Exporting CESA & DLA care post Brexit - URGENT

Hi

A British national and her husband moved to Cyprus on 02/07/23 and have been told by the IPC that she cannot continue to receive her CESA & DLA care.  The DWP toldher before they moved that her benefits would continue so this has come as a shock to her.

Are there any Agreements that can help her?

Thanks

1. The position is I think different for cESA in assessment phase on one hand and main phase cESA and DLA care on the other.

2. The reason for that difference lies in the fact that the UK EU Protocol on social security co-ordination being different from EU Regulation 883/2004.

Protocol or 883/2004?

3. The UK EU Protocol is a protocol attached to the Trade and Cooperation Agreement:  see <a>here</a>

4. The first question to ask when faced with one of these is to see which one applies- Regulation 883/2004 is preserved by article 31 of Withdrawal Agreement for those coming within the personal scope for Title III of the Withdrawal Agreement – see article 30 of that: <a >here</a>.  The personal scope article 30 is as follows:

Article 30
Persons covered
1.  This Title shall apply to the following persons:
(a) Union citizens who are subject to the legislation of the United Kingdom at the end of the transition period, as well as their family members and survivors;

(b) United Kingdom nationals who are subject to the legislation of a Member State at the end of the transition period, as well as their family members and survivors;

(c) Union citizens who reside in the United Kingdom and are subject to the legislation of a Member State at the end of the transition period, as well as their family members and survivors;

(d) United Kingdom nationals who reside in a Member State, and are subject to the legislation of the United Kingdom at the end of the transition period, as well as their family members and survivors;

(e) persons who do not fall within points (a) to (d) but are:
(i) Union citizens who pursue an activity as an employed or self-employed person in the United Kingdom at the end of the transition period, and who, based on Title II of Regulation (EC) No 883/2004 of the European Parliament and of the Council (13), are subject to the legislation of a Member State, as well as their family members and survivors; or

(ii) United Kingdom nationals who pursue an activity as an employed or self-employed person in one or more Member States at the end of the transition period, and who, based on Title II of Regulation (EC) No 883/2004, are subject to the legislation of the United Kingdom, as well as their family members and survivors;

(f) stateless persons and refugees, residing in a Member State or in the United Kingdom, who are in one of the situations described in points (a) to (e), as well as their family members and survivors;

(g) nationals of third countries, as well as members of their families and survivors, who are in one of the situations described in points (a) to (e), provided that they fulfil the conditions of Council Regulation (EC) No 859/2003 (14).

2.  The persons referred to in paragraph 1 shall be covered for as long as they continue without interruption to be in one of the situations set out in that paragraph involving both a Member State and the United Kingdom at the same time.
3.  This Title shall also apply to persons who do not, or who no longer, fall within points (a) to (e) of paragraph 1 of this Article but who fall within Article 10 of this Agreement, as well as their family members and survivors.
4.  The persons referred to in paragraph 3 shall be covered for as long as they continue to have a right to reside in the host State under Article 13 of this Agreement, or a right to work in their State of work under Article 24 or 25 of this Agreement.
5.  Where this Article refers to family members and survivors, those persons shall be covered by this Title only to the extent that they derive rights and obligations in that capacity under Regulation (EC) No 883/2004.

5. So the position to check is whether they were subject to legislation of another MS for co-ordination rules as at 31/12/2020.

Position if only covered by Protocol?

6. If you are stuck with the Protocol (as on the facts stated you appear to be) then Article SSC1 of that defines “Long term care benefits” – that is drafted to cover DLA:

(r) “long-term care benefit” means a benefit in kind or in cash the purpose of which is to address the care needs of a person who, on account of impairment, requires considerable assistance, including but not limited to assistance from another person or persons to carry out essential activities of daily living for an extended period of time in order to support their personal autonomy; this includes benefits granted for the same purpose to a person providing such assistance;

7. Long-term care benefits which are listed in the annex (which include DLA) are then expressly said not to be covered by the Protocol at Article SSC.3(4)(d):

4. This Protocol does not apply to:

(d) long-term care benefits which are listed in Part 2 of Annex SSC-1;

8. That stops a person being able to export DLA under any more favourable rules than exist in domestic legislation if they covered only by the Protocol.

9. However, the Protocol does apply to cESA- but whether that is exportable depends whether it is classified as a sickness benefit (which can be exported- article SSC.19) or an invalidity benefit (which can’t). My understanding is the cESA counts as an invalidity benefit after the assessment phase has ended- so that would not be exportable either.

10. As to the DWP advice- I do not think that they can rely on that to force DWP to pay them now that they have acted in reliance on it to their detriment (a legitimate expectation cannot be used to generate an entitlement contrary to statute)- although they might want to make a complaint.