Analysis of Parliamentary Debate


Westminster Hall

Tuesday 12 January 2010

[Mrs. Joan Humble in the Chair]

Exportable Benefits

1.   Whilst this paper is intended as an objective analytical critique of the above debate and reflects the views only of your co-founders, and even though we may appear to make certain criticism, this critique it is not intended to represent any personal attack upon any person a party to that debate, or any other persons represented or referred to in that debate, other than our government and their representatives. However, we do consider that since this matter centres essentially on matters of law, therefore some explaining is necessary.


2.   Firstly, we would wish to thank the Rt. Hon. Roger Gale MP for his Trojan support for our expat disabled citizens in their campaign to seek reinstatement of earlier lost awards of disability living allowance (‘Care’ element), (DLA), attendance allowance (AA) and carers allowance (CA), which we now know, in the light of the ECJ ruling of 18/10/2007 case C-299/05, had been wrongly removed for the sole reason the recipients of any of those benefits had relocated to another State within the EEA,  including Switzerland.


3.   For the record, since late 2008 Roger Gale has devoted a considerable amount of his time addressing this matter, not only on behalf of his constituent members, but also all those other expats so affected. His great effort has also generated other support, not only from within his own party, but across party lines and for which we must also express our thanks.


4.   Your co-founder, David R. Burrage, who is not personally affected by this matter, was also accorded the courtesy of a meeting with Roger Gale at our Parliament on 14 October 2009, to discuss this and another matter relating to the UK’s unlawful withdrawal of yet another benefit, from State ‘old age’ pensioners and there can be no doubt in any of our minds as to Mr. Gale’s most dedicated support.


5.   Sadly debates in Westminster Hall, are simply opportunities to raise cases and air grievances. Such debates do not, in themselves, lead to a definitive outcome. It is also quite apparent that our present government are still refusing to properly address this matter in accordance with the ruling of the ECJ and we see little change in this stance at this time, even though we already have had most relevant recent judicial rulings in favour of appellants, with further test cases currently pending before the Independent Appeals Tribunal Service.


6.   In the meantime it will also be necessary for us to first provide some explanation as to the history of events and the law which turns upon this matter, so as to put a proper perspective on the entire events leading up to the current situation.




7.   The current regulations covering the application of social security schemes to employed persons, to self employed persons and to members of their families moving within the Community are controlled by EU Council Regulation 1408/71. However, those regulations    have been amended many times since 1971 and with regard to the present matter, on 30 April 1992, following a proposal from the Commission they were amended by Council Regulation (EEC) No 1247/92 when a new Annex II(a) was included. This Annex II(a) was reserved for the inclusion of special non contributory benefits, and as such are not normally exportable. The regulations set it out this way: 


8.   Notwithstanding the provisions of Article 10 and Title III, persons to whom this Regulation applies shall be granted the special non-contributory cash benefits referred to in Article 4 (2a) exclusively in the territory of the Member State in which they reside, in accordance with the legislation of that State, provided that such benefits are listed in Annex IIa. Such benefits shall be granted by and at the expense of the institution of the place of residence. Therefore such benefits would not normally be exportable where they have been included into that particular Annex.


9.   At that time the United Kingdom sought to have the relevant benefits, hitherto exportable as sickness benefits, re-classified as special non contributory benefits and included into that new Annex. This request was not opposed and those benefits were then included into that Annex. However, provision was made at Article 2 of those amending regulations 1247/92   whereby, those in receipt of such disability benefits before the amending regulations entered into effect on 1 June 1992 would be able to continue to receive those benefits, providing they continued to meet the qualifying conditions, namely the medical criteria.


10.  Your Association first became involved in this present matter in the late 1990’s, when along with others, not least the late Wendy Winter de Garcia, President of the Expatriates Information Exchange, with whom we had worked in close liaison, since we had taken the view that DLA, AA and CA were more akin to sickness benefits and should therefore be exportable. At that time the Commission gave an undertaking to have a look at the UK’s benefits which had been included into that Annex II(a)


11.  It is important to point out that Community law cannot normally be challenged beyond a period of two months following its publication in the Official Journey of the EU. This is so as to maintain legal stability within the EU. Therefore we must look at events which finally led to the ruling of the ECJ on 18 October 2007.



12.  In keeping with the development of the internal market and not least the on-going case law of the Court of Justice, in 2005 the Commission proposed further emendations to Council Regulations 1408/71. Including amongst those emendations was a revision of Annex II(a) involving the removal of DLA (Care element only), AA and CA from that Annex, as they related to the UK and related benefits as they related to Sweden and Finland. The Commission was relying upon the case law of the ECJ, including the ECJ judgments in Friedrich Jauch v Pensionsversicherungsanstaltder Arbeiter and Ghislain Leclere, Alina Deaconescu v Caisse nationale des prestations familiales. We shall return to the Jauch case shortly, since it had the most significant affect upon that final judgement of the ECJ on 18.10.2007.


