Exportable Benefits

Summer Adjournment - Exportable Benefits

July 21st 2009

Below is the speech made this (Tuesday) evening in the House of Commons and following it is the speech that would have been made if the debate had not been time limited!

Unless there is movement in the interim I shall return to the fray in October when the House sits again.
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The House should not rise for the summer recess without addressing and resolving, a situation currently facing a small but significant number of citizens of the United Kingdom who are being denied their right to “exportable benefits”.

In October of 2007, the ECJ determined that aspects of Disability Living Allowance, Attendance Allowance and Carers allowance were sickness benefits rather than “special non-contributory benefits” and that, therefore, they were exportable and payable to United Kingdom claimants living in other EU states and Switzerland.

This decision has, potentially, a profound effect upon the incomes and wellbeing of those who, having left the United Kingdom to take up residence in other EU states, had benefits to which they had previously been told that they had an entitlement for life, summarily withdrawn on 1st June 1992.

Let us be clear: these are not “rich people who have chosen to leave the United Kingdom to take their money with them and to live in large villas with swimming pools in the sun”. They are, by implication, all suffering from advancing disability; most are elderly and drawing United Kingdom pensions. They have, throughout their working lives, paid UK taxes and national insurance contributions and have earned the right to those continuing benefits to which the ECJ says that they are entitled. It would appear that there are, at present, some two to three thousand such people and their move abroad has probably saved the UK taxpayer significant sums of money in continuing healthcare costs.

Although the ECJ ruling was issued on 18th October 2007 not until 24th February of this year (2009) that the Department for work and Pensions finally issued their “eligibility criteria” for the payment of exportable benefits.

First, the Department seeks to impose the condition that claimants must have resided in the United Kingdom for 26 out of the previous 52 weeks .Inevitably, many people who moved abroad prior to the ECJ ruling have found their claims rejected on these grounds.

Second, claimants are told that their applications for re-instatement fall because they did not appeal within the one month or thirteen month time limits set following the original decision to terminate benefits. Given that the ECJ ruling was not announced until October of 2007 it is clearly a condition designed to facilitate the rejection of claims for reinstatement rather than to facilitate them.

Indeed, in a letter to me dated 14th April 2009 the Minister for Work and Pensions says that:

“Where no appeal was made, decisions made before the ECJ ruling on 18th October 2007 cannot now be revised because it was not until that court ruling that these decisions were shown to be errors in law”

In other words

“We acted erroneously in law but you should have known of that before the ECJ ruling and lodged an appeal. Because you did not do that your claim is now out of time and we don’t have to pay you the money that the ECJ says is lawfully yours”!.

What an honourable Government should have done, as swiftly as practicably possible following the ECJ ruling in October of 2007, is to have written to every known claimant whose payments had been terminated by the Department and advised them that, following the ECJ decision, their claims were being reinstated and backdated. There should have been no requirement upon the claimants at all to instigate action to regain that to which they were entitled.

One claimant, who has had his application rejected, is my own constituent John Hamilton, now resident in France.

Mr. Hamilton has forty-four years of United Kingdom National Insurance contributions behind him paid during a long career in teaching and in civil engineering. He had his eligibility to receive Disability Living Allowance confirmed for life 0n 17th June 2002 while still resident in the UK. His last full payment of DLA was made, after advising the DWP of an impending move to France, on May 23rd. 2006. Mr Hamilton and his wife left to live in France on 9th June 2006.

On 13th March 2008 my constituent found on the internet a reference to the October 2007 ECJ ruling and wrote to the Department requesting reinstatement of his benefits. He was told that the Exportability Team were “awaiting confirmation of the eligibility criteria”.

Following the publication of the long-awaited criteria in February of 2009 Mr Hamilton received, on 23rd April he was informed by letter that a decision maker had rejected his claim.

My constituent then submitted a request for an appeal hearing before an Independent Tribunal.

In spite of my constituent’s request for a tribunal hearing he faced, on 7th July 2009, further delay in the form of a rejection of his application by another “decision maker”.

To date he has received no further information, no date for a tribunal hearing and no satisfaction.

Instead of the lame excuse offered by the “Exportability Team” to the effect that “The appeal submission may take slightly longer than normal business to prepare due to the complex issues involved”, what Mr. Hamilton – and many others in a similar situation – should have received is an apology from the Department for the chaotic mismanagement and delay following the ECJ ruling, immediate reinstatement of his benefits and, in his case, back-dated payments from the date of termination in May 2006.

