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2010 - Review 2009/10

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2010 - Review 2009/10

  1. 1. Review 2009/10 Pamela Fitzpatrick
  2. 2. 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
  3. 3. 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
  4. 4. 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
  5. 5. 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
  6. 6. 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
  7. 7. 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
  8. 8. 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
  9. 9. 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.
  10. 10. 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.
  11. 11. 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).
  12. 12. 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.'
  13. 13. UK anti test case rules • The limit to payment from18 October 2007 relates to the UK anti test case rules –
  14. 14. 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;
  15. 15. 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.
  16. 16. 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.
  17. 17. 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
  18. 18. 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?
  19. 19. 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)
  20. 20. 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
  21. 21. 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
  22. 22. 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
  23. 23. 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
  24. 24. 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
  25. 25. 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
  26. 26. 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.
  27. 27. 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
  28. 28. 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;
  29. 29. 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;
  30. 30. 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
  31. 31. 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
  32. 32. 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.
  33. 33. 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.
  34. 34. 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.
  35. 35. 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.
  36. 36. 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.
  37. 37. 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
  38. 38. 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
  39. 39. 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
  40. 40. 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.
  41. 41. 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.
  42. 42.