13.  The United Kingdom, Sweden and Finland objected to those proposed emendations, but only in respect of the removal from the said Annex II(a) of those benefits variously currently at issue.


14.  The Council of European Union upheld the submission by those Member States and those benefits were again included into Annex II(a), effectively remaining as non exportable benefits. However, when the European Parliament and Council adopted those amending regulations (EC) No 647/2005 on 13 April 2005, we then experience a legal manoeuvre, since whilst the Commission voted to adopt these new regulations, they also announced they reserved the right to appeal the adoption of those amending regulations, in accordance with Article 226 of the EC Treaty, before the ECJ, since now they were within the 2 month statutory period so as to permit a challenge. The Commission then initiated an action (infringement) against the European Parliament and Council, for annulment of those amending regulations insofar as Annex II(a) only, before the Court of Justice. The UK, Sweden and Finland were key players in that action, since those three States had a vested interest. Such parties to proceedings before the ECJ are referred to as ‘interveners’.


N,B. It is appropriate to mention that new social security coordinating Regulations 883/2004 come into effect on 1st May 2010 and whilst these new regulations, effectively abolish Council Regulations 1408.71. The principles enshrined in Regulation 1408/71 will remain, albeit the new regulations provided for more enhanced social security rights when moving within the Member States.


Advocate General’s Opinion:


15.  Little mention has been made by others about the fact that this matter, in accordance with a normal procedure, was first heard before the Advocate General J. Kokott, with all interested parties making their respective submissions. The Advocate General’s opinion of 3 May 2007 was then sent for a full hearing before the Court of Justice. Here it should be pointed out that the prior opinion of the Advocate General was also supported in that final judgement of the ECJ on 18 October 2007.


Decision of the European Court of Justice:


16.  The Commission had entered a single plea that the inclusion of DLA (care element), AA and CA in respect of the UK’s benefits and those related benefits of the other two States previously mentioned, was vitiated by an error at law and the court, in its adjudication, upheld that plea.


17.  When reaching their decisions, both the Advocate General and the Court of Justice had

relied heavily upon an earlier ruling in the case of Friedrich Jauch v Pensionsversicherungsanstalt der Arbeiter, Case- C215/99, which had been referred to that court by an Austrian Court on 16 March 1999, when seeking a preliminary ruling with regard to the Austrian care allowance. The judgement of the Court, delivered on 8 March 2001, was that the Austrian care allowance was a sickness benefit. The significance of the above dates will become apparent shortly when we look at the ruling by Judge John Mesher of 5 May 2009, when hearing a case then under appeal before the Upper Chamber of the Independent Appeals Tribunal Service, which is a part of our Ministry of Justice in accordance with the ‘Tribunals, Courts and Enforcement Act 2007’.


18.  Following the decision by the ECJ on 18.10.2007 we, as an Association, soon came to the firm conclusion that our government would resist proper compliance with the court’s ruling. This was so, not only following our governments procrastination after that decision, but also it can be seen from the transcript of that adjudication, where the UK’s representative at that hearing attempted, not only to preclude the right of the Commission to bring those proceedings before the Court, although in this they were supported by the Parliament and the Council as defendants, plus the other two intervening States but, also in respect of the UK,  to delay those very proceedings, by seeking more time to engage in the oral procedure. However, the grounds for the attempt to preclude those were rejected by the Court and the UK’s representative was rebuked when being advised by the court that they already had enough information upon which to reach a decision and that submission was also rejected. r


19.  At that time your Association was heavily committed in advising our members of their rights in relation to a whole range of many other issues. Nevertheless, we wrote to the Commission on 29 October 2007, when seeking certain clarification as to the proper effects of that ruling, but regrettably their response was not helpful and did not address the matters we had raised.


20.  On 30 November 2007 we sent a 6 page letter to a Conservative MP, in which we outlined the proper effects of that ruling and the then emerging  realisation that our government were showing no immediate intention of implementing the court’s ruling and we requested that the letter be forwarded to the Shadow Secretary of State. Regrettably our request fell on stony ground. 


21.  On 17 May 2008 we wrote to the Commission and requested they opened the infringement procedure against the UK for their failure to comply with the ruling by the ECJ.  We received a response, dated 17 June 2008, effectively informing us that it was the understanding of the Commission that the UK  were going to comply with that ruling and that an infringement could not be justified at that time. We were also informed that the delay was due to the large numbers of claims the DWP had to deal with. However, in the event it also became apparent that they were in fact not dealing with any of them. Also by this time we were experiencing a high volume of enquiries from our members so affected, many of whom had picked up on this matter following our inclusion onto our website on 28 October 2007 of the ECJ’s ruling.