In a letter to me correcting an erroneous oral parliamentary answer given in February 2009, The Minister of State for Work and Pensions told me that:

“We have been clear that if people claimed benefit before they moved abroad they are entitled to claim it for people who are eligible for it. It is NOT frozen at the limit at which they received it before they left”

John Hamilton was claiming DLA before he left the UK. He was awarded it for life. The ECJ has ruled that he is entitled to this benefit and he and those others like him want and deserve their money without further delay.

If this Government and this Minister seek to prevaricate further at the expense of a few elderly and infirm UK citizens and their carers who have paid their dues to the United Kingdom then it will be to their eternal shame.

I hope that when he comes to respond the Minister will feel able to announce that all of those who have had their benefits terminated as a direct result of an erroneous European parliamentary amendment will now, and without further argument or appeal, have those benefits reinstated and reparation in the form of back-payments made. Nothing less will suffice.
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Full speech if it had not been time limited

The House should not rise for the summer recess without addressing and, if possible, resolving, a situation currently facing a small but significant number of citizens of the United Kingdom who are currently being denied their right to “exportable benefits” by a government acting in defiance of a ruling of the European Court of Justice.

In October of 2007, reversing a decision of the European Parliament taken in 1992, the ECJ determined that aspects of Disability Living Allowance and Carers allowance were sickness benefits rather than “benefits in kind” and that, therefore, they were exportable and payable to United Kingdom claimants living in other EU states and Switzerland.

This decision has, potentially, a profound effect upon the incomes and wellbeing of those who, having left the United Kingdom to take up residence in, mainly, France and Spain but also in other EU states, had benefits to which they had previously been told that they had an entitlement for life, summarily withdrawn on 1st June 1992. It also affects those new qualified and potential claimants who have been denied fresh claims since that date.

Let us be clear: these are not “rich people who have chosen to leave the United Kingdom to take their money with them and to live in large villas with swimming pools in the sun” as some are wont to describe them. They are, by implication, all suffering from advancing disability; most are elderly and drawing United Kingdom pensions. They have moved South to be cared for by friends and family and to take advantage, usually for the sake of health, of a kinder climate. They have, throughout their working lives, paid UK taxes and national insurance contributions and have earned the right to those continuing benefits to which the ECJ says that they have a right. There are, at present, probably some two to three thousand such people – so we are not talking about a horde of potential claimants – and their move abroad has probably saved the UK taxpayer significant sums of money in continuing healthcare costs.

There are in the region of fifty Hon. Members whose ex-patriate constituents have already approached them for assistance and I am aware that my Rt. Hon. Friend the Member for West Dorset, my Hon. Friends the Members for Canterbury, Monmouth, Spelthorne and Shipley and the Hon. Members for Northavon and North Devon and also pursuing this issue. I am sure that others of whom I am not personally aware are individually doing likewise.

Although the ECJ ruling was issued on 18th October 2007 it was, disgracefully, not until 24th February of this year (2009) that the Department for work and Pensions finally issued their “eligibility criteria” for the payment of exportable benefits. Fundamentally, it quickly became apparent that the Department had endeavoured to contrive to deny the payment of benefits to as many claimants as possible and to construct a complicated process of appeal to deter the determined.

On 22nd June, in response to my written parliamentary question, the Parliamentary Under Secretary, the Hon. Member for Chatham and Aylesford, said that:

“The Department is already complying with the European Court of Justice ruling on the payment of exportable disability benefits”.

I have to respectfully suggest that that answer is incorrect and that the Minister has been ill-advised.

First, the Department seeks to impose the condition that claimants must have resided in the United Kingdom for 25 out of the previous 52 weeks, which is the standard not for contested claims but for fresh claims. Inevitably, many claimants who moved abroad prior to the ECJ ruling find their claims rejected on these grounds.

Second, Claimants are told that their claims for re-instatement fall because they did not appeal within the one month time limit set following the original decision to terminate benefits. That is a ludicrous condition given that the ECJ ruling was not announced until October of 2007 and it is clearly a condition designed to facilitate the rejection of retrospective claims for reinstatement.

