DLA care, AA and CA. PPT test and ‘mobility’ element of DLA - Up-date 20/05/2011
As we had advised you all from the very outset when the DWP imposed their modified spurious past presence test rule (PPT) in the UK of 26 weeks in the previous 52 weeks at the date of claim for any of those relevant benefits, which was 16 months after that landmark ruling by the Court of Justice (ECJ) on 18 October 2007, case C-299/2005 that, this rule did not coordinate with Community law.
Those of you who were/are affected in this matter of those sickness benefits, will be aware of the fact that our DWP went into denial after that court ruling and refused to implement the effects of the ruling until they were forced into doing so, even then only to a limited extent, following questions in our Parliament, and where in September 2009, almost 2 years later, when the Commission finally opened the infringement legal proceedings.
The Prime Minister during this entire period was the man who stood before us all during that live debate prior to the general election in 2010 and asked us all to trust him was Gordon Brown! The Secretary of State for Works and pensions was Yvette Cooper, who now sits on the opposite benches in that place and refused to respond to our letter demanding she act in accordance with the Court’s ruling. The junior minister for the disabled, who resisted attempts to secure our government’s compliance with the Court’s ruling, was Jonathan Shaw and we were pleased to see that he failed to gain re-election in 2010. We name and shame each of them as heartless and scurrilous individuals.
We can now tell you all that on 17 March 2011, albeit only more recently published, the Advocate General, Cruz Villalón, delivered his opinion in a case referred by the Upper Tribunal (UK) to the ECJ for a preliminary ruling in Lucy Stewart v. The Secretary of State for Work and Pensions. Case C-503/09, concerning the DWP’s refusal to award Lucy, a Down’s syndrome sufferer, ‘youth incapacity benefit’ on the basis that the appellant did not meet a past presence test rule in the UK of at least 26 weeks in the previous 52 weeks at the date of claim.
Lucy, now age 20 years, had no work related social security contribution record prior to her parents bringing her with them to Spain, and her longer term prognosis are such that she is hardly likely ever to be able to work. However, when moving to Spain with her loving parents she was at least in receipt of DLA.
Her claim was based on the fact that she was a dependent of her parents, who were, at the date of her claim, themselves in receipt of UK State ‘old age’ pensions. The Community rules in place at that time was Council Regulation EC 1408/71 and whilst we quote those regulations, since they are applicable to Lucy Stewart, albeit those regulations equally apply by analogy to the new ‘Basic Regulation 883/04, which entered into force on 1 May 20010.
The Court was requested to give their ruling on a number of issues in this case. However, without the need for us to go into the entire matter, suffice it for us to advise you that one of the questions the Court has been asked to address is that spurious past presence rule.
When giving his opinion the Advocate General has directed the Court of Justice to give effect to his opinion. We have set out his opinion in respect of that past presence rule where the Advocate General has, in effect, confirmed the adopted position of this Association, as well as the Commission and below we summarise that opinion.
(i) Any past presence requirement in the competent State can only be applied where a person has no previous linking with that State by way of any former social security contributions. This makes good sense. This includes all new/fresh claims, provided also that the claimant has not activated the social security system of another Member State following some economic activity in that state (paid employment or self employment). Therefore, all persons who had/have some past linking with the UK come within the provisions of Article 18 of the above regulations (as amended by 883/04).
(ii) Where a person claims dependence upon another on the basis that the other person is a worker within the meaning of those regulations, then the claimant will come within the provisions of Article 19(2) of those regulations, even though they have no previous social security contribution history themselves, since they may rely on such a history of the person upon whom they are dependent
(iii) The Court has also been asked to rule as to whether a person who is in receipt of a State ‘old age’ pension is to be regarded as a worker for the purposes of those regulations. The Advocate General has stipulated that, a State ‘old age’ pensioner is also to be classed as a worker for the purposes of Community law. Therefore where they receive the pension from the UK, then they will have a social security contribution linking.
What is does all this mean?
Put simply a person may make a first/fresh/new claim for any of the above benefits, subject to the same rules and derogations which are applied to claimants residing in the competent State (UK) and in respect of expats where they have not become economically active following their departure from the UK and where they have any past social security contribution history in the UK, then the UK is their competent State for the award of certain benefits, including DLA ‘care’, AA and CA or where they are a dependent family member of a person who has such a contribution history.