22.  It is also necessary to point out that even up to the present day, not one person, to our knowledge, who had had their benefit removed, solely because they had re-located to another relevant State, has been informed by the DWP, of their own initiative, that they may be affected by that ruling of the ECJ. Indeed, the only information put out by the DWP was some scant information posted on the Directgov, website advising, to the effect, that the ruling by the ECJ was complicated and that they awaited legal advice. We have never considered that a posting of information on a Government website accords with a proper standard of communication, particularly where most of the citizens concerned in this matter were elderly and mostly not computer literate and where they were resident outside the UK.


23.  We then experienced further disproportionate procrastination by our government when claimants, who had had their benefit erroneously withdrawn, attempted to seek reinstatement so as to recover their earlier lost benefit/s. We then received numerous complaints from members about spurious reasons the DWP were offering when delaying the handling of their claims. Such excuses included:


1.      That the government were still in discussion with the Commission.


2.      The large number of claimants


3.      We were forwarded several written responses by the DWP to claimants, to the effect that their task had been exacerbated by the fact that customers records had been destroyed, and when setting out, “The ‘Data Protection Act’ states we are obliged to destroy all information about previous claims.”? This was a most shameful response, especially since the records in this case were essentially sickness/health related matters and further, the UK Data Protection Act states no such thing? Also it soon became clear that the DWP were able to access such records.


4.      Even in November 2008, 13 months after that court ruling a number of our members were quite wrongly advised that the DWP would be addressing claims within a few weeks?


5.      Whereas others at this time were and still are being informed that our government were awaiting legal advice?


6.      Also within the same time scale others were being informed that the DWP were expecting the result of legal advice early 2009?


7.      Others, during the same period of time, were being advised that our government do not expect to receive the result of legal advice until April 2009?


8.      Also claimants were being advised not to write again and that they will be contacted? During this period some members were treated to complete misinformation by the DWP, and where many of our members were also being quite wrongly advised as to the proper effects of the court’s ruling. In this respect it also became quite clear that the DWP’s  Exportability, Blackpool were lacking proper guidance when responding to claimants.


   9.  It also became clear that the DWP were orchestrating a campaign to frustrate claimants                   

        Including refusing, or at best delaying a claimant’s right to proper judicial appeal.


24.  The response by the Commission in their letter of 7 June 2008, had effectively tied our hands when they had declared that, in their opinion the UK were not unnecessarily delaying the implementation of the ruling by the ECJ and that an infringement could not be justified. Indeed. the Commission did not respond further to us at that time, although unbeknown to us at that time a change of head of department was being effected. 


25.  On 5 January 2009 we again wrote a 5 page detailed letter to the Commission further setting out the extreme difficulties being experienced by our disabled community, many of whom were quite elderly and needed help with their disabilities. We also criticised the ineptness of the Commission in this matter and again sought an assurance they would open the infringement procedure, so as to, if necessary, bring the UK before ECJ.


26.  From the outset we had advised all our members, and other campaigners, who chose to take an independent, rather than a qualified joint approach, that this battle to secure proper justice for our fellow expatriate disabled citizens, will only be resolved in the courtroom, or where we have a change of government, and even then, only where they are resolved to comply with the rule of law in this present matter. In this respect we do understand that there are a number of test cases pending appeal and that the Conservative party have, not only promised to reinstate awards erroneously withdrawn following an error at law, but also to properly award accrued recovery of earlier lost arrears. Which matter of recovery is also supported by the case law of Europe. However, as senior citizens, your co-founders have also learnt from experience that one cannot spend promises, which often fall by the wayside in the fullness of time, and neither should we take for granted that there will be a change of Party in office following the forthcoming general election.


27.  In January 2009 we learned of Roger Gale MP’s interest in this matter and we then commenced our liaison with him. Many of you will be aware of the run around he was given when he first raised this issue in Parliament. However, following Mr. Gale’s dedicated interest and activity there was some small movement when in late February 2009 the DWP made a short further announcement by way of a publication on the Government’s website. However, even then it only amounted to ‘fudge’, since the DWP continued to distance themselves from the proper effects of the court’s ruling.


28.  At this time different noises were also coming out of our Parliament from various government Ministers, although no real progress was made.


29.  We then witnessed the newly invented UK rule of the ‘past presence’ criteria in the UK, where applicants seeking reinstatement, were again expected to go through the same hoop they had already gone through when first being awarded any of the relevant benefits. We deal with this matter more fully shortly, but suffice to say at this time, that such a criteria does not accord with Community law. – See below.


30.  Meanwhile we have remained very active in this matter, as can be seen from the input on our website. Indeed on 10 May 2009 we published an appeal format for members, to adapt to their individual circumstances. However, as further spurious grounds for opposing claims for reinstatement, it was necessary to revise that format, which we published on 27 July 2009. In the meantime claimants were being incorrectly advised as to the law, when they were also being subjected to misinformation.



