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Forum Home  →  Discussion  →  Disability benefits  →  Thread

Am I missing something? right to reside query

Cordelia
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Welfare rights officer - Wrexham Council Welfare Rights Team

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My client is an elderly Polish lady with dementia.  She lives with her daughter and grandchildren.  Daughter has worked in the past, but left the labour market to have children.  She subsequently split up with her partner.  Eldest grandchild is in school, so daughter is claiming IS as a lone parent.

My client has been in the UK for two years now.

She has been refused AA as “this is because the United Kingdom is not responsible for paying you benefits like Attendance Allowance”.  The letter goes on to explain that “some people may be able to claim AA…” and lists workers, people on contributory UK benefits etc.  No mention of presence or past presence.

It then helpfully suggests that she try applying for benefits from her own country.

She does get a pension from Poland, and I can see that she doesn’t have a right to reside for means-tested benefits but I can’t find a right to reside rule for AA.

Can anyone explain it to me?

Tom B (WRAMAS)
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There is no right to reside test but habitual residence applies.

It certainly sounds arguable that your client is habitually resident given the length of time she has been here, family ties and if receiving healthcare etc. here. Receiving Polish pension wouldn’t come in to this as far as I am aware?

Decision notice appears from your post to refer to co-ordination rules and whether UK is the competent state so might be worth double checking the dates to ensure she has definitely been here for 104 wks.

Get a reconsideration request in!

matthewjay
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tbidmead is right that the pension would not come into it for the purposes of HRT - HRT is definitely not the issue.

There are two possibilies:

1. they are disputing the UK is the competent state (I think this is most likely)
2. they are saying she does not satisfy the past presence test (unlikely or they would say so)

1. Under EU social security co-ordination rules, the basic rule is that only one country is responsible for paying your benefits - this is the single competent state principle. However, the UK probably is the competent state. These rules are spectacularly complicated and I’ve been staring at them for months on a very similar cases (Polish pensioner claimed CA). I think basically, becuase she is not working and because she resides in the UK, the UK is the competent state. Regulation 883/2004 protects her pension notwithstanding. This is certainly the opinion of some lawyers in the European Citizen Action Service and I’m about to test it in an appeal to the UT. This is because article 11(3)(e) of the Reg 883/2004 says, in essence, that the state of residence of a non-economically active person is the competent state ‘without prejudice to other provisions of this Regulation guaranteeing him benefits under the legislation of one or more member states’. The Reguation then goes on to make provision for pensions further on.

Article 29 is of particular relevance:

“Cash benefits shall be paid to a person receiving a pension or pensions under the legislation of one or more Member States by the competent institution of the Member State in which is situated the competent institution responsible for the cost of benefits in kind provided to the pensioner in his Member State of residence.”

The competent institution is, in this case, the DWP. Benefits in kind are basically healthcare. The NHS is responsible for her healthcare so cash sickness benefits (of which AA is one) are payable by the UK.


2. If they do dispute past presence, then art 6 of the Regulation should apply - you take into account periods of residence spent in other EEA states.  They would say that she does not have a link to the soc sec system of the UK, but that is actually irrelevant in my view as that test comes into an article 21 TFEU interpretation of the old Regulation, and that’s not the issue. But I don’t think this is what they’re saying, anyway. It’s much easier for them to reject the claim on this ground so if that was what had happened, I’m sure you would know it.

[ Edited: 17 Feb 2015 at 09:28 pm by matthewjay ]
1964
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Off the top of my head, but where someone is of pension age isn’t the competent state the country responsible for paying the state pension? I know I went through all this with a client in a similar position and ultimately came to the conclusion his home state was the responsible one (he did indeed ultimately successfully claim the equivalent of AA from his home state).

matthewjay
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1964 - 18 February 2015 08:10 AM

Off the top of my head, but where someone is of pension age isn’t the competent state the country responsible for paying the state pension? I know I went through all this with a client in a similar position and ultimately came to the conclusion his home state was the responsible one (he did indeed ultimately successfully claim the equivalent of AA from his home state).

Sometimes it is, sometimes it isn’t. There are quite complex rules for sickness, maternity and paternity benefits in Title III, Chapter 1, Section 2 of the Regulation.

matthewjay
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Skimming the latest Welfare Rights Bulletin, it appears Judge Jacobs currently has some cases concerning determining which is the competent state for sickness benefits for pensioners. He mensions them in passing in [2014] UKUT 571 but I don’t know anything about them.

paulmoorhouse
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Matthew, or anyone else, did you track down the Judge Jacobs cases ? Any progress with your own case? I’ve a similar case concerning an Irish pensioner refused AA. Thanks

HB Anorak
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paulmoorhouse
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Thanks Anorak—not helpful but I’ll digest—any suggestions for potential differentiation are welcome.

matthewjay
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I think it’s distinguishable if you can show your client would not be entitled to benefits in the kind the home state (e.g. because they do not meet insurance contributions) if they resided there. This seems to be the effect of the very last part of article 25. Article 25 also refers to article 24(2), so you need to establish under artciel 24(2) whether the client is entitled to benefits in kind only in the UK or in the UK and another EEA country.

Some info for Ireland is available from the Commission: http://ec.europa.eu/social/main.jsp?catId=1115&langId=en&intPageId=2605

paulmoorhouse
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Thanks Matthew—I’ll look into that—is there any mileage in arguing it the other way round: that she is not entitled any benefit equivalent to AA in the home state?

matthewjay
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Probably not. I don’t think benefits entitlement (other than pensions) ever counts towards determining which state is the competent state. If it’s Ireland, then it’s Ireland. If the reason she’s not entitled is residence, then that may be unlawful depending on the nature of the Irish equivalent.

To answer Cordelia’s original question, I’ve just been looking at this also for a Polish pensioner. My client gets a widow’s pension from which deductions for compulsory health insurance are made. As such, she is entitled to to healthcare in Poland and Poland is the competent member state. If your client also has these deductions (this is probably so: compulsory insurance apparently covers virtually the entire population of Poland), then she would be in the same position. If she does not, then I think she would only be covered if her income is very low.

[ Edited: 6 May 2015 at 09:40 pm by matthewjay ]
Simon
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Charlotte Keel Welfare Rights, Bristol CAB

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To reopen this discussion, I have a cl in a similar position to that above:

Recently moved to UK from Poland, being cared for by her daughter who has perm R2R. She receives some form of Polish retirement pension, again with deductions for health insurance.

So…Poland is going to be considered the competent state, meaning she’ll be stuffed for both PC & AA? And is there a way round, such as surrendering her Polish pension?

HB Anorak
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Pension Credit is different again ... it’s a “special non-contributory benefit” under the coordination rules and the competent state is always the member state of residence.  But as UK case law stands the right to reside test still applies (see Patmalniece case) which means your client can only get PC if DWP accepts she is dependent on her daughter (which seems quite likely actually)

Simon
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Charlotte Keel Welfare Rights, Bristol CAB

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Ahh yes, thanks HB Anorak; I should have read my CPAG a bit more closely! P. 253 of CPAG’s benefits for migrants handbook (6th edition) also has some handy tips if there is an exclusion (as outlined above) for sickness benefits:

- If health condition is perm/long-term, exclusion should not apply as benefit should be classed as invalidity benefit rather than sickness (as held by CJEU).

- If dependent family member of EEA worker, exclusion prohibited by principle of equal treatment if refusal impedes his/her ability to work.