Tuesday, July 26, 2011

Sickness Benefit ruling July 2011



The information below has been received from David Burrage (Legal advisor and co-founder of  the Spanish Association of British Expatriates).
To read more you need to sign up to their site.    http://www.ukgovabusesexpats.co.uk/

Extracts are copied below - please read.   The consequence of this ECJ ruling is that - as long as the UK is the 'competent State for your social security' then if perchance you fulfil the circumstances to be awarded a sickness benefit in the UK if you lived there, then you should receive it anywhere in the EU - even if those circumstances have come upon you recently.  Thus if your spouse becomes incapacitated and would have an Attendance Allowance were you to reside in the UK, then your spouse is entitled to receive it in France, Spain etc.  If your net income is below £100 per week then if you are in the position of being a carer, you may well claim a Carer's Allowance.
 These are the first two paragraphs of this communication
The European Court of justice (ECJ), in Lucy Stewart, case C-503/09, has finally delivered an 18 page land mark ruling with regard to the UK’s imposition of their presence in, or ‘past’ presence in the UK of 26 weeks in the previous 52 weeks test (PPT), at the date of first claim to certain types of sickness related benefits, which also embraces the benefits of disability living allowance ‘care’ component, attendance allowance and carers allowance.


The effect of this ruling, delivered on 21st July 2011, is that, such a past presence test can only be imposed in the absence of some other proper linking to the UK’s social security system, including past contributions, substantial previous periods of residence in the UK, receipt of some other benefit, such as the benefit awarded to the appellant in the main proceedings, when as a result a person is in receipt of N.I.contribution credits, or where they have an established linking through the receipt of a State ‘old age’ pension. Such linking can also be established by proxy, where a family member is dependent on another where that other person has an established linking, as was the situation in the above proceedings This test cannot be applied in replacement of such a linking, but only in substation in the absence thereof.  
 another extract ---------------------------
The appellant in the main proceedings is a Down’s syndrome victim (Lucy Stewart), she has never been able to work and is hardly likely ever to be able to work. Upon their retirement and when they were in receipt of their UK State ‘old age’ pensions her parents moved to Spain where they currently reside. When the appellant attained the age of 16 years her mother applied for youth incapacity benefit on her daughter’s behalf. The DWP disallowed the application on the basis that the appellant did not meet their 26/52 week past presence test at the date of her claim. In the meantime the appellant had been entitled to and awarded disability living allowance (DLA), retrospectively, to the date of its inception of June 1992.

For completeness, youth incapacity benefit is awarded to persons between the age of 16 years and 25 years, where a person is physically or mentally handicapped and thereby unable to work. It is awarded for a maximum period of 354 days and where the circumstances warrant, it is then replaced by normal incapacity benefit (I.B.).These benefits are classed as disability/sickness benefits for the purposes of Community law and as such are exportable to elsewhere within the EEA or Switzerland. Further, where a person is in receipt of such a benefit they will also be entitled to be credited with N.I. contributions.