Right of Claimants to Damages:


31.  Also it was becoming quite clear that throughout this period most claimants were being subjected to a deliberately orchestrated administrative practice so as to frustrate claimants, not least by either, delaying or in most cases, refusing to process claims to the Independent Appeals Tribunal Service, even though a great many of you requested this lawful right of appeal. This situation has also been addressed by the ECJ  on 28 June 2001. - Gervais Larsy v Institut national d'assurances sociales pour travailleurs indépendants (INASTI.  Case, C-118/00.  Whilst this case centres upon a pensioners rights. The principles enunciated equally apply to the present matter. Where in the Summary of that adjudication it sets out:  “2. Any provision of a national legal system and any legislative, administrative or judicial practice which might impair the effectiveness of Community law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legislative provisions which might prevent, even temporarily, Community rules from having full force and effect are incompatible with requirements that are the very essence of Community law. That principle of the primacy of Community law means that not only the lower courts but all the courts of the Member State are under a duty to give full effect to Community law.”

Our Members should also be aware that this case law, along with another relevant case, was sent to us by the Commission in their most recent letter to us of 26 January 2010.


Right to Retroactive Recovery:


32.  It can also been seen from the above case law that the misapplication of Community law constitutes a serious breach of Community law, since in that judgement it also sets out:  


33.  “It follows from all the foregoing, that the reply to the second question must be that the application by the competent institution of a Member State of Article 95a(4), (5) and (6) of Regulation No 1408/71 to a request for review of a retirement pension, thus limiting the retroactivity of the review to the detriment of the person concerned, constitutes a serious breach of Community law if those provisions are not applicable to the application in question and if it follows from a judgment delivered by the Court of Justice before the decision by the competent institution that the institution wrongly applied an anti-overlapping rule of that Member State, and where it cannot be inferred from that judgment that the retroactive effect of such a review could be limited.” (para. 55 of that adjudication.)


Effect of the ECJ’s Decision - Mobility Element of DLA:

34.  We have received many enquiries with regard to the severance of the ‘care’ element from the mobility element of DLA. Put in the most simplistic of terms this came about since the Commission had to rely heavily upon the Friedrich Jauch case, which only addressed the Austrian care allowance. Therefore the Commission offered no submission in respect of the mobility element of DLA, especially since at that time there appeared to be insufficient grounds for doing so, and regrettably there is little or no case law upon which to rely. The effect of this was that the court had first to annul that part of the Annex II(a) in so far as it related to both component elements of DLA, plus AA and CA. The court then took the step of separating the carers element from the mobility element when it had this to say, “That fact warrants the Court exercising the power expressly conferred on it by the second paragraph of Article 231 EC (EC Treaty) in the event of annulment of a regulation, provisionally to maintain the effects of inclusion of the DLA as regards solely the ‘mobility’ part so that, within a reasonable period, appropriate measures can be taken to include it in Annex II(a) as amended.”

35.  The decision to sever the link between the care and mobility component elements of the UK’s DLA was the subject of some concern and observation by Judge J.Mesher, when he later issued his interim ruling on 5 May 2009, when hearing a case then under appeal in the upper Chamber of the Independent Appeals Tribunal Service, in respect of both component elements of DLA, case - CDLA/2078/2005. In this case the Judge made an iterim ruling in respect of the care element of DLA only, and in his summing up he had this to say:


“...difficult issues arise about the treatment of the mobility component of DLA in the light of the decision of the ECJ in Case C-299/05. For instance, there is a question whether the nature and characteristics of the mobility component are such that, although its listing in Annex IIa to Regulation No 1408/71 from 5 May 2005 was not challenged by the European Commission, the reasoning that led to the care component being classified as a sickness benefit should lead to the same result for the mobility component. There is also a question whether the ECJ in that case was right, in the light of the specific terms of Regulation No. 1408/71, to treat the care component and the mobility component as if they were separate benefits, rather than treating DLA as a single benefit, which would then have to be classified as a sickness benefit regardless of how mobility component would have been classified if it stood on its own.”(para. 33 of that adjudication).


36.  With further regard to the mobility element of DLA we must also go back and look at what the ECJ had to say in their judgement:

37.  It is necessary, however, for the Court to state that the straightforward annulment of the inclusion of the DLA in the list in Annex IIa as amended would lead to the United Kingdom being forced to grant the ‘mobility’ element of that benefit to an unspecified number of recipients throughout the European Union, although the fact that that part of the DLA is in the nature of a non-contributory benefit cannot be disputed and it could lawfully be included in that list (Annex II(a) )as a non-exportable benefit. (para. 74 of that judgement).

38.  Judge John Mesher intimated in his adjudication of the 5th May 2009 and again on 2 July 2009, when ruling in another case involving DLA that, he is to send the matter of the mobility element of the DLA back to the ECJ for their further consideration. However, we must advise our members that, not only is the ECJ the Superior Court, this particular matter is likely to be a long drawn out affair. We deal later with two of his recent rulings in this present matter.  However, it must also be remembered that there is a statutory time limit after the Council has adopted the measure to cause the mobility element, as a single element into Annex II(a) during which and objection may be lodged.

