New DLA Residence Conditions

Just what you need before the bank holiday.

Has anyone done a successful appeal for an EU national on the change to residence conditions from Apr 2013 i.e. to be habitually resident and present in the UK for 104 weeks in previous 156 weeks?

If so can I crib your submission?

This is a claim for an EU child (Dutch) who is profoundly disabled - came with mum from Holland, mum had been there for 22 years before - came on 28/12/12, mum claimed and got IBJSA from 23/01/13.

Ist claim for DLA on 15/01/13, decision to refuse under residence on 01/05/13. Second claim on 07/08/13, refused on 06/09/13, hearing for both s3et for 17/09/14.

Slight complication is mum continued to get a Dutch benefit known as the PGB (which as far as I can make out is like our DLA and carer’s allowance combined) until Dec 2013.

Many thanks.

Not done one but what’s your ground of appeal?

EU Reg 883/2004 - though have not had to get to grips with it so far!

Haven’t won yet - I think the hearing is the week before yours - but happy to give you my anonymised subs when back in the office this week.

To summarise them, article 6 of Reg 883/2004 says you take into account periods of residence in other EU member states to satisfy residence conditions, if such residence conditions exist. That’s basically it. You would need to be hab res on the day of claim but not necessarily habitually resident for 104/156 weeks (reg 2(1)(a)(iii) only refers to residence for this period, not habitual residence).

Alternatively, you use reg 2A of the DLA regs: you need to be habitually resident on the day you claim, Reg 883/2004 has to apply, and you need a genuine and sufficient link to the UK social security system (e.g. primary carer having paid NI contribs).

Technically speaking, art 6 is the ‘in the alternative’ argument: if you satisfy reg 2A, then reg 2(1)(a)(iii) (the past presence test) doesn’t apply. Therefore art 6 of Reg 883/2004 is irrelevant because the domestic legislation does not make the acquisition of the benefit contingent upon a period of residence.

However, the PGB may complicate things. The Commission says this about it (http://ec.europa.eu/social/main.jsp?catId=858):

[Under the Dutch Exceptional Medical Expenses Act,] Care is provided in the form of ‘products’. Home care, admission to a nursing home, admission to an institution for the developmentally or physically disabled are all examples of products offered under the AWBZ. A product consists of a single function or of a combination of functions.

Within the framework of an experiment with regard to cash benefits, the insured person can opt not to obtain care provision in kind, but to receive a personal care budget (persoonsgebonden budget, PGB) to enable him/her to purchase care independently. This budget is only available for people with an indication for long stay(accommodation) or an indication for personal care and nursing. The amount of the PGB is dependent on the required care. People who already receive a PGB without having an indication for long stay (accommodation) retain their budget until 1 January 2014.

From what I can see, this is actually a contribution-/insurance-based payment for community care services. This is more akin to direct payments under our community care law than DLA or CA. I’m not sure what it means by ‘within the framework of an experiment with regard to cash benefits’ - possibly that the family can try it out before re-assessment or that the direct payments were an experiment under Dutch law - but I don’t think this is covered by the co-ordination rules.

Haven’t had to deal with a situation where there may be another competent state. Under Reg 883/2004, the competent state is either where you work (did mum ever start work here?) or, if you are not economically active, where you receive a pension or where you reside. I’m not certain if this means that the Netherlands remained the competent state until December 2013 or whether the UK is the competent state and therefore DLA would not be payable (or payable at a reduced rate) under the overlapping benefit rules. Or that the community-care-direct-payments that they are getting are irrelevant, the UK was always the competent state, and DLA is payable in full. My feeling is it’s the lattermost of these, especially if my understanding of the PGB is correct. After all, the DWP accepted that it was the competent institution when awarding her JSA.

Thanks
Matt

For what it is worth, I think Matt is correct. I had a similar case recently (disabled child came from Poland to join mother who is working in UK), used more or less the same argument and DWP revised decision in client’s favour (somewhat to my delight it has to be said). I’m never sure I’ve really got my head around the coordination rules but Matt’s take on it is the same as mine would be.

Thank you both, that’s brilliant and thank you for giving me a steer on things - Matt I would like to take you up on your offer for your sub, my email is .(JavaScript must be enabled to view this email address) or fax 020 8316 7903.

I have just picked up another similar case due to be heard before this one, on 10/09/14.

Mum never worked in Holland - she was married to a Dutch National who worked and supported her and their first child. The marriage broke down soon after the birth of the second child and then mum was on her own as a full - time carer.

Does that affect anything?

I was also wondering where the PGB would fit into this but I think Matt’s steer on this is correct i.e. that its more like direct payments than a benefit. Also I understand that you have to keep accounts, expenses etc and that you may have to pay back any unused/ unaccounted for money which would count towards it not being a benefit as such and therefore sidestepping the competent state complication.

The first claim for DLA was on 15/01/13 - they had been here 19 days by then. Do you think I should accept that they were not Hab resident on that claim and concentrate on the second one made on 07/08/13?

However IB JSA was awarded 9 days after the DLA claim, so do you think I should still try for Hab Res on first DLA claim?

Many thanks!

I don’t think her family circs affect the question of co-ordination, no. She’s here as an EU citizen in her own right - I’ve assumed she’s also Dutch.

Even though they had only been here for 19 days, I would still argue they were habitually resident. The length of time required can be shortened in appropriate circumstances. I’m not in the right office but I seem to recall that length of residence cannot be used as a limiting criterion within the HRT where the co-ordination rules are in play. There’s a bit in either CPAG or CPAG’s Benefits for Migrants Handbook (currently largely out of date) on this. The award of JSA might also indirectly help as, I would argue, it shows an intention to find work and settle here for the time being.

I now have a client who is an Irish National, as is her disabled child. Came to UK in September 2013, DLA for child refused in Jan 2014 under the new residence/ presence conditions They lived for 13 years in Ireland where she did some work, I can prove residence in Ireland from at least 2010. I can also prove residence and hopefully habitual residence in UK.

Am I right in thinking this should be straightforward, and was an appalling mistake on behalf of DLA, as the DLA Amendment Regs 2013 expand residence and presence from Great Britain to include the Republic of Ireland?

I thought the past presence test was UK only - i.e. not the Republic of Ireland or CTA. Don’t have the Regs in front of me though, so could be wrong.

If it is UK only, Reg 883/2004 should assist as above.

EDIT: just checked CPAG. Current presence and past presence test are GB only. Habitual residence can be anywhere common travel area. I’ve never actually seen the CTA part of this assist someone due to the presence and past presence requirements.

Hi Matthew

Has your appeal been heard, if so how did it go?

My first one is tomorrow, another one next Wednesday.

Sorry, mine’s tomorrow afternoon.

Hi Matthew

Any luck?

My Judge yesterday is “going to think about it” and send a decision.

My judge was ill and adjourned! I have a feeling you’ll hear before me so let me know.
Cheers
Matt

Hi Matt

Just an update - still waiting for decision from last week on Irish national.

My appeal today on a Dutch national was adjourned so the DWP could consider my submission, bah!