UK National & HRT & Reg22(c)

I have a UK client who has returned from Australia in January 2014 and has been turned down for PIPs because he has not been present in the UK for 2 years out of the last 3 years as per Reg 16B. However Reg16B is discounted by Reg 22C in that…

“can demonstrate a genuine and sufficient link to the United Kingdom social security system.”

Does anyone know what a genuine and sufficient link to the United Kingdom social security system would mean in this case.

Have they ever worked and paid NI contributions in the UK?

Notes from CPAG training I went on recently state this:

For the guidance given to DMs see DMG para 070987 and ADM C2 para C1230. See also SSWP v JG (IS) UKUT 298 (AAC) (heard together with SSWPvJG (RP) 2013 UKUT 0300 (AAC) which is currently under appeal to the Court of Appeal) held that the test is whether there is a genuine and sufficient connection with Great Britain ‘for the purposes of the benefit being claimed’.

They also refer to SS (AA) Reg 2A, SS (DLA) Reg 2A and SS (ICA) Reg 9A

Edit
It also says,” factors that are relevant to demonstrating a gen and suff link to the UK SS system include if the claimant has worked in the UK or spent a signif part of their life in the UK or are receiving a UK contributory benefit or are dependent on a family member who has worked in the UK and/or receives a UK contributory benefit”

Dear Billy thanks for the reply. Firstly is the Reg 2A you mention this…

(4) After regulation 2 insert—
“Persons residing in Great Britain to whom a relevant EU Regulation applies
2A.  (1)  Regulation 2(1)(a)(iii) shall not apply where on any day—
(a)the person is habitually resident in Great Britain;
.(b)a relevant EU Regulation applies; and
.(c)the person can demonstrate a genuine and sufficient link to the United Kingdom social security system.
.(2) For the purposes of paragraph (1)(b) and regulation 2B, “relevant EU Regulation” has the meaning given by section 84(2) of the Welfare Reform Act 2012.

Secondly please can you tell me what to google to get the DMG para 070987 and ADM C2 para C1230

Google Decision Maker’s Guide. Volume 2, Ch 7 pt2.

Google “Advice for decision making” and have a hunt.

Does this help in this case, as a UK national returning from Australia?

Link to Decision Makers Guide - https://www.gov.uk/government/collections/decision-makers-guide-staff-guide

and you can go to ADM guide from there as well

If it’s the Social ecurity (PIP) Regs we are concerned with here, Reg 22 is indeed the relevant one: it disapplies the 104/156 presence test in a case where a relevant EU Reg applies and the person has a genuine and sufficient link with the UK social security system.

The key question is whether a relevant EU reg applies.  The term “relevant EU reg” is defined in s84(2) of the WRA 2012 as 883/2004 and its predecessor 1408/71: the coordination regulations.  Can these ever apply to someone moving between the UK and a non-EEA member state?

Article 2 of 1408/71: “This Regulation shall apply to employed or self-employed persons and to students who are or have been subject to the legislation of one or more Member States”

Article 2 of 883/2004: “This Regulation shall apply to nationals of a Member State, stateless persons and refugees residing in a Member State who are or have been subject to the legislation of one or more Member State”

On first reading it seems to be concerned with movement between member states.  But “one or more”???  That includes “one” doesn’t it?

So we need to read further (which I am doing now ... hate the coordination regs!)

Update: OK, it seems to be Article 6 of 883/2004 that could be of assistance in cases like this (aggregation of residence periods) but only as regards residence in another member state.

So I don’t think this helps the O/P.  When you think about it, if that client is not caught by the 104/156 rule it is difficult to see how anyone could be isn’t it?

As my client is in receipt of ESA I think my argument has just collapsed…..the residence test in Reg 16(b) PIPs Regs does not apply as per Reg 22. NB The EU Regs mentioned in 22(B) only concern the free movement and protection of workers. As my client is in receipt of ESA then Reg 22 does not apply. Thanks for your interest.

I agree with your update HBAnorak - I can’t see how reg 22 assists in this case

Billy Durrant - 16 October 2014 04:52 PM

Notes from CPAG training I went on recently state this:

For the guidance given to DMs see DMG para 070987 and ADM C2 para C1230. See also SSWP v JG (IS) UKUT 298 (AAC) (heard together with SSWPvJG (RP) 2013 UKUT 0300 (AAC) which is currently under appeal to the Court of Appeal) held that the test is whether there is a genuine and sufficient connection with Great Britain ‘for the purposes of the benefit being claimed’.

They also refer to SS (AA) Reg 2A, SS (DLA) Reg 2A and SS (ICA) Reg 9A

Edit
It also says,” factors that are relevant to demonstrating a gen and suff link to the UK SS system include if the claimant has worked in the UK or spent a signif part of their life in the UK or are receiving a UK contributory benefit or are dependent on a family member who has worked in the UK and/or receives a UK contributory benefit”

I’m struggling to find a link to the above 2 cases, anyone got any ideas?

I am looking to appeal a case based on Reg 22 of the PIP Regs, and the main stumbling block is undoubtedly going to be the gen and suff link to UK SS system. Cl has been living in UK for 18 months having come from Romania via Italy. Unmarried partner is currently working, the only benefits he has claimed is joint-claim JSA (in partner’s name). Sound like a no hoper?

Simon - 22 October 2014 11:18 AM

I’m struggling to find a link to the above 2 cases, anyone got any ideas?

These ones?

SSWP v JG (IS) UKUT 298 (AAC) aka CIS/1015/2011

https://tribunalsdecisions.service.gov.uk/utaac/3868

SSWP v JG (RP) 2013 UKUT 0300 (AAC) aka CP/1014/2011

https://tribunalsdecisions.service.gov.uk/utaac/3869

Copy and paste URL if the link doesn’t open.

that’s the ones, thanks!

However reading these cases it seems there is only ltd applicability to my client’s situation. Can anyone point me in the direction of anything more relevant in terms of establishing a genuine and sufficient link? Is a lack of NI Contributions and work record going to be fatal?