European Regulations and theNorthern Ireland Experience   The work of the Belfast Social   Security Commissioners         ...
Who are we?  Officeof the Social Security   Commissioners Bedford House Belfast  Chief Commissioner Mullan  AN Other Co...
Belfast Commissioners  Administered   by the NI Courts and   Tribunals Service an agency of the Dept   of Justice at Stor...
What do the Commissioners do?    Commissioners hear appeals on points of Social Security law.     The Appeals Service han...
Belfast Commissioners  They  seek to give guidance on law and   practice.  300 cases 2010-11 . Perhaps 3-4 a year with  ...
Resources  Further          details: try NICTS web site     www.courtsni.gov.uk/en-GB/Tribunals/OSSC/Pages/OSSC.aspx  De...
The Range of Benefits  Social Security is devolved issue but retains   the “Parity Principle” with GB  Unemployment bene...
Range of benefits  State pension credit  Housing benefit  Child benefit  Child Tax credit  Pensions  New Plan for Un...
The standard EU issues arise.  What   is “Worker”  Can a benefit be exported  Frontier Workers rights  Issues of A8, A...
Some Cases  Past NI cases include; McMenamin ECJ  C119-91 (Overlapping benefits? A  frontier worker claiming NI Child Ben...
Two recent examples  AB v DSD (TC) [2010]NIComm 66. AB works in NI. She, her husband [a  soldier in the Defence Force] an...
AB case The bad news…  Art10 regulation 574/72 and overlapping   benefits per Dodl C-543/03 and GB case   R(F) 1/95 “Arti...
AB case conclusion  Art      10 (1) (b)  As    Mr B was working in R.o.I Art 10 (1) (b) was     in play    “under Artic...
Recent cases  JM  v DSD (CB) [2010]NIComm 13.  JM and husband worked in UK then   posted to Greece for 4+ years where   ...
Art 73 1408/71  An  employed or self-employed person   subject to the legislation of a Member   State shall be entitled, ...
The Bad News  They had been subject to the legislation  of Greece not UK, paying Tax and  equivalent of national insuranc...
In the pipeline    JF is American married to an EU national neither of     whom have exercised EU treaty rights on free  ...
Questions  Niall McSperrin  Legal Officer  Tribunals Hearing Centre  3rd Floor Bedford House  Bedford Street  Belfas...
Upcoming SlideShare
Loading in …5
×

2011 - European Regulations and the Northern Ireland Experience

259 views

Published on

0 Comments
0 Likes
Statistics
Notes
  • Be the first to comment

  • Be the first to like this

No Downloads
Views
Total views
259
On SlideShare
0
From Embeds
0
Number of Embeds
3
Actions
Shares
0
Downloads
1
Comments
0
Likes
0
Embeds 0
No embeds