Application of Community law Pensioners and insured persons:

39.  In its application where reference is made to pensioners such a reference, must of necessity, apply also to sickness benefits. We have identified a number of authorities for this, not least the ruling in the ECJ of 31 May 1978 Algemeen Ziekenfonds Drenthe-Platteland v Pierick (Case 182/78), where it sets out: The definition of the concept in Article 1(a) of Regulation 1408/71 of the Council for the purposes of the application of the regulation has a general scope, and in the light of that consideration covers any person who has the capacity of a person insured under the social security legislation of one or more of the Member States, whether or not he pursues a professional or trade activity. It follows that, even if they do not pursue a professional or trade activity, pensioners entitled to draw pensions under the legislation of one or more Member States come within the provisions of the Regulation concerning ‘workers’ by virtue of their insurance under a social security scheme, unless they are subject to special conditions laid down regarding them. By reference to a ‘worker’, Article 22(1)(c) of Regulations 1408/71 does not purport to restrict its scope to active workers as opposed to inactive workers, the same reference being contained in Articles 25 and 26 in the same chapter respectively concern ‘unemployed persons and pension claimants.’ However, at this time we may also rely upon that which Judge J. Mesher had to say on 5 May 2009, when addressing the matter as to what constitutes a pensioner, Judge J. Mesher relied upon the, “judgment of the ECJ on 10 March 1992  in Chief Adjudication Officer v Twomey (Case C-215/90) [1992] ECR I-1823, R(S) 3/92, and where he set out, “...suggests that the answer is yes, in so far as they are payments of sickness benefit.” (para. 14 of his adjudication)

Determination Date of the Error at Law:

40.  Since the ruling by the ECJ much has been said as to the date to be applied as the effective date of that error at law. There are two separate issues to be considered here (a) the date the error was first made and (b) what would be considered reasonable to permit those so affected making proper recovery of their earlier loss, following such error. In respect of the latter, do we take the date of the recent  judgement of the ECJ, 18.10.2007 as being the effective date,  or do we take the date the Commission first announced they reserved the right to appeal the adoption of the amendment to Regulations 1408/71 on 13 April 2005, or the 26 July 2005, being the date the application to annul those amending Regulations was received by the Court of Justice, or do we take the date of the ruling in the case of Friedrich Jauch delivered on 8 March 2001, and upon which the ECJ had mainly relied, or do we go back to when the Austrian Court first submitted that matter to the ECJ for a ruling on 16 March 1999, or do we go even further back to the date the error was first made?

41.  We have always taken the dedicated view that, where any error has subsequently been discovered to having been made, then as a matter of law, that error must go back in time to the date that error was first made, (Here we exclude the provisions of Section 27 of the Social Security Act 1998 – referred to later), or the date it took effect. In our reasoning we apply a simple test of logic which leads us to the only possible conclusion and that is that the error itself must go back to the very date the error was first made and for practical reasons that was the 1 June 1992, when the error first took effect. Here we can look for some guidance from Judge John Mesher in his ruling of 5 May 2009. Although it should be understood that he did not provide any definitive conclusion, since it is so often the case where the circumstances of any particular case must be viewed on its own merit. Nevertheless, his ruling in that case is important. – See ruling by Judge J. Mesher of 05/05/2009 below:

The past presence residence test of 26 weeks in previous 52 weeks:

42.  This is clearly in breach of Community law and in that respect the Commission has opened the infringement procedure against the United Kingdom. Our members should be aware that the DWP had already advised the Independent Appeals Tribunal Service in late 2008 that they could not defend their past presence criteria. Again on 31 March 2009 in a relevant case then under appeal before Judge John H. Levenson, in the Upper Chamber of the Tribunal Service, – Case, CA/3746/2008, the DWP advised the tribunal, as we understand it, the day prior to that hearing, that they could not defend their past presence in the UK criteria. This appeal was then duly upheld. Further, following exchanges between your co-founder Peter Woodall, and Terry Moran, the Chief Executive  of the Pensions, Disability Carers service, with express regard to this past presence criteria, Peter received a letter, dated 16 June 2009, in which Mr Moran set out his own confusion of the past presence Criteria, “The Department accepts that residence conditions on the payment of disability benefits must be set aside following the judgement and accordingly it is not applying the domestic entitlement conditions of "ordinary residence" and "presence" to cases, but other domestic conditions of entitlement such as disability conditions (We do not quarrel with disability conditions, nor do we quarrel with a past presence test when it implies that a claimant would have acquired the status of an insured person and where the UK remained the Competent State within the meaning of Council Regulations 1408/71.) Mr. Moran continues, “...the past presence test" (which does not require current residence but looks at past events) do still apply just as they do for someone claiming the benefit who is living permanently in the United Kingdom. You may wish to look at the guidance we have issued to the Department's decision makers in these cases.

