Attendance Allowance and “member of the family”

Hi All,
Your input on this gratefully received:
I have a client (C) from Somalia who came to the UK via Kenya. Her daughter, who cared for her, passed away and she went to Kenya to be looked after temporarily. She applied for a visa from Kenya to move permanently to live with another daughter, so she could care for C. They applied for AA and this was refused as she had not been present in the UK for long enough (past presence test).
There is currently an appeal lodged about this and I am preparing a submission. This is an appeal about the PPT as such.
I learned today that the daughter of the C is a Dutch national who has applied for Settled Status. So I have been looking at whether C is covered by the EU coordination rules as a “member of the family” (MOTF) of her daughter.
My understanding is this:

MOTF is that which is defined in the relevant benefit law (AA), or
if that law doesn’t specify, is the spouse or child of the EEA national.

I’ve had a look at the AA regs and the only mention of family members is in relation to exceptions re those in the armed forces and the terminally ill.
I’ve also had a look at a DLA case PB v SSWP CDLA/2186/2015, para’s 8-10, which found in that case a sister of the C was not a member of the family as it wasn’t defined by DLA law.

So, taking this all into account, am I right that AA doesn’t define who’s a “member of the family” and so my C is not MOTF of her daughter?

Art2(2) Directive 2004/38/EC   provides

    “Family member” means:
      (a) the spouse;
      (b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the
          legislation of a Member State, if the legislation of the host Member State treats registered partnerships as
          equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host
          Member State;
      (c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as
          defined in point (b);
      (d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point
          (b);

I think (d) would apply in your client’s case

For what it’s worth I have a similar (PIP) case that will be heard by a Tribunal on Thursday

Stainsby - 21 December 2021 05:51 PM

Art2(2) Directive 2004/38/EC   provides

The issue is that the definition of “family member” for the purposes of Directive 2004/38/EC (i.e. the free movement provisions) and the definition of “member of the family” for the purposes of Regulation (EC) 883/2004 (i.e. the co-ordination rules) are, helpfully, not the same.

Because the legislation relating to AA does not provide for any particular relevant definition, the default position under Art 1(i)(2) of the Regulation is that only a spouse or a child of the EEA national constitutes a member of the family and, as neither is the case here, there is no assistance from the co-ordination rules.

Patrick_SPAC - 21 December 2021 12:58 PM

There is currently an appeal lodged about this and I am preparing a submission. This is an appeal about the PPT as such.

I am curious what the grounds of appeal are, given that there does not appear to be any application of the co-ordination rules or exemptions to the PPT at play - is it not just a case of counting the weeks when the client was in the UK?

Check this out; https://www.bailii.org/ew/cases/EWCA/Civ/2019/272.html

I have done a bit more work since reading Elliot’s post

I was relying on Kavanagh myself but on closer reading it may not help because BK is an Irish National and MM is German ( so both are EU nationals)

Regulation Regulation (EC) No 883/2004 does not apply to third country nationals because the UK and Denmark were given an opt out (Recital 18-19 REGULATION (EU) No 1231/2010 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL) so the old Regulation (EEC) 1408/71 continues to apply

Article 1 (f)  of Regulation (EEC) 1408/71 defines ‘member of the family’ as

any person defined or recognised as a member of the family or designated as a member of the household by the legislation under which benefits are provided or, in the cases referred to in Article 22 ( 1 ) (a) and Article 39, by the legislation of the Member State in whose territory such person resides; where, however, the said legislations regard as a member of the family or a member of the household only a person living under the same roof as the worker, this condition shall be considered satisfied ‘if the person in question is mainly dependent on that worker;

There is no designation of “member of the household “in the PIP or AA legislation , the only place I can see any designation is that provided for in special non contributory benefits such as income based ESA.  The UK dessignation there is limted to the claimant, any partner and dependent children so that does not takke us very far (its effectively much the same as the definition in (EC) 883/2004)

Thank you for your comments. I was asked what the basis for the PPT appeal is. This relies on a discrimination argument following the DLA case [2020] UKUT 284 (AAC) which found the new PPT to be discriminatory. It’s a long shot, but I thought it was worth a punt. I’ll update you if something comes of it!