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Forum Home  →  Discussion  →  Residence issues  →  Thread

DLA/PIP entitlement and EU co-ordination rules conundrum - help please

past caring
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Welfare Rights Adviser - Southwark Law Centre, Peckham

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I don’t come across too many of these (ok, it’s my first) so am not sure if I’m on the right track. Apologies for the length of this post, but I think it needs to be this long, unfortunately…..

Facts

Client is a Finnish national. Came to UK 1994 and appears to have worked for some of 94 and 95 before having to give up work due to ill health. At some point (probably 2002, but not clear) he claimed and was awarded DLA - highest rate of both components awarded. Receives Finnish benefits which were at all points declared to DWP offices paying Invalidity Benefit, IB, IS and later ESA. It appears very likely (though enquiries with the Finnish authorities are not yet concluded) that these will count as pensions for the purposes of Reg (EC) 883/2004.

In June/July he underwent PIP migration. This was the first point at which he was asked about Finnish pensions by DLA/PIP. Decision 26/7/2018 that he was not entitled to DLA care component from 14/8/2010 (this is the date from which s. 72 of the Social Security Contributions and Benefits Act 1992 was amended to include subsection 7B - which precludes entitlement to DLA care/PIP daily living to those to whom the co-ordination rules apply where the UK is not the competent state for paying cash sickness benefits) - client has appealed.

The appeal is a bit of a mess (which I can sort out) because he appealed the DLA decision on competency but not the PIP decision for those reasons - the PIP decision (which was limited to the mobility component - non-entitlement to the daily living component on the basis of the co-ordination rules was taken as a given) was appealed solely on the basis of his actually meeting the qualifying/mobility conditions. Obviously, the DLA appeal is redundant (he cannot continue to get it because of the PIP conversion and DWP are not seeking recovery of the ‘overpayment’) but the PIP appeal needs to encompass the co-ordination rules aspect - that aspect almost certainly needs to be determined separately and first. But as I say, I can sort this…...

The problem

The question is, assuming the Finnish benefit are in fact pensions - and following SSWP v AK [2015] UKUT 110 (AAC) - is there an arguable case? The difficulty is this (essentially following the reasoning of AK);

- Art. 11(3) of Reg (EC) 883/2004 provides for determining which is the competent state;
(a) a person pursuing an activity as an employed or self-employed person in a Member State shall be subject to the legislation of that Member State;
(b)  ………….
(c) .............
(d) ………...
(e) any other person to whom subparagraphs (a) to (d) do not apply shall be subject to the legislation of the Member State of residence, without prejudice to other provisions of this Regulation guaranteeing him/her benefits under the legislation of one or more other Member States.

- Art 11(3)(e) is a problem where the EEA national is receiving a pension from another member state and the UK is only the competent state through residence.

- Art 25 provides that where an individual is receiving a pension from another member state and is residing in a member state where entitlement to ‘benefits in kind’ (i.e. in the UK NHS healthcare) is free and they do not also receive a pension from the state of residence then the state which pays a pension is responsible for the cost of healthcare.

- and Art 29 provides that where a person is receiving a pension, cash sickness benefits (in this case DLA care/PIP daily living) are to be paid by the state which is competent (responsible) for paying the cost of benefits in kind.

So, the fact that, the UK government may not have claimed the cost of NHS healthcare from the Finnish authorities does not matter - it could do if it wished. Not having claimed doesn’t change who is responsible. and if the Finnish government is competent for the cost of benefits in kind it is also competent for cash sickness benefits. Initially, I thought this stuffed my client but looking at things further…...

1. What Art 25 actually says is that;

the cost of benefits in kind provided to him/her and to members of his/her family shall be borne by the institution of one of the Member States competent in respect of his/her pensions determined in accordance with Article 24(2), to the extent that the pensioner and the members of his/her family would be entitled to such benefits if they resided in that Member State.

[Apologies - the forum restrictions on post length now require a second post - to be continued]

[ Edited: 3 Jan 2019 at 06:10 pm by past caring ]
past caring
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Welfare Rights Adviser - Southwark Law Centre, Peckham

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2. Art 24 provides;

1.  A person who receives a pension or pensions under the legislation of one or more Member States and who is not entitled to benefits in kind under the legislation of the Member State of residence shall nevertheless receive such benefits for himself/herself and the members of his/her family, in so far as he/she would be entitled thereto under the legislation of the Member State or of at least one of the Member States competent in respect of his/her pensions, if he/she resided in that Member State. The benefits in kind shall be provided at the expense of the institution referred to in paragraph 2 by the institution of the place of residence, as though the person concerned were entitled to a pension and benefits in kind under the legislation of that Member State.

2.  In the cases covered by paragraph 1, the cost of benefits in kind shall be borne by the institution as determined in accordance with the following rules:

(a) where the pensioner is entitled to benefits in kind under the legislation of a single Member State, the cost shall be borne by the competent institution of that Member State;

(b) where the pensioner is entitled to benefits in kind under the legislation of two or more Member States, the cost thereof shall be borne by the competent institution of the Member State to whose legislation the person has been subject for the longest period of time; should the application of this rule result in several institutions being responsible for the cost of benefits, the cost shall be borne by the institution applying the legislation to which the pensioner was last subject.

- para (1) would appear to work against my client, but remember, it’s not relevant - Art 25 says it’s 24(2) we have to consider…..

3. I’m thinking 24 (2)(b) might do it. Client has, according the records I’ve seen from the Finnish authorities, 17 years and 6 months insurance periods under Finnish law - i.e. from his 16th birthday to the date he came to the UK. He has resided longer (24 years) in the UK - but that doesn’t necessarily mean he was subject to its legislation.

4. However, he was subject to UK legislation whilst working and paying NI. He is/was also subject to UK legislation whilst receiving IS and income-related ESA top-ups to his Finnish pensions and whilst receiving DLA mobility component (these are listed as special non-contributory benefits - along with DLA mobility component under Annex X). I don’t have a complete breakdown of the periods when IS/ESA was paid but it looks likely that they have been paid throughout, with only very short gaps, if any.

So, will this do it, if the facts turn out right - i.e. if it can be shown that his near continuous receipt of (albeit reduced) IS/ESA and IS’s precursor from 1995 has made him subject to UK legislation for longer than Finnish legislation? Or have I got this wrong?

 

[ Edited: 3 Jan 2019 at 06:01 pm by past caring ]
ClairemHodgson
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no clue but it looks complicated enough that

1. the DWP will get it wrong until it gets to UT and they get someone with a brain on it (counsel)
2. you probably need counsel yourself

Paul_Treloar_AgeUK
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Information and advice resources - Age UK

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If he worked and paid NI cont’s, is there any possibility of establishing whether he has any potential entitlement to a UK State Pension? It’s fairly straightforward to get a pension forecast now.

I certaintly think your point about length of respective residence is worth exploring.