43.  Just what was it exactly that Mr.Moran was attempting to say, since he refers to their no longer applying the past residence criteria to claimants, but then refers to other domestic conditions and the ‘past presence test’ do still apply? What we do know is that his department is still applying the past presence test of 26 weeks in the previous 52 weeks and It really is of no importance were we to say that the members we represent are those who will already have fulfilled the domestic entitlement as insured persons and had, a right, as we know, to continue to receive their benefit, provided they continued to meet the qualifying criteria. This response must then be viewed alongside statements uttered by the disabled Minister Jonathan Shaw, even as recently as during that debate in Westminster Hall when he stated, “.....the imposition of conditions such as the past presence test is compatible with regulation 1408/71. If the hon. Member for Forest of Dean (Mark Harper) wishes, I shall send him details of the regulation. Conditions of entitlement under domestic legislation must be taken into consideration. Not only did we then see where Jonathan Shaw was at cross purposes with his Chief Executive, Terry Morran, he also displayed a lack of proper understanding of Community law, when stating that domestic conditions of entitlement must be taken into consideration. We have to inform Jonathan Shaw that yes, they must ‘also’ be taken into consideration, but only where those conditions accord with Community law. It is quite apparent that Jonathan Shaw is way out of his depth when attempting to even fathom the law. It is quite pathetic to learn where a Minister of the Crown has to resort to the shabby tactics of a confidence trickster, when offering to send another member of the House Community Regulations, which of course, are readily available on the EUR-Lex website to anyone who wishes to view or download them. (Debate para.94)

44.  Roger Gale was more than charitable when describing Jonathan Shaw as ‘the hapless Minister’. It is quite clear that Jonathan Shaw has been fastly secured into the driving seat of our Government’s cost saving attempts at the expense of those least able to afford it and in the certain knowledge they are breaching Community law.

45.  The essential element here is that citizens who qualified for an award of any of the relevant benefits  were granted their award as an insured person, or as a dependent family member within the meaning of Regulation 1408/71 in the case of sickness benefits, and that status will not change merely because of their re-location to another relevant State, unless they become an insured person in that other State, when that other State will normally, but not always, become responsible for the payment of a relevant benefit. Otherwise, as is the case in respect of the overwhelming majority of those seeking reinstatement, the United Kingdom is the competent State within the meaning of Council Regulations 1408/71.

46.  Community law is quite clear and for example we quote the judgement of the ECJ of 18 April 2002. - Johann Franz Duchon v Pensionsversicherungsanstalt der Angestellten. - Case C-290/00.  Whilst this case involves a right to a disability pension following an accident at work, nevertheless, the same effects of the relevant Articles of Regulation 1408/71 still apply and those are that the claimant was an insured person within the meaning of those regulations, to the exclusion of all other Member States, where the circumstances which give  rise to the claim occurred in the first mentioned State. This case law was also brought to our attention by the Commission in their letter to us of 26 January 2010.  

Relevant Operative Part of the above Judgement:

47.  2. Article 94(3) of Regulation No 1408/71, as amended and updated by Regulation No 118/97, read in conjunction with Article 48(2) of the EC Treaty (now, after amendment, Article 39(2) EC), must be interpreted as precluding a national provision such as Paragraph 235(3)(a) of the Allgemeines Sozialversicherungsgesetz, which provides an exception to the requirement of a qualifying period as a condition for the acquisition of the right to an occupational disability pension where that disability is the result of an accident at work - which occurred, in the case in point, before the date of entry into force of that regulation in the Member State concerned - only in the event that the victim had been insured compulsorily or privately at the time of the accident under the legislation of that State, to the exclusion of the legislation of all other Member States.  3. Articles 48(2) and 51 of the EC Treaty (now, after amendment, Articles 39(2) and 42 EC) must be interpreted as meaning that they preclude a provision such as Paragraph 234(1)(2)(b) of the Allgemeines Sozialversicherungsgesetz, read in conjunction with Paragraph 236(3) of that law, which takes into account, for the purposes of prolongation of the reference period during which the qualifying period for the acquisition of the right to a pension must have been completed, only those periods during which the insured person received a disability pension under a national accident insurance scheme, without providing for the possibility of a prolongation of that period where a benefit of such a kind was paid under the legislation of another Member State.