Indeed, in a letter to me dated 14th April 2009 the Minister says that:

“Where no appeal was made, decisions made before the ECJ ruling on 18th October 200t cannot now be revised because it was not until that court ruling that these decisions were shown to be errors in law”

And that

“this means that for customers who did not appeal the decision to stop their disability benefits within the statutory time limits we will only be able to consider their entitlement from the date that they write to ask us to reconsider their position”.

In other words

“We acted erroneously in law but you should have known of that before the ECJ ruling and lodged an appeal. Because you did not do that your claim is now out of time and we don’t have to pay you the money that the ECJ says is lawfully yours”!

What an honourable Government would have done, as swiftly as practicably possible following the ECJ ruling in October of 2007 is to have written to every known claimant whose payments had been terminated by the Department and advised them that, following the ECJ decision, their claims were being reinstated and backdated. There should have been no requirement upon the claimants at all to instigate action to regain that to which they were entitled. Instead, this Government – this Department – took sixteen months to devise sufficient “wriggle room” to avoid payment before issuing its shameful criteria.

On 22nd June the Minister told me that

“Approximately 2100 people who are living in the European Economic area or Switzerland have contacted the Department in relation to making a new claim or to request re-instatement of an award of Disability Living Allowance, Attendance Allowance or Carer’s Allowance that had previously been disallowed because they had moved abroad. The Exportability teams have made decisions on around 1100 of those cases and are continuing to process the remaining requests of which there are around 1000”.

Note: “The Exportability teams have made decisions on around 1100 of those cases”. Made decisions – not re-instated payment!

One such claimant, who has had his claim rejected, is my own constituent John Hamilton, now resident in France.

Mr. Hamilton had his eligibility to receive Disability Living Allowance confirmed for life 0n 17th June 2002. His last full payment of DLA was made, after advising the DWP of an impending move to France, on May 23rd. 2006. Mr Hamilton and his wife left to live in France on 9th June 2006.

Mr Hamilton received, completed and returned appeal form DBD231 on 26th May 2006. Receipt was confirmed by telephone on 26th June 2006. No decision letter refusing export of DLA was received by my constituent.

On 13th March 2008 my constituent found on the internet a reference to the October 2007 ruling and wrote to the Department requesting reinstatement of his benefits. He was told that the Exportability Team were “awaiting confirmation of the eligibility criteria”.

Following the publication of the long-awaited criteria in February of 2009 Mr Hamilton received, on 20th March 2009, form DLA EP 1 with a letter dated 12th March. On 23rd April he was informed by letter that a decision maker had rejected his claim because it was out of time!

My constituent then submitted a request for an appeal hearing before an Independent Tribunal and on 5th May an Upper Tribunal Hearing in another similar case, JS vs. Secretary of State for Work and Pensions, identified the “26/52 week past presence in the UK” test for the nonsense that it is in the case of ex-patriate claimants and found against the Secretary of State.

In spite of my constituent’s request for a tribunal hearing he faced further prevarication in the form of a rejection by another “decision maker” on 7th July 2009. He also received Written Statements for the first refusal citing the discredited 26/52 rule and “lack of 2006 appeal” as grounds for refusal!

To date my constituent has received no further information, no date for a tribunal hearing and no satisfaction.

What he – and many other in a similar situation – should have received is an apology from the Department for the chaotic mismanagement and delay following the EJC ruling, immediate reinstatement of his benefits and, in his case, back-dated payments from the date of termination in May 2006.

In a letter to me correcting an erroneous oral parliamentary answer given in February 2009 The Minister of State for Work and Pensions (Rosie Winterton) told me that:

“We have been clear that if people claimed benefit before they moved abroad they are entitled to claim it for people who are eligible for it. It is NOT frozen at the limit at which they received it before they left”

John Hamilton was claiming DLA before he left the UK. He was awarded it for life. The ECJ has ruled that he is entitled to this benefit and he and those others like him want and deserve their money without further delay.

If this Government and this Minister seek to prevaricate further at the expense of a few elderly and infirm UK citizens and their carers who have paid their dues and in many cases served this Country in its Armed Forces or in the Foreign Service, then it will be to their eternal shame.

I hope that when he comes to respond the Minister will feel able to announce that all o0f those who have had their benefits erroneously terminated will now, and without further argument or appeal, have those benefits reinstated and reparation in the form of back-payments made. Nothing less will suffice.