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PIP & DLA - using father’s NI and work status in another EU country as refusal

JojoMitchell
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Hi there

I’ve been emailed twice in the last 2 weeks from claimants who have had their PIP DL refused with the reasons given as:

`The UK is not the competent state to pay sickness benefit as the parent who you are dependant on your father is working and paying National Insurance contributions in Malta/Denmark…’ 

One “child” is 26 and the other 11 months old.  The 11 months old was refused DLA despite being born and living in the UK to British parents one of whom (father) works 6 months out of the year in Denmark. 

The 26 yo was born in the UK but when he was 1 year old he went with his British born mother to live in Malta. Both mother and son have dual nationality and British passports. The father is a Maltese citizen. They returned to the UK on 12th March 2019 and the father has remained in Malta & will not be joining them in the UK.

Many thanks

Elliot Kent
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So we are talking about the EU co-ordination rules here. Your first claimant (11 months) passes the past presence test, but nonetheless isn’t entitled to benefit because s72(7A) precludes payment of DLA (care) in a case where the UK is not the competent state in EU law. Your second claimant (26) fails the PPT but seeks to avoid the consequences of that failure by relying on EU law. The two cases are basically the inverse of one another but they both turn on the application of EU law and specifically the understanding of the “competent state” for payment of sickness benefit under Regulation (EC) 883/04.

Determining the competent state is notoriously complicated and I don’t claim any particular expertise. Doing my best:

In your first case, the 11 month old child only personally has any sort of connection to the UK, however the Regulation also requires consideration of their family members. Because the child is still under 18, he is a “minor child” of his father and so counts as a family member of his father. (Art 1(i)(2)).

If we were to restrict ourselves to looking at the child’s circumstances and ignore his father for the moment, then the UK would be the competent state solely on the basis of the child’s residence here. We can work this out by going to Art 11(3). We can see that none of the conditions from (a)-(d) apply and therefore, under 11(3)(e), the competent state is the state in which the claimant is resident - which is the UK. So he has an “independent right” to sickness benefit from the UK.

However, we need to look at the father also. His competent state is, going on the facts provided, Denmark - because that is where he is employed (see 11(3)(a)). The child therefore has a “derivative right” to sickness benefit from Denmark.

Art 32 sets out the approach to determining priority in these situations. It provides that a derivative right will generally give way to an independent right - except when the independent right arises only by pure residence. Which is what is going on here - the child’s independent right to benefit from the UK is superseded by the derivative right to benefit from Denmark. So the competent state would appear to be Denmark and the DWP would seem to be right.

In your second case, given the age of the claimant, they are not a “minor child” so the question becomes whether they are a “dependent” of either or both of the parents. It is a bit difficult to see how they could be dependent on the father - given that he is in an entirely different country - but perhaps he could be a dependent of mum.

You have not told us what these folks are doing in terms of their incomes. It would be extremely important if, for instance, either or both of them are receiving some sort of retirement or sickness income from the Maltese state. But if we assume that they have both come to the UK with clean slates and are now claiming UC or some such, then on the face of it - applying Art 11 - they will each have the UK as their competent state.

But proving that the UK is the competent state is not enough - he would also have to show that he meets the additional test of having a “genuine and sufficient link to the United Kingdom social security system” which is a somewhat nebulous requirement coming out of an ECJ case called Stewart and which is included in reg 22 of the PIP Regs. The closest guidance on this is in Kavanagh v SSWP [2019] EWCA Civ 272 which may provide some assistance and suggests it is a fairly low hurdle.

I would certainly be challenging the conclusion in this case as - unless the father is sending over significant amounts of money or some such - the conclusion that the claimant is dependent on the father doesn’t seem sustainable.

Also - the other aspect of this is that if the DWP say that the UK is not the competent state, that is not the end of it. They need to refer the case to the appropriate authorities in the state which they say is competent so that they can consider entitlement to analogous benefit. See Art 81, SSWP v HR (AA) [2014] UKUT 571 (AAC); [2015] AACR 26 & Appendix 2 to ADM Chapter C2. This is frequently forgotten and cases are almost invariably either not referred to the other state or else manage to disappear into the ether.

I hope this helps and is not too obscure. Hopefully someone can come along and correct me if any of this is wrong or unclear.

[ Edited: 29 Jul 2019 at 11:20 pm by Elliot Kent ]
Paul_Treloar_AgeUK
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Elliot Kent - 29 July 2019 10:49 PM

But proving that the UK is the competent state is not enough - he would also have to show that he meets the additional test of having a “genuine and sufficient link to the United Kingdom social security system” which is a somewhat nebulous requirement coming out of an ECJ case called Stewart and which is included in reg 22 of the PIP Regs. The closest guidance on this is in Kavanagh v SSWP [2019] EWCA Civ 272 which may provide some assistance and suggests it is a fairly low hurdle.

Just on this point of showing a genuine and sufficient link to the UK social security system, doesn’t Kavanagh establish that the claimant must in fact show simply a genuine and sufficient link to the UK - small point but important in the wider scheme of things?

Elliot Kent
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Paul_Treloar_AgeUK - 30 July 2019 09:14 AM
Elliot Kent - 29 July 2019 10:49 PM

But proving that the UK is the competent state is not enough - he would also have to show that he meets the additional test of having a “genuine and sufficient link to the United Kingdom social security system” which is a somewhat nebulous requirement coming out of an ECJ case called Stewart and which is included in reg 22 of the PIP Regs. The closest guidance on this is in Kavanagh v SSWP [2019] EWCA Civ 272 which may provide some assistance and suggests it is a fairly low hurdle.

Just on this point of showing a genuine and sufficient link to the UK social security system, doesn’t Kavanagh establish that the claimant must in fact show simply a genuine and sufficient link to the UK - small point but important in the wider scheme of things?

Yep, exactly right Paul. I copied and pasted from the regs but of course the regs were found to be unlawful. Serves me right for posting past my bedtime.

JojoMitchell
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Yes, the court of appeal decision is a saving grace!  The 26 yo son and his mother passed the HRT for UC which is good.  I had ignored the competent state for the baby as it seemed absurd when both parents are UK citizens and the father’s job means he has to work away from home.  But yes, he is paid by a Danish company.  So used to this being an issue for clients that have come to the UK and not those clients born here.

ClairemHodgson
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what about the baby’s mother?  just because dad works away 6 months of the year, doesn’t mean mother, who doesn’t, doesn’t have the relevant connection/contributions/etc etc etc

Mr Jim
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Does dad work the other six months of the year in the UK?

JojoMitchell
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The mother was working but was made redundant in May 2018.  She might well go S/E.  The father’s contract as far as I am aware means that he is employed by a Danish company and works 6 months there.  I’m guessing that the remainder he works from the UK.  He pays tax etc to the Danish equivalent.

If the mother were to go S/E, could you argue that the child could derive rights from her and if so, would there then be a dispute between 2 competent states?

ClairemHodgson
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The father’s contract as far as I am aware means that he is employed by a Danish company and works 6 months there.  I’m guessing that the remainder he works from the UK.

probably need clarity/exactitude, not guesswork, on that

1. is his only job with the danish company in denmark?
2. if he works in the UK the other 6 months, is that with the danish company or someone else or self employed - and to which state is tax paid?  hardly to denmark, if he’s here.
3. if (2), then how can DWP be right about which is the correct state?

As for mother’s position….

sounds like she was made redundant whilst pregnant!