Credits for Law by qov41983

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									Review 2009/10
  Pamela Fitzpatrick




           www.cpag.org.uk
CPAG
•   Provides advice and supported casework on all aspects of
    social security and tax credits law
•   We bring test cases on issues of wider importance than to
    the individual client to get a better interpretation of the law
•   We run training courses in all areas of social security and
    tax credits and publish various benefits guides including
    the Migration and Social Security Handbook
•   Over the past year we estimate probably between 60 and
    70% of all advice queries to CPAG relate to issues of EU
    law
•   The demand for our training on EU law has also
    increased significantly
    Main issues 2009/10:
•   UK approach to interpreting EU law
•   Exporting AA, CA, and DLA
•   UK Right to reside test
•   Lack of advice provision on co-ordination
    rules
•   Delays in accessing rights
•   Uncertainty about rights under 883/04
Interpretation of EU law in UK
•   Perception by advisers and claimants that there is a
    resistance in the UK to accepting the rights that are
    available to individuals under EU law
•   Courts and tribunals will often take a literal approach
    which leads to difficulties
•   Appears to be some resistance to accepting EU law is
    supreme
•   In one case it was stated for example that social security
    was not a matter covered by the EC Treaty
•   Recent judgements such as Harrow and Ibrahim treated
    as though this is a new right not one that has existed
    since the introduction of 1612/68
•    Claimants and adviser therefore left in some confusion
Exporting AA, CA, and DLA

•   Main problems have been:


•   The lack of clarity following the judgement
•   Delay in implementing the judgment
•   Delays in decision making
•   Process of appeals:
•   - taking place in the UK (cost and inconvenience)
•   - formality of first tier appeal tribunal hearings
Clarity: Summary of events

•   Judgment given by ECJ 18th October 2007
•   In June 2008 DWP issued guidance on impact of
    judgment in Memo DMG 14/08
•   Revised guidance issued in April 2009 in Memo
    DMG 17/09 restricts export from people already
    living abroad
•   Concession given by UK Government relating to
    people already living abroad February 2010
Problem areas
•   What date did AA, CA and DLA care become a
    sickness benefit:


•   The UK position is that the benefits can only be
    treated as sickness benefits in the UK from
    October 2007 the date of the judgement in C-
    299/05
•   But our view is that there is no warrant for the
    selection of any later date than the date of the
    decision in Jauch C-215/99, ie 8th March 2001 –
    see also paragraph 11 of CDLA/2078/2005
Problem areas
•   When is a person no longer a person subject to
    the legislation of the UK;
•   Claimants having to meet the 26 week past
    presence test in order to be able to export
    sickness benefits;
•   People who were in receipt of a disability benefit
    prior to going to live in another EEA state - UK
    conceded on this point shortly before the lead
    cases came to the First Tier Tribunal
UK statement Feb 2010
•   'In October 2007 the European Court of Justice
    decided that ……'disability benefits' should be
    classified as sickness benefits under Regulation
    EC 1408/71. Consequently, the benefits are
    exportable in certain circumstances. Before this
    judgment disability benefits were not exportable
    and as a result people who had been receiving
    these benefits lost entitlement when they moved
    abroad.
Government position continued…

The Government accepted that the disability
benefits ……..are exportable to customers living
in the European economic area (EEA) and
Switzerland provided certain conditions are met.
This includes a requirement that customers
making a new claim have been in the UK for 26
out of the past 52 weeks.
UK concession
•   After careful consideration we have decided to
    take a different approach on cases where people
    lost entitlement to a disability benefit when they
    moved to another EEA state or Switzerland
    before 18 October 2007 (the date of the judgment
    in case C-299/05, Commission v. Parliament) but
    no earlier than 8 March 2001 (the date of the
    judgment in case C-215/99, Jauch v.
    Pensionsversicherungsanstalt der Arbeiter).
UK concession
•   We accept that these people will have been in the
    UK for 26 out of the previous 52 weeks when they
    left the UK. We will therefore no longer require
    that they should satisfy this condition at the date
    they seek reinstatement, providing they continued
    to meet the other relevant domestic and EU law
    eligibility requirements throughout the period their
    claim was disallowed. Payment will be
    considered from 18 October 2007.'
UK anti test case rules

