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appeal - past presence rules - help!
I have posted on this subject before, but hoping that someone can help as I am panicking a bit. I have never argued a case at tribunal on EEA nationals/past presence rules before so all advice gratefully received.
The case I am appealing relates to the past presence rules for DLA. Claimant is a child; Family are Polish. Arrived in UK 2013. Family used to get equivalent disability benefit in Poland but this ended when they came to Uk. Dad is working here - so I guess this makes UK competent state.
The claim for DLA was initially allowed on the grounds that Dad was working but it seems that when Mum claimed CA and provided Dads payslips, earnings were below threshold for nics and so DWP are saying there isnt a genuine and sufficient link to SS system. He wasnt earning enough to pay NI at the time of the claim for DLA
I have raised two arguments: 1. I have used the Lucy Stewart case C-503/09. In this case, it was decided that there was a genuine and sufficient link bassed on NI credits in the UK.
In my case, Dad was earning below the threshold for Nics at the time of the claim. However, he was earning above the lower earnings limit. If I have understood this correctly, this means that Dad doesnt have to pay NI (below primary theshold) but that he is “treated as” if he did - and the govt make a credit to allow people to benefit from SSP etc (and this counts towards SRP also?). I have therefore argued that like the Lucy Stewart case which was based on credits only, My claimant should be treated as having a genuine/sufficent link to the SS sytem. I would be really interested to have views on this argument. Is there any other case law I could use? Has anybody used this argument before? My comments were totally ignored in the appeal submission made by the S of S
The second argument was around aggregation, as Dad worked in Poland before coming to UK. but the submission states that under the aggregation rules any periods recognised as insurance for whether from residence, employment or self emplyment in another member state, can be aggregated with residence in the UK in order to satisfy the past presence rules. However, it then states that because Dad wasnt paying NICs in the UK at the time of the claim, he cannot aggregate his work in Poland to satisfy past presence. I didnt read the test like this - I read the aggregation rules as seperate -so that he could rely on periods in work in another country to meet the time needed to satisfy the past presence rules and that this test was independant of the need to have a genuine/sufficient link (because if you had a genuine/sufficient link - why would you need to rely on past periods?) again, I would be grateful if anyone could clarify this for me
Thank you :)
I am embroiled in a similar case, DLA claim for an EU child, adjourned twice now for further submissions from DLA. I think your analysis is spot on, the problem is that DLA (as in my case) are either deliberately trying to defend the indefensible or are genuinely confused about what is admittedly a legally complex issue.
The main caselaw is, as you said, the Stewart case - there is another one now the Court of Appeal case of Garland
http://www.bailii.org/ew/cases/EWCA/Civ/2014/1550.html
You are also spot on - if genuine and sufficient link is accepted the past presence test is dis applied so aggregation should not come into it!
thats great thank you - will take a look at that case law now :)
I didnt read the test like this - I read the aggregation rules as seperate -so that he could rely on periods in work in another country to meet the time needed to satisfy the past presence rules and that this test was independant of the need to have a genuine/sufficient link (because if you had a genuine/sufficient link - why would you need to rely on past periods?) again, I would be grateful if anyone could clarify this for me
I agree with both of you and suspect it’s more that they’re confused especially as the Lucy Stewart case concerned a different benefit, claimed in a different country, under a different provision of the old Regulation. I actually find extrapolating the main points of Lucy Stewart to DLA very difficult.
And just to add, he does not need to rely on periods of work in another EEA country but periods of residence. This may be relevant if the parents’ work history in Poland does not cover the full period.
Thankyou Matthewjay - I find it all very difficult and im not looking forward to this hearing at all; but thankyou for pointing out that it is residence and not just work under the aggregation rules, I must admit that I had missed that bit - my brain didnt register the words even though I read them; just hoping sense will prevail at the hearing (and I dont make a fool of myself lol)
morning all :)
I would like to ask for some further advice on this issue please. A quick update, the DWP conceded that they needed to look at the aggregation rules before the appeal and so asked that the appeal (which had been listed) was postponed to allow them to look at this afresh. We provided as many documents as we could relating to the Fathers work in Poland. These were in Polish so had to be translated. I have now recd a supplementary submission to say that From August 2011 - June 12, the gentleman worked and paid nics (10 months) from July 2012 to jan 2013 he was unemployed; and from june 2013 to august 2013 he was employed but no evidence of contributions paid.
The claim for DLA was made in the UK in Sept 2013. DWP are counting 46 weeks for the work in Poland and are saying that the claim therefore can be considered on 5/11/2014. (104 weeks). They have not lapsed the appeal as they say the tribunal may not agree.
I have two questions:
if the rules for DLA say that the claimant has to have been present in the CTA for at least 104 weeks out of the last 156 weeks, does this have to be continuous? does it run chronologically from date of claim backwards? the reason I ask this is because if the claim was made sept 2013, three years prior to this was sept 2010. The documentation I have appears to show that this man was employed by the same company from July 2010 to april 2012 - so not sure why they havent included this period?
My second question is that the rules seems to say that is it periods of insurance or residence that count. I can understand there needing to be nics if the benefit is question is a contribution based benefit but Im not sure if there would need to be contributions for a non c-based benefit?
any advice would be gratefully received
1) I do not see why the test should be continuous. It certainly doesn’t read that way. I don’t know of any case law on it, though, and as far as I can remember, all my clients in the past have had continuous residence.
2) I agree: periods of employment and nics are irrelevant for DLA. They should be looking at past residence alone otherwise they are applying a different set of rules to foreign nationals which is clearly directly discriminatory.
thank you Matthew. Hope a further submission on those issues will end the dispute once and for all. Have a good weekend