The only situation in which any past presence rule can be applied is where the claimant or the person upon whom the claimant is dependent has no previous history of social security contributions in the UK. That also makes good sense, but for all practical purposes it will hardly ever be applicable.
Meaning of dependence upon another:
Whilst this is not set out in finite terms in the regulations nevertheless, we can, not only seek guidance from the case law of the Court of Justice, namely in Lebon (case C-316/85), Chen (case C-1/05) and Jia (case C-2002/02) but also from the ruling by Judge Jacobs of the Upper Tribunal in case CIS/2100/2007 where, when considering the cases mentioned, Judge Jacobs ruled:
A person is only dependent who actually receives support from another.
There need be no right to that support and it is irrelevant that there are alternative sources of support available.
That support must be material, although not necessarily financial, and must provide for, or contribute towards, the basic necessities of life (shelter, food, clothing, heating, health care).
Whilst the Advocate General has given his direction to the Court, we must wait until the Court ratifies his opinion. This normally takes no more than up to 3 months following his opinion, although we have recently been advised by the Commission that we may have to wait until at least October 2011. In the meantime It is to be hoped that the DWP will give up their dishonest attempts to block claims to any of those benefits, although we will not be satisfied until we see heads roll and starting with the most senior in that failing government department.
We are continuing to liaise with the Commission with regard to reinstatement back to the date of withdrawal of any of those relevant benefits as well as those cases where the claimant had gone to judicial appeal prior to 18/10/2007 and at a time when they had no known grounds for appeal and where following the ruling by the ECJ of 18/10/2007 they have been refused to have their earlier disallowed appeals set aside and re-made on the basis they are now ‘out of time’. This also contravenes the settled case law of the Court of Justice.
All of you, who have suffered as the result of the UK’s misapplication of Community law should be aware that such misapplication is regarded as a serious breach of Community law, for which the case law of the ECJ obliges a Member State to award damages. – See Larsy (case C-118/00) and Duchon (case C-290/00), set out in an earlier posting with links to those cases.
You should also be aware that whilst the Tribunal Appeals Service is part of our Ministry of Justice and are regulated by the Tribunals, Courts and Enforcement Act 2007, judges of this Service can neither compel the enforcement of their rulings and neither can they award costs or damages. You should also be aware of the proposed pilot scheme to wed the appeals Service to the DWP, thereby, we say, removing all possible chance of an independent review of a citizen’s right to a judicial hearing.
In the meantime we have now investigated one such claim for DLA care, where we have uncovered substantial documentary evidence of an attempt to pervert the course of public justice, on the part of certain members of the DWP, including a ‘decision maker’ and we have asked the judge to send the papers to the Director of Public Prosecutions, advising him that if he fails in this obligation we will do so ourselves.
Meanwhile we have been advised by the Commission that their infringement remains current and on-going, save that they also await the ratification by the Court of the Advocate General’s Opinion. This means that unless our government fully complies with the ruling of the Court of Justice of 18/10/2007 then they will be brought before that Court
To read the Advocate General’s opinion click on here......
Mobility Element of DLA.
In December 2009 the Upper Chamber of the UK’s Appeals Tribunal Service referred three joined cases Bartlett, Ramos and Taylor v. The Secretary of State for Work and Pensions. Case C- 537/09 to the ECJ for a preliminary ruling, as to whether the UK’s ‘mobility’ component element of DLA was a special non-contributory social security benefit within the meaning of Article 4(2)(a) of Regulation EC 1408/71 (now replaced by Regulation 883/04), and therefore not exportable to elsewhere within the EEA or Switzerland or whether this element of DLA was, in effect a sickness benefit within the meaning of Article 4(1) of the former regulation and as such would be exportable.
The Court delivered its ruling on 5 May 2011, when the Court ruled that the UK’s mobility component element of DLA was a special non contributory benefit within the meaning of the above regulations and therefore this element of DLA is not exportable from the UK. We had also had taken that view, therefore we were not surprised as to the outcome, especially since this element of DLA had not been under challenge by the Commission on 18.10.2007