•   The limit to payment from18 October 2007
    relates to the UK anti test case rules –
Right to Reside and co-ordination
rules
•   Right to reside test for IS, income based JSA,
    PC, HB, CTB, HIPG, CB and CTC continues to
    be a major problem for UK claimants excluding
    large numbers of claimants from entitlement to
    any UK benefits
•   Co-ordination rules failing
•   Pregnant or sick EEA workers often left with no
    work or benefit reliance on red cross for food and
    have a disproportionately high impact on women;
Right to Reside
•   Lack of awareness by claimants of rights to
    aggregated benefits such as maternity/sickness
    benefits and DWP still do not appear to be
    proactive in notifying claimants of these rights
•   Special non contributory benefits such as IS not
    payable unless the person has right to reside or
    permanent residence. No acceptance in the UK
    that a person covered by 1408/71 can claim IS
    under 1408/71 and therefore be self supporting to
    gain right to reside.
Problems
•   Where clients successfully claim benefits such as
    maternity benefits they should be considered self
    supporting and consequently have a right to
    reside as a self supporting person and therefore
    be able to claim benefits such as housing
    benefit/council tax benefits and family benefits
•   The response to this by DWP and Revenue is not
    consistent. People are told that reliance on a
    social security benefit does not make them self
    sufficient – we think there is no authority for this.
Self sufficient
•   Residence Directive and Treaty require that a
    person:


•   has sufficient resources to avoid becoming a
    burden on the social assistance scheme; and


•   Has comprehensive sickness insurance
Self sufficiency continued
•   Directive says you measure self sufficiency by
    looking at the threshold by which a person
    becomes entitled to social assistance
•   Applicable amount in UK?
•   Must also have sickness insurance
•   Covered by co-ordination rules?
What might help
•   Guidance from Commission on application of
    residence directive does help
•   However – the problems facing pregnant women
    could be dealt with very quickly by EU law making
    clear that a person’s residence is not lost during
    maternity leave of a fixed period whether or not in
    work – We ask the Commission to consider this
    as a matter of urgency
•   It would also help to make clear that a person has
    comprehensive sickness insurance if covered by
    the co-ordination rules (EHIC)
Lack of advice
•   Complexity of EU law is reflected in CPAG’s
    helpline:
•   We estimate that approximately 70% of all
    queries to CPAG now on the Right to Reside Test
•    We have also found that claimants and advisers
    have struggled to get access to advice on
    exporting DLA etc
•   If experienced advisers have difficulty where
    does that leave the public
•   Need for this lack of advice must be addressed if
    co-ordination rights are to be really available to all
Delays
•   Claimants are finding they are left without money
    they are rightly entitled to under the co-ordinaton
    rules because of delays
•   Delays arise because decision makers and other
    front line staff do not pick up on benefit
    entitlement under the co-ordination rules
•   Delays in decisions on RTR and exporting DLA
•   Delays in getting cases to tribunal in some areas
Regulation 883/04
•   Now have the new co-ordination rules which are
    intended to simplify the system for those
    exercising free movement.
•   Not yet seen the new system in operation and it is
    clear that many people remain unaware of any
    change
•   CPAG view is that the new Regulations may offer
    some solutions to the problems we have
    identified over the last year – but only if the DWP
    and Revenue interpret the new rules in the same
    way that CPAG does
Possible improvements for claimants
•   Access to special non contributory benefits and
    residence more clearly defined. Makes clear that
    residence means habitual residence
•   Exporting – rules allow all but special non
    contributory benefits to be exported
•   Member states must make interim payments if
    there is disagreement about which state a person
    is subject to the legislation of; this should avoid
    the problems of people covered by the co-
    ordination rules being left without any benefit
Delays
•   Preamble 7 Reg 987/09
•   Persons covered should receive a timely
    response from the competent institution to their
    requests.
•   The response should be provided within the
    national time limits for responses.
•   It is desirable for member states without such
    time limits to consider adopting them – no real
    time limits for decisions and may be something
    for the DWP/Revenue to consider
Late claims
•   Reg 987/09
•   Preamble 9 – The complexity of the co-ordination
    rules means that Member States should make a
    particular effort to support insured persons who
    have not complied with time limits for claims or
    providing information
Temporary protection
•   Reg 987/09 preamble 10 and Article 6 Reg
    987/09


•   To ensure a person is protected during a period
    of consideration as to who is the competent state
    provision should be made for temporary
    membership of a social security scheme.
Residence
•   Preamble 11
•   Member states should co-operate in determining
    the state of residence and if a dispute reference
    should be made to all the relevant criteria
    including the criteria set out in Reg 987/09
Determining Residence
•   Where a difference of views institutions must
    establish the centre of interests of the person:
•   a) the duration and continuity of presence on
    the territory of the Member State concerned;
Residence continued…
•   b) the person’s situation; including:
•   i) the nature and specific characteristics of any
    activity pursued, in particular the place where
    such activity is habitually pursued, the stability of
    the activity and the duration of any work contract;
•   ii) his family status and family ties;
•   iii) the exercise of any non-remunerated activity;
•   iv) for students the source of their income;
Residence
•   v) his/her housing situation and how permanent
    it is
•   vi) the member state in which the person is
    deemed to reside for tax


