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Forum Home  →  Discussion  →  Disability benefits  →  Thread

DLA and Past Presence Test for EU nationals

PCLC
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Benefits Supervisor - Plumstead Law Centre, London

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Just wondered how people were doing with their appeals, as I have just won a case that has dragged on for over 2 years with 5 previous adjournments.

Situation was – mother came to UK with profoundly disabled daughter in Dec 2012, both Dutch nationals. Claimed DLA in Jan 2013, refused in May 2013 under old 6 months rule. Claimed again in Aug 2013, refused under new past presence test of 104 weeks out of previous 152. Mum had never worked in Holland, has never worked in UK, but claimed JSA, HB etc pretty soon on arrival.

Tribunal accepted that her residence in Holland could count towards 6 months in old rule ( directly applying 883/2004) and 2 years in new rule. Also accepted that she had a genuine and sufficient link with UK due to her receipt of UK benefits, but we didn’t need that as 883/2004 applied directly with regard to aggregation. Also the DWP position is that it is periods of social insurance that count, not “mere” presence in the other EU state. The Tribunal disagreed, presence was enough under 883/2004, but even if it wasn’t, she was an insured person under the Dutch scheme anyway.

We will have to see if this goes to the UT, Judge said there are some outstanding ones anyway to clarify if it is insurance or residence that is the point. But DWP made a lot of concessions along the way so they may not wish to take it further.

Maria
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I have just lost a case at first tier tribunal.  This case has also dragged on for over 2 years but with only 3 adjournments/postponments.
Situation – mother is a British citizen who came to the UK from the Republic of Ireland with her disabled son who is an Irish national in July 2013.  She claimed DLA for her son 2 days after arriving in GB.  He was turned down because he had not been in the UK for 104 out of the past 156 weeks.  The mother had worked briefly in GB as a teenager and had not worked in Ireland.
The initial tribunal was unwilling to look at the aggregation rules under 883/2004 until the issue of whether there was a genuine and sufficient link to the UK had been explored.  There had been no submission in this respect from the DWP.  The second tribunal adjourned because the DWP did not attend and said that they had not been notified of the hearing.  The DWP had not provided any arguments in relation to the aggregation rules but the judge suggested they may argue that simple residence in Ireland was not sufficient.  The third tribunal was postponed because a district judge was requested.  The DWP conceded that the claimant was habitually resident in GB at the time of the application.
At the most recent tribunal the judge was very complimentary about the cogent arguments made.  However, he did not accept that the claimant had a genuine and sufficient link with the UK social security system.  He also refused to apply the aggregation rules as he said they were at odds with a clear interpretation of the UK legislation.  He urged me to request a written statement of reasons and to appeal.

Martin Williams
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Welfare rights advisor - CPAG, London

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Maria - 29 September 2015 02:38 PM

[...] He also refused to apply the aggregation rules as he said they were at odds with a clear interpretation of the UK legislation.  He urged me to request a written statement of reasons and to appeal.

If that is what the Judge’s reasons are for not applying 883/2004 it is intolerable. EU Regulations have direct effect and override UK law which is to the contrary. That is an EU law 101 point….

 

Damian
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Welfare rights officer - Salford Welfare Rights Service

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Maria / PCLC did either of your cases go to UT or does anyone else know of any cases on this issue which have gone to UT? I have a case where the DWP are arguing only periods of residence as a worker / self employed count citing SSWP v Garland as support for this (a case where 1408/71 was in issue rather than 883/04).

Brian JB
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Damian

I have been assisting an adviser working in the voluntary sector with a case of a Dutch national claiming CA, where the DWP will not take account of periods of residence in the Netherlands - in the MR letter they stated -

“In certain circumstances, periods of paid employment or receipt of a benefit based on your national insurance record in another EEA state may be aggregated to periods spent in Great Britain when calculating the 104 weeks”

They had decided (rightly in my view) that regulation 9A of the SS(ICA) Regs did not apply, because she did not have a genuine and sufficient link to the UK social security system, so the past presence requirement could not be disapplied. However, I have struggled to see how 883/04 does not assist her.

