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Forum Home  →  Discussion  →  Residence issues  →  Thread

CB ESA relying on NI paid in Germany and special non contributory benefits

phewitt15
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Welfare Rights / Accrington / Lancashire County Council

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I have a very tricky case and I am concerned it is going beyond me.
EEA National, working in Europe, met British partner. He became ill and moved back to UK, she followed shortly after to live with him, but as a single person friend, she claimed IS and carers allowance as a single person to look after him.
She was in UK as his carer for 8 years then he passed away, she claimed benefit after her IS and carers run on,  was refused ESA as no right to reside and shortly after HB mirrored that decision and ended. note - she states she is not fit for work now and wont claim JSA.

She came for advice after ESA had been refused at tribunal.

Checked and agree with right to reside decision, no family here, never worked in UK and as claimed as single person cant link to when he was exercising EU rights working in Europe.
But she has been getting NI as a carer for every year since she stopped working in Germany so asked ESA to check her NI record for years before she was a carer to see if she could get CB ESA, DWP were looking at whether Germany should pay her incapacity pension but her German NI has never been checked for CB ESA.

First Tier have set aside previous decision as CB ESA was not considered, they have instructed DWP to do new submission looking at CB ESA and whether German contributions would be relevant.
And they have instructed by (rep) to clarify precisely which EU regs or directives allow contributions in Germany to be taken into account.

they have given 28 days.
I thought it was just the EU coordination rules that would allow employment, residence and NI contributions paid in any state to be aggregated but I am doubting myself now and going in circles.
Any pointers would be appreciated.
My initial basic argument was that CB ESA relevant contribution years can ignore the years as a carer and look to years prior to that to see if NI was paid up to relevant level. She was in Germany for those years so German NI should be checked and used to check her CB ESA - is it this simple or could this go into competent state territory?

Should I be considering special non contributory benefit payments? (where do I start with that)

Any help would be appreciated - especially on whether there is any reason CB ESA wouldn’t count her german record?


Elliot Kent
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I just wanted to bump this as I’m sure someone can give a better answer than I can.

Also - fantastic work getting the FtT decision set aside. Given that the case will have been presented to the Tribunal as just a right to reside issue, it’s a really good spot that actually though a combination of the status of ESA as a single benefit, the relaxation of the first contribution condition AND the EU coordination rules on aggregation - it might be that this claimant is actually entitled to some ESA after all on the basis of contributions made a decade ago in another country. Good day in the office.

And of course, social security law is dead simple and appeals can be handled without any need for representation…

phewitt15
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Thanks Elliot, sounds like I’m not too far off, I just need to respond to the tribunal with ... ” the representative is asked to clarify precisely which regulation and which EU regulations or directives allow contributions from Germany to be taken into account”
I just thought it wanted more specifics than the EU coordination rules, so I am getting the big books out but any help would be appreciated

Elliot Kent
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Okay then, in the absence of any other replies, I will take a crack at it.

So as far as domestic law goes, you have already identified:
(1) A claim for ESA is a claim for cESA and irESA - therefore both need to be considered on any application.
(2) The absence of a right to reside is an answer to the irESA aspect of the claim but not to the cESA aspect
(3) For the purposes of cESA, we need to consider the first and second contribution conditions. The second is met and the first is relaxed because of your client’s history of receiving carers allowance.. Therefore we are looking at earlier tax years for the purposes of the first condition - and your client was in Germany during this time.
(4) If the contributions which your client apparently paid during these tax years in Germany were considered, then (we assume) she would meet the first condition. If they can’t be considered, then she would fail it.

So, we are trying to use the principle of aggregation under the co-ordination rules so as to rely on the payments made in Germany in the tax year in question and if we can do that, then your client is entitled to succeed (assuming that sufficient NI was paid in Germany).

Benefits for Migrants at 264 sets out the general approach to be taken to questions of co-ordination relying on Regulation (EU) 883/2004 and I am borrowing very heavily from that book here.

The starting point under Article 2 is to identify whether your client is within the “personal scope” of the Regulation. This depends on whether your client has been “subject to the legislation of one or more member states” and they are inter alia an EEA national. Your client has been “subject to the legislation” of both Germany where she was working and paying NI and the UK where she was claiming benefits. She is an EEA national.  So she is within the personal scope of the Regulation.

We then want to check if the benefit we are looking at is covered by the rules. Contributory ESA is either a sickness or invalidity benefit (DMG 070152-5). It doesn’t really matter which for our purposes.. Both are covered by Article 3(1) head (a) or (c). So we are good so far.

The next question is the competent state. This is to say that one country is normally responsible for paying benefit of a particular type. We don’t really need to worry too much about this because your client isn’t employed or self-employed or receiving any benefits from any other state - so we just default to the country in which she is habitually resident - Article 11(3)(e). Nobody could seriously argue that she is not habitually resident in the UK and so the UK is the competent state.

We move on to looking at the principle we want to apply - which is aggregation under Article 6. We are saying that for the purposes of cESA which is “conditional upon the completion of periods of insurance” - the DWP should “take into account periods of insurance completed under the legislation of any other state” as though they were periods under UK law. Article 12 of Regulation (EU) 987/09 tells us that it is for the DWP to contact the relevant German authorities to establish this information and not for your client to prove it.

We are left considering if there are any special rules which would apply to the sorts of benefits we are looking at which means hopping back to page 214 of BfM. This shows us that there aren’t any special rules we need to concern ourselves with. If your client was claiming cbJSA, it would be a different matter because there are special rules relating to aggregation in the context of unemployment benefits under Articles 61 and 64 of the Regulation. But we aren’t looking at cbJSA so that’s not a problem.

So yes, I think that you are right and that assuming that sufficient NI on the German authority’s computers, your client ought to qualify for cESA.

I am however very happy for correction or clarification from anyone who knows more about this stuff because I do not claim to be an expert at any stretch.

[ Edited: 26 Oct 2018 at 09:48 pm by Elliot Kent ]
phewitt15
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Welfare Rights / Accrington / Lancashire County Council

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Thanks Elliot, this is extremely helpful, it’s given me confidence to write it up with the correct references too.
You are a life saver, Thank you so much, Pamela