•   If there is still no agreement MS the intention of
    the person as it appears from the facts and
    circumstances of the case and the reasons for
    the move shall be considered as decisive for
    establishing the persons residence
Absence for childcare
•   Preamble 14
•   Specific rules required in order to define
    applicable legislation for taking account of
    periods during which an insured person has
    devoted time to bringing up children in the
    various member states.
•   We think this should assist in particular women
    who are temporarily away from work due to
    childcare
Some CPAG cases 2009/10
•   CDLA/2864/2007, joined with CDLA/2002/2006,
    CDLA/2106/2006, CDLA/496/2006 – Exporting
    DLA/AA/CA within the EU following C-299/05
•   These cases were concerned with how the
    decision in C-299/05 is to be applied in UK law
    and in particular at the status of the mobility
    component of DLA.
•   CDLA/2864/2007 was decided in the claimant’s
    favour on the facts. CDLA/2002/2006,
    CDLA/2106/2006 and CDLA/496/2006 have been
    referred to the ECJ. CPAG is not involved in
    those cases.
CPAG test cases
•   CIS/647/2009, CIS/2357/2009 joined with CIS/1465/2009
    – self employed workers and “Baumbast” rights, A8
    nationals and “Baumbast” rights.
•   CIS/2357/2009 - whether a previously self employed carer
    of children in education has a right to reside in the UK
    following the ECJ’s decisions in Ibrahim C-310/08 and
    Teixeira C-480/08.
•   CIS/647/2009 - whether an A8 national who has worked
    in the UK for less than 12 months has a right to reside in
    the UK as the primary carer of a child in education
    following the decisions in Ibrahim and Teixeira.
CPAG cases
•   Secretary of State for Work and Pensions v
    Lassal [2009] EWCA Civ 157
•   Article 16 Directive 2004/38/EC – Whether
    residence prior to 2006 can be taken into account
    to establish permanent right to reside
•   The Advocate General’s opinion was given on
    11th May 2010. The AG has held that residence
    in accordance with EU provisions prior to
    Directive 2004/38/EC does count towards the
    permanent right of residence under Article 16
    Directive 2004/38/EC. We are now waiting for the
    decision of the court.
CPAG cases
•   CIS/339/2009
•   The issue in this case is whether a woman who
    becomes temporarily unable to work due to
    pregnancy and childbirth and has no continuing
    employment rights has a right of residence in the
    UK. The case was heard on 19th April 2010.
•   Appeal did not succeed at UT.
CPAG cases
•   CIS/1224/2007–The issues in this case are:
•   Whether Article 10a EC Regulation 1408/71
    means that an EU national who is habitually
    resident in the UK has a right to receive special
    non-contributory benefits
•   Whether an EU national who is unable to work
    due to his/her partner’s illness retains a right of
    residence
•   This case has been stayed pending the outcome
    of the Court of Appeal’s decision in Patmalniece,
    the appeal against CPC/1072/2006.
CPAG cases
•   Pedro v Secretary of State for Work and
    Pensions
•   Court of Appeal held that it was not necessary for
    a dependent family member to have to show
    dependence in the member state of origin.
•   However guidance from the European
    Commission seems to contradict the judgement
DLA export lead cases
•   CPAG has represented in a number of appeals
    before the First Tier Tribunal on the export of
    benefits.
•   These cases (although lead cases) have largely
    been decided on the facts
Looking forward:
•   We are cautiously optimistic for the coming year:
•   ECJ starting to make caselaw which assists and
    clarifies issues in relation to the UK right to reside
    test;
•   Commission taking infringement proceedings on
    many areas of RTR test that CPAG has long
    argued are breaches of EU law;
•   New Co-ordination rules offer some hope for
    delays and temporary cover where a person left
    without benefit
But:

•   EU law is failing pregnant women both in terms of
    employment protection and financial support.
•   Many migrant women are now working up to the
    point of giving birth and returning to work within
    days of the birth. They do so because they have
    no money otherwise and therefore no choice.
•   The health of both mother and baby is at risk
    because they are forced to take the child to work
    or to leave the child with someone.
2010/11
•   We hope that at next year’s Tress seminar we will
    be able to reflect on some positive measures that
    have been put in place to protect pregnant
    migrant women.
•   We need the Commission and the UK
    government to urgently address this issue.
www.cpag.org.uk

								
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