DLA, Reg 883/2004, art 6 and Case C-503/09

Hi

I have a DLA appeal against a decision decided before April 2013, so past presence test is 26/52. Client moved here from Lithuania and claimed DLA after about 5 months. Refused as failed PPT. DM didn’t even consider social security co-ordination rules.

My understanding of article 6 of Reg 883/2004 is that it should be quite simple: if you have a PPT, you can aggregate time spent in the home country with that in the host in order to satisfy the PPT. So I can add one of the months spent in Lithuania to the 5 months spent here and, bingo, entitlement.

Alternatively, you can use Reg 2A of the DLA Regs to disapply the PPT if you satisfy certain criteria (incl being HR and have a sufficient link to the UK soc sec system). The result is the same but the logic is fundamentally different and you can use either argument.

But the CJEU case C-503/09 Stewart and DMG Memo 19/12 have confused me. In that case, which was decided after the entry into force of 883/2004 but under 1408/71, it was decided that, relying on Citizenship principles rather than any article of the Regulation per se, the PPT in IB(Y) was unlawful as too narrow. You have to look at whether there is a genuine link other than this. The DWP applied this reasoning to DLA etc in DMG Memo 19/12, and it is also the test we now have in Reg 2A.

Is my initial understanding of art 6 of 883/2004 correct? Stewart concerned article 10 of 1408/71 which has become article 7 of the new Regulation. According to Sweet & Maxwell, article 6 of the new has no corresponding provision in the old. A similar provision appears in article 18 but this related to sickness benefits and IB(Y) was not a sickness benefit so was not applicable.

The principle of aggregation being elevated to a general principle, you can therefore use either article 6 (?which should be directly effective) OR reg 2A. And this applies to DLA care and mobility.

I think having written this I’ve understood but if I’m wrong, I’d appreciate it if someone could tell me.

Thanks
Matt

here’s a link to the rightsnet news story on the ecj stewart judgment -

http://www.rightsnet.org.uk/news/story/whether-claimant-living-in-another-eu-country-entitled-to-incapacity-benefi

and the decision itself -

http://curia.europa.eu/juris/liste.jsf?language=en&num=C-503/09

and here’s dmg memo 19/12 -

http://www.dwp.gov.uk/docs/m-19-12.pdf

Sorry, just realised someone else has already asked essentially the same question here: http://www.rightsnet.org.uk/forums/viewthread/6596/

I agree with you Matt .  I have a similar case where I am actually arguing aggregation of periods of residence in accordance with Article 6 .
The case was due to be heard on 30/06 but it was postponed . It appears that the Judge considered the case before the hearing and issued a direction notice . Judge has asked DWP to comment   on why the application of Article 6 cannot be applied.

See   the discussion headed -  Hab Res for UK or Republic of Ireland claim

here’s a link to that thread -

http://www.rightsnet.org.uk/forums/viewthread/6411/

Matthew - I wonder if you know anything useful about a problem relating to an issue I have. British citizen living in Malta and intending to return after a replacement operation.  Wants to apply for A. A.  I have re-read the legislation and made enquiries with DWP, more than once, because client is insistent.  I believe that to claim he would have had to been resident for not less 104 weeks out of the last 156 weeks in the G.B. PAGE 286 Disability Rights Handbook.  Am I missing something that you know of.  many thanks.

As far as I can see the past presence rules for AA are exactly the same as DLA.

First of all, for all of this, your client would need to be habitually resident. The EU Co-ordination Regs only help with the past presence bit. So if your client has been away from the UK for a long time, s/he might not be hab res straight away.

Basically, art 6 of Reg 883/20004 should assist. You just add up the time spent in Malta with time spent in the UK to satisfy the test.

However, you would also need to show that the UK is the competent state for the purposes of the Regulation. One of the general principles of the Regulations is that there should only be one Member State which administers benefits for any given individual. Malta might be this state and it might be that your client can export Maltese sickness, invalidity and other benefits to the UK (you can get an idea of what benefits these might be from the Commission’s website [http://ec.europa.eu/social/main.jsp?langId=en&catId=858] - though not sure how up-to-date these documents are). The competent state is usually the state where you work or where you receive an unemployment benefit.

If your client receives a pension, it might get more complicated.

Alternatively, you’ve also got regulation 2A of the AA Regs. This disapplies the past-presence test where:

- you are habitually resident
- Reg 883/2004 applies (it does)
- you can show a genuine and sufficient link to the social security system of the UK. This includes things like having paid NI contributions, having spent part of your life here, receiving other benefits: see paras 97 - 101 of the Lucy Stewart case ros has posted a link to above.

It’s an incredibly complex bit of law which I don’t profess to understand fully but hope that helps.