In this case the DWP are not referring to the Court of Appeal decision in Garland, and rightly so I think - the decision postdates the coming into force of 883/04

Article 6 of Regulation (EC) 883/2004 says –

Unless otherwise provided for by this Regulation, the competent institution of a Member State whose legislation makes:

-      the acquisition, retention, duration or recovery of the right to benefits,
-      the coverage by legislation,
or
-      the access to or the exemption from compulsory, optional continued or voluntary insurance

conditional upon the completion of periods of insurance, employment, self employment or residence shall, to the extent necessary, take into account periods of insurance, employment, self employment or residence completed under the legislation of any other Member State as though they were periods completed under the legislation under which it applies

Note 2 of Annex XI to the regulation, as regards the United Kingdom, provides that –

For the purposes of applying Article 6 of this Regulation to the provisions governing entitlement to attendance allowance, carer’s allowance and disability living allowance, a period of employment, self employment or residence completed in the territory of a Member State other than the United Kingdom shall be taken into account in so far as is necessary to satisfy conditions as to required periods of presence in the United Kingdom, prior to the day on which entitlement to the benefit in question first arises

I wouldn’t consider myself an expert on EU law but it seems fairly clear to me, unless there is some other provision or case law I am unaware of

Damian
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There has been a decision on this issue in CDLA/0373/2016 & CA/0224/2015 and its bad news. Does anyone know who is representing the claimants in these cases and whether they are asking for leave to appeal? I see he’s only given 2 months to apply for leave.

Ros White
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Hi, yes, CPAG’s representing the claimants - we’re just considering whether to appeal at the moment - I’ll let you know what happens, best Ros

Damian
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Has any decision been made on whether to appeal? I have a case listed for 15th Feb and I think we will be arguing genuine and sufficient link to the country but it would be useful to know what is happening with this case.

Damian
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I’ve been looking at Judge Jacobs decision partly to work out how to argue my case but also to try and get a better grasp of this whole coordination reg business which I have always found far too difficult. Its not going very well.
These are some of my thoughts and I’d appreciate any comments:
In BK the crux of it was that the claimants could not aggregate their residence because theirs was not a qualifying residence.
The definition of residence in the coordination regulation is simply habitual residence. However Jacobs comes to a different conclusion that it is residence whilst paying national insurance. He justifies this by reference to the Lucy Stewart Judgement and says that to do otherwise would go against the principle of a State being able to insist on a genuine and sufficient link (para 18 of BK) He then says in para 19 “If article 6 is allowed to operate in a way that will satisfy the presence test without reference to any other element that will bypass the role that other elements play under Stewart and by virtue of Article 21(1)” So in Jacobs’ approach the Lucy Stewart Judgement is a tool for interpreting how aggregation rules are applied.
He doesn’t spend very long on Garland (in para 26), he just quickly says it was about the old regulation so he’s not bothering with it. However Lucy Stewart was also under the old reg and the Garland Judgement comments on the limitations of the scope of the Lucy Stewart decision (because John Garland had tried to argue that the Stewart decision meant he should win). The Court of Appeal decided that Lucy Stewart principles only applied to people to whom aggregation rules could not apply (under the old reg they didn’t apply to everyone, they could apply to John Garland but this turned out to be to his loss).
So in Garland the court of appeal say the Stewart decision applied only as an exception where aggregation could not apply but in BK v SSWP Stewart sets out principles for interpreting aggregation.
In 1408/71 art 10 which Stewart was based on started with the words “Unless otherwise provided for by this regulation…” which in Garland was interpreted as meaning that where aggregation rules were applicable things were otherwise provided for and therefore for good or ill art 10 could not help you. In 883/2004 both art 6 & 7 have an “unless otherwise provided for” condition, does that mean you can benefit from the bit that suits you best: aggregation or sufficient link?
I’m not saying Jacobs is wrong but I feel like I am missing a crucial part of the reasoning. But then any time I look at the coordination regulation I get confused.

Damian
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Yeah I was missing something, The important thing is the distinction made between residence, defined as habitual residence and periods of residence which Jacobs is saying has a separate definition beyond being a period of habitual residence, it has to be a period which would get you a benefit in the country you came from in order to count as “recognised by the legislation”. So because Ireland doesn’t require periods of residence, just habitual residence then a period residence there does not count.