No notes for slide

2011 - European Regulations and the Northern Ireland Experience

  1. 1. European Regulations and theNorthern Ireland Experience The work of the Belfast Social Security Commissioners Niall McSperrin trESS seminar Dublin 15 Sept 2011 1
  2. 2. Who are we?  Officeof the Social Security Commissioners Bedford House Belfast  Chief Commissioner Mullan  AN Other Commissioner (awaiting appointment)  6 Deputy Commissioners (from GB)  1 Legal Officer: Niall McSperrin Niall McSperrin trESS seminar Dublin 15 Sept 2011 2
  3. 3. Belfast Commissioners  Administered by the NI Courts and Tribunals Service an agency of the Dept of Justice at Stormont  Commissioners are integrated into the Judiciary at a level akin to the County Court with access to full Judicial internet and library resources Niall McSperrin trESS seminar Dublin 15 Sept 2011 3
  4. 4. What do the Commissioners do?  Commissioners hear appeals on points of Social Security law. The Appeals Service handle the initial factual appeals.  Lady Justice Hale (as she then was) in Cooke v SoS for Social Security [2001] EWCA Civ 734 described it thus:  “…this is a highly specialized area of law which many lawyers - indeed, I would suspect most lawyers - rarely encounter in practice…. there is an independent two-tier appellate structure… After the initial decision there is a fresh hearing before a specialist tribunal which is chaired by a lawyer and has an appropriate balance of experience and expertise amongst its members. After that there is an appeal on a point of law to a highly expert and specialized legally qualified body, the Social Security Commissioners Niall McSperrin trESS seminar Dublin 15 Sept 2011 4
  5. 5. Belfast Commissioners  They seek to give guidance on law and practice.  300 cases 2010-11 . Perhaps 3-4 a year with EU element [only one so far on 2004/38]  Also deal with Child Support Appeals, War Pensions Appeals, and certain UK wide appeals as Upper Tribunal Judges, including appeals under Freedom of Information Act. Niall McSperrin trESS seminar Dublin 15 Sept 2011 5
  6. 6. Resources  Further details: try NICTS web site www.courtsni.gov.uk/en-GB/Tribunals/OSSC/Pages/OSSC.aspx  Dept for Social Development website for case law and legislation  www.dsdni.gov.uk/index/law_and_legislation.htm  Bailii : www.bailii.org/nie/cases/NISSCSC/  The Upper Tribunal (Administrative Appeals Chamber)  www.justice.gov.uk/guidance/courts-and-tribunals/tribunals/aa/index.htm Niall McSperrin trESS seminar Dublin 15 Sept 2011 6
  7. 7. The Range of Benefits  Social Security is devolved issue but retains the “Parity Principle” with GB  Unemployment benefits; Jobseekers Allowance, income support  Sickness benefits; Incapacity benefit being phased out Employment Support Allowance taking over  Disability Living Allowance; being phased out for Personal Independence Payments  Social Fund (Funeral Grant) Niall McSperrin trESS seminar Dublin 15 Sept 2011 7
  8. 8. Range of benefits  State pension credit  Housing benefit  Child benefit  Child Tax credit  Pensions  New Plan for Universal Credit 2013.  The Holy Grail of Social Security: Will simplify the benefit system and improve work incentives. Niall McSperrin trESS seminar Dublin 15 Sept 2011 8
  9. 9. The standard EU issues arise.  What is “Worker”  Can a benefit be exported  Frontier Workers rights  Issues of A8, A2 nationals  Discrimination protection and qualification for benefits due to the “right to reside test”  Overlapping benefits Niall McSperrin trESS seminar Dublin 15 Sept 2011 9
  10. 10. Some Cases  Past NI cases include; McMenamin ECJ C119-91 (Overlapping benefits? A frontier worker claiming NI Child Benefit) and  Zalewska[2008] UKHL 67 (was the A8 registration scheme proportionate) Niall McSperrin trESS seminar Dublin 15 Sept 2011 10
  11. 11. Two recent examples  AB v DSD (TC) [2010]NIComm 66. AB works in NI. She, her husband [a soldier in the Defence Force] and two children live in R.o.I. She sought CTC but fell foul of S3(3) Tax Credits Act “must be in UK” However CTC is a “Family benefit” for purposes of 1408/71 and argued that entitlement followed per Art 73 Niall McSperrin trESS seminar Dublin 15 Sept 2011 11
  12. 12. AB case The bad news…  Art10 regulation 574/72 and overlapping benefits per Dodl C-543/03 and GB case R(F) 1/95 “Article 10(1)(a) therefore contains the general rule that entitlement to family benefits acquired simply by virtue of residence gives way to entitlement acquired by virtue of employment. If neither the claimant nor his wife were working in Ireland, Irish children’s allowances would be suspended and the UK child benefit would be paid in full . Niall McSperrin trESS seminar Dublin 15 Sept 2011 12
  13. 13. AB case conclusion  Art 10 (1) (b)  As Mr B was working in R.o.I Art 10 (1) (b) was in play  “under Article 10(1)(b)(i), UK child benefit is suspended up to the sum of Irish children’s allowances….”  At the time Irish allowances were more generous and no extra UK payments made. Niall McSperrin trESS seminar Dublin 15 Sept 2011 13
  14. 14. Recent cases  JM v DSD (CB) [2010]NIComm 13.  JM and husband worked in UK then posted to Greece for 4+ years where twins were born on 1.2.06. They returned to UK 10.5.06 but were refused backdated payment of Child Benefit  The Good News: Art 73 1408/71applies if can be said to be subject to legislation of UK, can get UK benefits Niall McSperrin trESS seminar Dublin 15 Sept 2011 14
  15. 15. Art 73 1408/71  An employed or self-employed person subject to the legislation of a Member State shall be entitled, in respect of the members of his family who are residing in another Member State, to the family benefits provided for by the legislation of the former State, as if they were residing in that State, subject to the provisions of Annex VI. Niall McSperrin trESS seminar Dublin 15 Sept 2011 15
  16. 16. The Bad News  They had been subject to the legislation of Greece not UK, paying Tax and equivalent of national insurance locally therefore could not be helped by Art 73 1408/71 Niall McSperrin trESS seminar Dublin 15 Sept 2011 16
  17. 17. In the pipeline  JF is American married to an EU national neither of whom have exercised EU treaty rights on free movement. Does she remain “subject to immigration control” and ineligible for DLA or can she claim benefit as a family member of a worker?  Zambrano decision of CJEU, C-34/09 involved dependent EU children who had never moved and a non EU parent.  Can a wider principle be extracted that citizens can rely on rights as EU citizens where they have never moved to another Member state  What if JF had flown first to Dublin rather than Belfast? Niall McSperrin trESS seminar Dublin 15 Sept 2011 17
  18. 18. Questions  Niall McSperrin  Legal Officer  Tribunals Hearing Centre  3rd Floor Bedford House  Bedford Street  Belfast BT2 7FD Niall McSperrin trESS seminar Dublin 15 Sept 2011 18

×