past presence test for DLA and PIPS

I am dealing with a Polish family who all have disabilities. They came to the UK in Feb this year and the father is now working full time.
Both mum and dads PIPS claims have been refused on the grounds that they had not been in the UK for 104 weeks out of the last three years. We are currently waiting for the DLA decision about the child.

Some recent CPAG training notes indicate that EU reg 883/04 ,(coordination rules) say that a PIPS clamant could count time spent in another EU state as counting towards the past presence rules. I have found the EU reg rather hard to decipher and I was wondering if anyone could confirm whether time spent in Poland would count towards the past presence test or not.
thanks

I’ve just asked basically the same question here: http://www.rightsnet.org.uk/forums/viewthread/6717/ (sorry for the duplication).

I’m not 100% but my understanding is that article 6 of Regulation 883/2004 means you can simply add up the residence in one Member State with that of the UK. Using this, you wouldn’t need a genuine and sufficient link. As far as I can see, this is separate to the provision made in the DLA and PIP Regs.

The ‘genuine and sufficient link’ bit in the Regs (see also reg 2A of the DLA Regs) seems to come from the ECJ Case C-503/09 Stewart. The Court gives guidance on how to demonstrate this link at paras 97-101. http://curia.europa.eu/juris/liste.jsf?language=en&num=C-503/09. If you’re using CPAG’s Handbook, I think this is also in there somewhere around chapter 70 where it deals with residence requirements for DLA.

I think you can use either article 6 or reg 2A DLA Regs/Reg 23 PIP Regs. Either way, the result is the same. But again, I’m not 100% so if anyone could confirm, I’d appreciate it, too.

Thanks
Matt

matthewjay - 10 July 2014 12:49 AM

I think you can use either article 6 or reg 2A DLA Regs/Reg 23 PIP Regs. Either way, the result is the same. But again, I’m not 100% so if anyone could confirm, I’d appreciate it, too.

Thanks
Matt

I agree with you, Matt. However, the PIP ADM gets a bit bizarre when talking about Art 6 of 883/2004:

‘Aggregation and the past presence test

Daily Living Component

C2137 Where the claimant is within the personal scope of the EU co-ordination regs and the UK is the competent state for the payment of cash sickness benefits, for the purposes of the Daily Living Component of PIP, periods of insurance for cash sickness benefits completed in another Member State qualify to be aggregated with residence in
the UK when considering whether the past presence test is met. Reg (EC) 883/04 Art 6

Mobility Component

C2138 As the Mobility Component is to be treated as an SNCB, it is only payable in the UK. However, for the purpose of satisfying the past presence test, periods of insurance for social security benefits arising from periods of employment, self-employment or residence in another EEA State qualify to be aggregated with residence in the UK when considering whether the past presence test is met.’

I’m at a loss to explain why they think that you can only aggregate ‘periods of insurance for cash sickness benefits/social security beneits (depending on the component) when Art 6 says this:

‘Article 6

Aggregation of periods

Unless otherwise provided for by this Regulation, the competent institution of a Member State whose legislation makes:
– the acquisition, retention, duration or recovery of the right to benefits,
– the coverage by legislation, or
– the access to or the exemption from compulsory, optional continued or voluntary insurance,
conditional upon the completion of periods of insurance, employment, self-employment or
residence shall, to the extent necessary, take into account periods of insurance, employment, self-employment or residence completed under the legislation of any other Member State as though they were periods completed under the legislation which it applies.’

Maybe one of the DWP spies rumoured to watch our every move on RN will post under a pseudonym to explain why…? I would ask how this goes at tribunal, but the walls have ears and I don’t want anyone to end up embroiled in a lengthy ECJ reference (unless they promise to win…)

Jon