Saturday, November 7, 2009

Update regarding exportable benefits from the UK/EU Disability & Carers Group.

To go to the start of the PensionersDebout blog click here

This 'posting' is now an archive.  It concerns the case of John Hamilton who is disabled.  Following the pressure brought to Government by his wife and various other groups including the Spanish Association of expatriates and backed by EU law the situation has changed and John Hamilton now has his benefit because of his disability.  So there is some progress.

Although some progress appears to have been made in the case of exportable benefits, insomuch that a handful of claimants have received appeal submissions from the DWP, hundreds more are still being subjected to delays and procrastination from the Exportability Team, Blackpool. Those claimants pursuing their allowances via the appeal process, having received rejection letters for reinstatement, are still being confronted with the “complex issues” argument as to why their cases have not been sent to the Tribunals Service (TS). A quoted 350 cases (DWP statistic) are currently waiting to be heard at appeal. The majority of these claimants have had their claim refused on the basis of the “26/52 week rule” (a.k.a. the modified past presence test) and “failure to appeal” at the original time of withdrawal of allowance.

In mid-August, claimant and campaigner J.H. received a 275-page submission for his appeal from the Exportability Team, advising him that his appeal was to be heard at the TS Liverpool. Given that J.H. had requested his hearing to be handled by TS Sutton, this proved a further attempt by the DWP to obstruct his right to a “fair and reasonable” hearing, as J.H. is not physically able to travel to Liverpool. After much correspondence and telephone calls, J.H.’s case was passed to Sutton and a date for a First Tier hearing given for 10 November 2009. At the same time, Age Concern England (ACE) offered J.H. legal representation, to be provided by the Child Poverty Action Group (CPAG) who have had success in previous exportable benefit appeals.

In mid-September, J.H. received a letter from European Commissioner for Social Affairs, Jackie Morin, in response to correspondence sent some time earlier in respect to his rejected claim. The letter advised J.H. of the EC’s intention to initiate infringement proceedings against HMG for use of the “26/52 week rule”, as it is “contrary to Community law” (reference 2009/2193). Several other claimants were also advised of the infringement proceedings by the EC and, accordingly, passed this information to the DWP – who denied any knowledge of it and continued to refuse claims on this basis. In fact, recent correspondence received by Group members from Terry Moran, CEO of the PDCS, and his minions at the Exportability Team, decrees that:

“We have been notified of the decision of the European Commission to initiate infringement proceedings against the UK under Article 226 EC in relation to the "past presence" requirement.

We have carefully considered the application of the "past presence" requirement and believe it to be compatible with European Community law.”

However, following the issuance of the EC’s infringement proceedings, J.H.’s November appeal date was cancelled, as “the DWP’s presenting officer was no longer available”. Two further dates of end-November and mid-December were also rejected as unsuitable by the DWP.

During this period, another member of the Group, P.S. residing in Greece, received his appeal submission from the DWP. The main body of P.S.’s submission was made up of 22 pages of a duplication of J.H.’s submission, along with a request to the TS by the DWP that these two cases – plus one for someone residing in Spain – be linked, under the banner of “the exportability reconsideration cases”, to be heard as three lead cases. According to the request this will allow the DWP to “submit further and more submissions on the common legal issues”. Additionally, in respect to the quoted 350 similar cases, the DWP maintains that “staying other cases which raise the same legal issues will mean that once the lead cases are finally determined, the stayed cases can be almost entirely resolved without the need for further litigation”.

It should be noted that J.H. has not been told of this request by the DWP, instead only finding out due to contact with P.S. – through the UK/EU Disability & Carers Group – and via CPAG, who will be representing all three test case claimants (linked or not). To date, the cases are with a judge at TS Sutton who will be making a decision on the matter of linking by end-January 2010.