Disability Living Allowance

David Burrage [Legal advisor to the Spanish Association of British Expatriates] has received correspondence from the European Commission.
You can link to David's comments and also the letter from the Commission.
It can be difficult to follow the discussion but essentially it is this.
The UK Government had posed a 26 week rule which stated that DLA recipients should have spent 26 weeks out of the last 52 within the UK to reclaim this benefit which was previously illegally removed from the recipient, perhaps some years before!  The Commission make it clear that this 26/52 rule is itself illegal.
There is also debate on the 'mobility fraction' of the DLA, on which again the UK Government is wriggling.
Links (click) below..
David Burrage's note
The EU Commission's letter -the third page of this puts the situation lucidly.

It is important to understand that there are pensioners who wish to retire to Continental Europe, perhaps to join their children who have previously moved there.  They may well be invalid and have received and need this support, but have found it difficult or impossible to have it continued once they have moved.  This infringes the concept of 'freedom of movement' integral to the condition of Europe.

Monthly Comment March 2010 One Accuses - Lack of Fairness?

LINKS- 
These are legal arguments and papers exposing the Dishonourable Position of the United Kingdom and its infringement of EU Community Law with respect to non-payment of benefits to disadvantaged British expatriates in Europe.. Prepared by David Burrage - legal advisor to the Spanish Expatriate Association.

1. An abridged version of the major document . (3 pages html file)- largely prepared by Brian Cave.
2. A full version of the document (40 pages pdf file).
3. Letter from the EU Commission to The Spanish Expatriate Association.  This letter refers to two instances of case law before the European Court of Justice. The judgements on these two cases are linked below.
4. Case Law 'Duchon'.  
5. Case Law 'Larsy'. 
6. The EU Regulations covering the point at law of the exportability of benefits.

One accuses the United Kingdom Government of ............

Lack of Fairness.

Dishonour towards its Elderly People

Lack of Statesmanship and Leadership.
The elderly citizens of Britain move to France, or Spain, or wherever in Europe for good reasons.. to join their families, for their health, to explore new environments, or to enjoy a way of life not to be found in Britain.  The EU offers opportunities in living not known to earlier generations.  Their income comes entirely from Britain.  They have all their working lives paid into a social system of support (as Clement Attlee would have said from 'cradle to grave').  They have given service to the Nation in peace and war.  Many have added to the wealth of the Nation.  Now, in their years of retirement, instead of retiring to Bexhill or Morecambe, they choose to take advantage of the possibility, achieved and signed under treaty obligations by the British Government to live in the wider Europe - to be free to move and live as free citizens within this great spreading of the peoples of the Continent.
The British Government treats this diaspora of British Citizens as second class compared to those who remain in the British Isles.  We who have been proud to be British and still wish to to be proud to be British are treated unfairly by the Government of our own Nation.
A proportion of  we elderly citizens became disabled before moving into the wider Europe.  Some, few they may be, left to join their families who have already moved, but suffer from illnesses requiring care. They received financial support to help in that care.  Some  have since been deprived of this support by the British Government, who illegally have ceased payment.  The British Government are dishonourable in their position towards these people. The legal exposition of the dishonourable nature of the British Government is fully developed in the links indicated above.
The British Government signed to treaties to enable people to move freely without suffering financial hardship.  It does not honour its word.
The British Nation, once a leader amongst Nations, has in the context of Europe, shown itself to be small minded, narrow in thought and deed.  It does not display the Statesmanlike leadership which we, who are in our seventieth or eightieth decades would expect.  It is weak and shallow and leaderless.

Circulated Message from Roger Gale M.P. on DLA payments

This message from Roger Gale MP has been sent to all MPs with constituents concerned about the non payment of Disability Living Allowance.

Exportable Benefits - update
As a colleague with a constituent interest in the issue of exportable benefits I felt that I should circulate the present position.

Infringement proceedings against the UK Government for breach of the ECJ ruling were issued at the beginning of October.

The Commission does not accept the "26/52" ruling in relation to qualification.

I still await the Prime Minister’s promised written answer to my oral PQ and subsequent letter.

The government has declined, on grounds of confidentiality, to publish its response to the EU.

Some 2000 (we believe) former elderly and disabled former UK residents and taxpayers are awaiting payment of the benefits due to them.

It would appear that appeal hearings, long-delayed, have now been put on hold pending (1) a resolution of the infringement proceedings and (2) the subsequent hearing of a basket of test cases.

All of which is not very satisfactory!

Yours ever

Roger Gale, MP
North Thanet

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.