Hab Res for UK or Republic of Ireland claim

Help I can only give so much information at this point as the client is due in this morning. The info I do have states that the client came to the UK from the Republic of Ireland in July 2013, her son has a learning disability and was in receipt of disability benefits in Ireland. When she knew they were coming here she contacted his benefit and was told that he needed to make a claim in the UK as it was not a temporary thing.

She made a claim for him in September 2013 and in April received a telephone call to say he had been refused and should be paid by Ireland. Obviously I know the past presence requirement for PIP but I’m wondering if there is anything we can do to sort out this out.

The claimant was born in England and went to Republic of Ireland with mum.

This is all the info I have at the moment, if anyone has any ideas of specific questions I could ask I would be extremely grateful of them and any pointers would be gratefully received.

Thanks in advance

Not sure if this is of any help but I had a client who did not meet the past residence 2out of 3 years rules having lived in Belgium and only been in UK a few months. She was able to claim PIP because of some reciprocal arrangement rules which treated her living in Belgium as living in the UK. I never found out what these rules were or which other countries they apply to (I imagined it was a EU wide thing but I really don’t know) but it is worth enquiring. Please post if you find the answer - good luck.

Thanks for that it looks like that might be under the european co-ordination rules. Looks like I’m going to have some fun this afternoon just getting my head back round these.

I now know the whole family are Irish Nationals, they moved there 15 years ago from UK. Mum is originally from Nigeria.

Anyone know where I can find a guide to the co-ordnation rules to make my job easier.

Thanks

REGULATION (EC) No 883/2004 is about co-ordination rules but, again, not sure if this is the relevant regs

It will depend on who is the competent state.  The competent state is usually the state in which a person is working or last worked in and receives an unemployment benefit or pension from.  Otherwise the competent state is usually the state of residence.  Periods of residence in other member states can be aggregated to satisfy the residence and presence conditions.  However, for the past residence condition for PIP to be satisfied the claimant will have to be habitually resident here, have EU legislation apply to him and can show a genuine and sufficient link to the UK social security system.  Examples of the latter would be past residence here, worked here, paid tax or NI here, received benefits in the past here, or is a family member of one of the above.  There will also be the issue of a right to reside for IR/ESA.

I have a case regarding past presence conditions for DLA/PIP .  I am arguing that periods of residence should be aggregated   under the EU co ordination rules , so that the past presence test can be met - (Article 6 of EU Regulation 883/04)

As Nevip has pointed out that certain conditions to have to be satisfied in order to be assisted by   EU law .  My understanding is that if all these apply , a claimant does not have to satisfy the past presence test.  If the first two conditions are satisfied but cannot demonstrate a genuine and sufficient link to the U.K social security system , the past presence test applies just as it would for a UK national . However,  I have read some DM guidance that the past presence test may be deemed to be met if a claimant satisfies the EU rules about aggregation . The principle of co- ordination is that a person who chooses to exercise their rights to move within the EEA, should not be disadvantaged from social security protection.

My case concerns   an A2 -  Romanian national (aged 61) . He initially arrived in Ireland in 2008 with his wife and non –dependant child (also Romanian nationals ) and was self – sufficient   at first but did not have comprehensive insurance cover . He became ill in Ireland with a severe respiratory condition and tried to claim benefits there but with no success (probably refused on the R2R issue). He   then moved to U.K in December 2012 and since has been residence here.  None of the family   currently receives any benefit/pensions either from Romania or U.K or   can show that they have worked (not clear in how they have been supporting themselves- think son is carrying out work secretly ) .  My client has also tried to claim ESA and PC in U.K but has been refused on the R2R issue and I don’t think he has a chance of succeeding.

I have tried to argue that periods of residence spent in Ireland and U.K should be aggregated to satisfy the past presence test but the DWP continue to argue that he does not have a genuine and sufficient link in either State. 
My question is - Is it possible to argue only the periods of residence without my client demonstrating that he does not have a genuine and sufficient link in either State?  I am not sure whether I am missing something when reading the EU Regulations .They are quite complex and not easy to understand .

It’s in the PIP regs.  Reg 22 serves to disapply the past presence test. If the claimant cannot demonstrate a sufficient link etc, he can still aggregate periods of residence in another EEA country to satisfy the test. 

Hi everyone,

Just giving an update on my case.
Unfortunately, the tribunal disallowed my client’s DLA appeal on the past presence test. The decision notice briefly states that there is no genuine and sufficient link to U.K and cannot rely on periods spent in Ireland, which is another EU state,  as not shown a genuine and sufficient link there.
I am disappointed with outcome and there is no mention of whether or not Article 6 applies . I have now requested a statement of reasons .

Has anyone had success with their cases relating to past present test, in partucular where a claimant cannot demonstrate a genuine and sufficient link ?

