Attendance Allowance and failing of residence and presence test

Hi all, I hope someone can help with my query, this is a brief background

My elderly client went on a Mediterranean cruise from Genoa on 4 February 2020. On her return, she and her husband decided to stay briefly in their house in Provence as they wanted to put this on the market for sale due to Brexit, before returning to the UK. However, the pandemic started and it quickly spread across European countries including the south of France. My client stated that in France elderly people were instructed by local authorities to remain indoors and volunteers were sent to the shops to obtain necessary supplies which were left on the doorsteps. My client and her husband were isolated in the tiny village where they were residing and she became very anxious and stressed, leading to a deterioration in her physical and mental health. Many attempts were made to book flights for family to come to support them both and to help them to return to the UK. Once France began to open a little, border requirements for documentation providing vaccination status making returning to the UK extremely difficult, they eventually arrived back in the UK in June 2021. They were unable to sell the property in France during this time.

When in the UK, they received news of a prospective buyer and reluctantly sailed back to France on 1 October 2021, hoping to sell the property quickly and return to the UK, but unfortunately the sale fell through, they then decided to leave the property in the hands of the local French agent and return home, they booked a one way flight for 12 November 2021 but unfortunately a few days before the flight was booked, they experienced tremendous pain and inflammation in her left leg and was rushed to hospital, this turned out to be a bursting of the synovial sac in her knee, she was completely immobilised and confined to a wheelchair and was informed that she needed to replace the partial to a full prosthetic knee joint to reduce inflammation and to avoid a threatened dangerous infection. she was yet again not able to leave France. My client had the operation on 10 June 2022 and family members took it in turns to fly over to France to care for her, she was then given the all clear by the doctors and arrived back in the UK on 7 August 2022.

My client applied for AA on 2 September 2022, but this was refused as she failed to residence and presence conditions.

Both herself and her husband have lived in the UK and both receive state pensions and occupational pensions in the UK.

I have noted that it states in the regulations that the residence tests may not apply if you, apply under the special rules for terminally ill people, can be treated as having been in the UK while living abroad – this applies to service personnel and some EEA citizens. If the latter, you must be covered by co-ordination rules and able to demonstrate a genuine and sufficient link to the UK, are a UK citizen living in an EEA state or Switzerland and have a genuine and sufficient link to the UK – for example, you receive a UK State Pension. Not sure if I am understanding this correctly but could this be relevant as she receives benefits in the UK?

I understand that they were not in the UK for a significant period of time but are there any exceptional circumstances due to the pandemic that could be used to challenge this decision?

Any advice would be greatly appreciated

Many thanks

Nicola

I think (although I stand to be corrected) that in order for the residence in France to count towards the past presence test in the UK that your client would need to show she was exercising treaty rights in France which doesn’t appear to be the case here.

Thanks for the response, I thought she would not be eligible but thought somebody might know something that I didn’t

Article 2 of Regulation (EC)883/2004 provides

This Regulation shall apply to nationals of a Member State, stateless persons and refugees residing in a Member State who are or have been subject to the legislation of one or more MemberStates, as well as to the members of their families and to their survivors

Regulation (EC)883/2004 covers cash sickness benefits, sickness benefits in kind,  pensions (See Articles 23-30) and other benefits.

Attendance Allowance is a cash sickness benefit and it is exportable.  It can potentially be awarded to someone with a UK state retirement pension who lives elsewhere in the EU and the person can claim it whilst residing in another EU member state if they are covered by the withdrawal agreement.

The pensioner does not have to have worked in the other member state in order to be covered by Regulation (EC)883/2004.

It is at least arguable that this could get your client round the past presence rule as the UK would remain the competent state throughout the time when your client was resident in France