client, in a similar case, was able to get weekly interim payments, but DWP required him to telephone dwp Makerfield office each week before collecting his payments at his local Job Centre. If application for interim payments is successful, your client would also be entitled to HB/CTB.
However, if appeals fails, potentially, there may be overpayment problems.
I hope ths answers part of your enquiry.

Your last point is about the exportability of benefits - the ones which can be taken with you when you leave the UK to retire to Spain. That's the point about the recipient living in a different member state than the one that pays the benefit.

Thanks for the responses. This is maybe a bit over my head but it struck me as unfair that: if it is decided if you have failed a PCA you can receive reduced rate IS while you appeal...

However EEA nationals here alone cannot.

It is a new policy here so I wanted to establish if it was the same policy throughout the UK and if anyone had challenged it?

Or is anyone aware if it is illegal in anyway under European law?

As the client wishes to appeal arguing he is temporarily unable to work shouldn't he have the same rights associated with this?

I think that the assesment of the case by the DWP is wrong

Regulation 6 of the EEA 2006 regs ( according to the date of the decision in this case-coming from 2004/38 directive) provides that the status of the worker is not lost if temporary ill. More importantly Article 7(3) of the Directive also provides for the same situation.

So, when your guy was awarded IS on the bases of incapacity (read temporary incapacity), he remains temorary incapable of work until such time that it is decided,otherwise. That could be via appeal, and further appeal. It is a complex situation, but DWP cannot revise the decsiion not to award reduced IS based on the fact PCA was failed. They need to look via PCA test ( then appeal) whether client is ill and then if its temporary as well, given that they had already accepted that her was ill via a med 3 and reg 6 and Article 7(3).

Not sure if CIS/4304/2007 may be worth looking at.

In this decision, Commissioner Jacobs considers the issue of whether a claimant had retained her worker status after she became ill and how regulation 6(2) of the Immigration (European Economic Area) Regulations 2006 that provides that -

'A person who is no longer working shall not cease to be treated as a worker ... if -
(a) he is temporarily unable to work as the result of an illness or accident;'
- should be interpreted.

In doing so, he holds that -

'Inability to work is a concept used in EC legislation and, in order to ensure uniformity in that legislation between Member States, it must be interpreted in the same way throughout the EU. It cannot, therefore, depend upon the particular domestic legislation governing incapacity benefits.'

- and that the question is: can a claimant be fairly be described as unable to do the work she was doing or the sort of work that they were seeking?

As Essie says, in this case by paying income support in the first place the Department seem to have accepted that your client had retained his worker status under regulation 6(2).

In which case, given Commissioner Jacobs' finding and that your client is deemed to have failed the PCA rather than say 'the own occupation test', it is arguable that DWP has no grounds to withdraw his benefit.

There is a summary of CIS/4304/2007 in the briefcase area of rightsnet together with a link to the full decision available on the commissioner's website @ www.osscsc.gov.uk