Tahra

Unfortunately , no- one has responded to my earlier post.

I have now received the statement of reasons   which records that Article 6   cannot be engaged.  This is because he has not demonstrated a genuine and sufficient link (ie employment /self – employment )  in Ireland and therefore, the periods cannot be aggregated. 
My reading   of Article 6 is that periods of residence completed in another member state can be aggregated, as though they were periods completed under the legislation it applies to .

Am I missing something?  Does anyone else have any further thoughts on this?

I agree with you and have just had a case turned down on the same point. I’ll be appealing to the UT on the basis that article 6 is free form the genuine and sufficient criteria. It’s worth going back to the UK rules to see where this comes from.

In the PIP/DLA/CA Regs, you find a stipulation that the past presence test does not apply where the three criteria nevip mentions are satisfied. Namely, you are habitually resident, the Regulation applies and you can demonstrate a genuine and sufficient link to the social security system of the (NB not any other member state).

Article 6 works differently. It says that you aggregate periods of residence (not presence) where such a test exists. This is not the same thing as disapplying the test. There is a potential debate about whether residence means presence in this context but I would argue that it does for reasons I can go into later. There is absolutely no genuine and sufficient requirement expressly in article 6.

The genuine and sufficient test comes, as far as I know, from Lucy Stewart C-503/09. That was a case of IB(Y) being exported under the old social security regulation 1408/71. They relied on the waiving of residence clause and not the principle of aggregation. In that case, the Court ruled that they could not rely on the waiver of residence clause. but that the Regulation had to be interprted in a Citizenship-friendly manner, i.e. they said that article 21 TFEU would help, so long as the claimant could show a genuine and sufficient link to the social security system of the competent state (in this case, the UK). And then the Court says what you have to do to show that. Again, the principle of aggregation was irrelevant in Lucy Stewart because she was trying to claim IB(Y) from Spain - she failed the presence test.

The argument that the claimant did not have a genuine and sufficient link to the social security system in Ireland is, to me, nonsense. The Regs say it must be with the UK.

The principle of aggregation is, for the first time in article 6, a general principle of the system. It used to only apply to some benefits such as sickness benefits, but now applies generally. The Regulation represents a modernisation and simplification of the system. Because article 6 makes no mention of the genuine and sufficient business, I would argue, then such considerations are irrelevant.

Hi Matthewjay,

Thanks for your reply and information.

Yes , I am too going to lodge a permisssion to appeal application for the reasons you mention.

I had to get up to speed with all this due to an appeal. Thankfully we won - it was an Irish National but we did not have to use 883/2004 as the Judge accepted genuine and sufficient link to UK social security system.

You are right - Art 6 of 883/2004 does not make aggregation dependant on genuine and sufficient link to the previous EU state, but the problem is Art 2;

Article 2

Persons covered

1. 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
States, as well as to the members of their families and to their survivors.

What does “subject to the legislation of one or more member states” mean? See P.1645 CPAG - under REG 1408/71 it meant working in that state and paying NI unless you were a student or family member.

So this may be what the Tribunal were getting at, though they did not express it correctly?

After getting my head round this complex area again !  I have looked at the point you (PCLC ) raised and you are right that it is Article 2 that is the main issue.
As you rightly say, this is what the tribunal should have expressed and not the sufficient and genuine link. So, the crux is that my client did not satisfy the second condition of the   qualifying past presence conditions in accordance with paragraph 2 - SS (DLA ) Regulation 1991, which means that a claimant has to be within the personal scope of the EU Regs , namely 1408/2007 or 883/2004 in order to be covered by the co –ordination rules.
It sounds as though my client has poor prospects of succeeding with a further appeal !

Hi

Just interested in why you don’t think your client would have satisfied Art 2 in Ireland?

Hi PCLC,

My client came from Romania and lived in Ireland from 2008 until he moved to the UK in December 2012 .
Unfortunately, my client has never legally worked or paid NI. He only engaged in some undeclared work and had some savings .  His health deteriorated in Ireland and he did try to claim some incapacity related benefits but did not succeed. The same happened in the U.K , benefits were mainly refused on the right to reside issue.
He claims that he has never legally worked or received any social security benefits in any of the EU countries. He was financially   supported by his non – dependent children who were also carrying out undeclared work .

I think you are right on the poor prospects, the only possible avenue for Art 2 might be from 01/01/07 when Romania joined the EU until he left for Ireland? Did he work and pay NI as such in Romania after 01/01/07?

As it is a DLA claim for a child, it looks like in any event the parent cannot satisfy the test of DLA Regs 2A(1)(C) (inserted by the DLA Amendment Regs 2014 Reg 4(4) “the person can demonstrate a genuine and sufficient link to the United Kingdom social security system”.

The PIP Regs have identical provisions.