Refusal by the DWP to expedite appeals:

48.  Any refusal or withholding of a right to a review, in this matter of the relevant benefits, by an institution of the Competent State constitutes a serious breach of Community law, as enunciated in the decision of the ECJ on 28 June 2001 in the case of Gervais Larsy v Institut national d'assurances sociales pour travailleurs indépendants (INASTI). – Case C-118/2000 where at the 2nd paragraph of its summary is set out:

“Any provision of a national legal system and any legislative, administrative or judicial practice which might impair the effectiveness of Community law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legislative provisions which might prevent, even temporarily, Community rules from having full force and effect are incompatible with requirements that are the very essence of Community law. That principle of the primacy of Community law means that not only the lower courts but all the courts of the Member State are under a duty to give full effect to Community law.” -  The currently on-going conduct of the Secretary of State, where her department has been and still is, either refusing or delaying appeals by claimants in the light of the ruling constitutes a serious breach of Community law. This conclusion may also be drawn from the fact that the ECJ delivered its judgement over 27 months ago.

Ruling by Judge John Mesher on 5 May 2009. Case CDLA/2078/2005

49.  In a case then under appeal in respect of both elements of DLA the appellant had first been awarded DLA on 10 April 1997 and on 12 December 2001 he had moved to Germany when his benefit was withdrawn. Without dealing with matters which caused such a lengthy delay before the case was heard, suffice to say that the claimant appealed that decision and when reaching his decision the Judge made two relevant points.

1st  “One of the necessary conditions in Article 4(2a) (non exportable social security benefits) is that the benefit in question is listed in Annex IIa. From 5 May 2005 (Being the day following the amending Regulation (EC) No 647/2005 was published in the Official Journal of the EU) the care component of DLA has to be regarded as not listed there. The ECJ's judgment then requires that it be regarded as a sickness benefit.” The Judge then went on to say this,  (2nd point) “I do not, in the light of the date of the decision under appeal, have to decide in this case whether that position applies only to claimants who have a residence requirement first applied to them on or after 5 May 2005 or whether it also applies as from that date to those who, like the claimant in the present case, left the UK before 5 May 2005 and had the residence requirement in the British legislation applied first to them before that date. (para. 9 of his adjudication.)

50.  Here Judge J. Mesher does however, take the first entitlement date back to 05/05/2005 we also have to look at his further ruling in that case as the judge then went on to say:

 In relation to the period before 5 May 2005, the approach in the previous paragraph does not supply a complete answer. Before the purported amendment from that date, attendance allowance, invalid care allowance (carer's allowance under a previous name) and DLA were all listed in Annex IIa and cannot be regarded as not having been. But the decision of the ECJ in Jauch v Pensionsversicherungsanstalt der Arbeiter (Case C-215/99) [2001] ECR I-1901 does supply the answer. The ECJ held there, differing from some previous decisions, that the fact that a benefit is listed in Annex IIa is not conclusive that it is a special non-contributory benefit. (para.10)

51.  Now we already see where the date of determination can lawfully be taken back to beyond the  8th March 2001, being the date the ECJ delivered their ruling in the Friedrich Jauch case.

52.  When upholding the appeal and delivering his interim decision Judge John  Mesher had this to say, “An interim decision can be given now in relation to the care component of disability living allowance. That decision is that the claimant's appeal is allowed and that the decision dated 24 September 1998 awarding the claimant the middle rate of the care component and the higher rate of the mobility component from and including 1 August 1998 does not fall to be superseded in relation to the care component with effect from 24 January 2002 or any earlier date on the ground of relevant change of circumstances on the claimant's ceasing to be ordinarily resident in Great Britain after 12 December 2001.


53.  Without protracting the legal issues in this matter and the not inconsiderable case law which turns upon it, we can look for the answer from that which Judge Mesher also had to say when setting aside the appellants earlier disallowed appeal and when he said this, “It is now clear that the appeal tribunal of 21 May 2004 made material errors of law. First, it confirmed the decision that on supersession the claimant was not entitled to DLA from and including 13 December 2001 when, as is now a matter of agreement, section 10(5) of the Social Security Act 1998 and regulation 7(2)(c) of the Social Security and Child Support (Decisions and Appeals)   Regulations 1999 as then in force prevented the decision of 24 January 2002 from taking effect from any date earlier than 24 January 2002. Second, and more importantly, its decision was not consistent with the effect of Regulation No 1408/71 in relation to the care component of DLA, as revealed by the decision of the ECJ in Case C-299/05. Although Mr Heath for the Secretary of State has accepted in his submissions that that is so, some brief unpacking of the principles involved is necessary in order to explain the interim decision that is being made.” .(para. 7)


54.  Here we also have to remember that whilst Member States may impose their own rules for awarding benefits, however those rules must accord with the principles of Community law.


55.  The Judge then went on to say, “Mr Heath for the Secretary of State was therefore right to accept that from 13 December 2001 onwards the question of whether Regulation No 1408/71 compelled the UK to allow the "export" of the claimant's care component of DLA was not governed by the rules on special non-contributory benefits, but by the rules on sickness benefits. The same will apply in other similar cases and was accepted by counsel for the Secretary of State at the oral hearing of the ‘test’ cases’. The Judge also went on to say, “I note also that the ruling of the ECJ in Case C-299/05 cannot be a "relevant determination" for the purposes of section 27 of the Social Security Act 1998 and its restrictions on the effect of "test cases." in relation to past periods.” – (Here it should be mentioned that Section 27 of this Act refers to restrictions on entitlement to benefit in certain cases of error. (para. 11).


56.  Now we see where not only the solicitor for the Secretary of State, Mr. Jeremy Heath, agreed that the rules governing the export of  benefits could not be applied on 13 December 2001, so did Counsel acting for the Secretary of  State. You will also recall that this date post-dates the Friedrich Jauch ECJ ruling of 8 March 2001.  What is even more surprising is where currently the Secretary of State is also refusing to recognise the legal opinion of her own lawyers, as well as Judge J. Mesher. This represents an extraordinary state of affairs.


57.  In the above case the Judge, when issuing his interim decision, also had this to say, “On the appeal against the decision of 24 January 2002 The result is that the relevant change of circumstances that occurred on 13 December 2001, of the claimant ceasing to be ordinarily resident in Great Britain, could not in law have led to an alteration in the decision awarding the claimant DLA on an indefinite basis (at least as far as the care component is concerned). That decision, to that extent at least, continues to operate.” (para. 32)


58.  When upholding the appeal Judge Mesher reinstated the award for the care element of DLA with effect of 13 December 2001, being the day following its withdrawal from the appellant. The Judge also had this to say, “I can see no obstacle to the Secretary of State now making payment of the accrued arrears.”


59.  In a test case involving DLA before Judge J. Mesher on 2 July 2009, Case – CDLA/2106/2006, the Judge took the recovery date of the care element of DLA back to 3 August 2005, when he also set out: “I can see no obstacle to the Secretary of State now making payment of accrued arrears due.”


60.  There can be no basis in law where the currently adopted position of our government is that, the recovery of earlier withdrawn awards can only be effected by those who lost their award after the date of the ruling by the ECJ on 18.10.2007, or indeed, where claims are made by British insured persons, within the meaning of Council Regulations, arising after they had re-located to another relevant State and where the UK remains the Competent State within the meaning of those Regulations.


 Recovery of Lost Benefits by Survivors.


61.  Sadly we are now learning of the deaths of claimants, where they had been unable to re-secure their right to any of the relevant benefits. Therefore we would urge their surviving beneficiaries to continue to pursue the right to recovery of accrued arrears as a matter of law, plus their right to proper compensation by way of damages.    


62.  When analysing the debate it must be appreciated that there are complex issues involved in this matter to the extent where finer legal minds have had to be brought to bear, and where there has also been a diversification of opinions as to the proper effects of that ruling by the ECJ. from  those not qualified to make such determinations.


63.  Further, Roger Gale will be the first to admit that he is not a lawyer and we also have to accept that a debating chamber of the House of Commons is not a court of law, but a political forum. Nevertheless, we consider that the law does have a rightful place in any debate, where the substance of that debate turns upon matters of law.


64.  In summary of that debate we have to express our regret that, the principals to that debate played a very lengthy emotional card, rather than to address the legal issues in this matter. Further, we consider they did so to the expense of the very purpose of that debate, which was to secure the UK Governments’ proper compliance with EU Community law, as defined by the European Court of Justice.  It also has to be acknowledged that by the time the Rt. Hon. Jonathan Shaw MP, Minister for the disabled, had made his brief, but flawed response, his opponents had run out of time and there were therefore unable to counter with any qualified rebuttal. This is particularly so because Jonathan Shaw was, not only able to take over the debate in the short time then remaining, he was also allowed to deliver a rather arrogant and ill founded response, which was not sustainable at law.


65.  We trust others will see this analysis as a constructive critique and hopefully where it may serve to offer some guidance to others when exchanging further with our government.


66.  We have arranged the debate by including paragraph numbers, so as to enable particular referencing, and hopefully we have not strayed from the accurate reporting of that debate.


67.  Further, whilst we have highlighted and included our observation, we do not seek to suggest that those who were a party to that debate should have included specifically the material we have set out here. We have done so in order to enable others to better understand all the issues in this matter, not least the law which turns upon it. Therefore, that which we now set out should be read in conjunction with the foregoing. We have also attempted to exercise impartiality. 





                     The debate in Westminster Hall on 12 January 2009:




12 Jan 2010 : Column 167WH

Motion made, and Question proposed, That the sitting be now adjourned.-(Jonathan Shaw.)

9.30 am

1.  Mr. Roger Gale (North Thanet) (Con): Good morning, Mrs. Humble. I am grateful for the opportunity to raise this issue and I hope that my voice will last long enough for me to place my concerns on the record.

2.  Simon Morgan e-mailed me just before Christmas. He told me that his father had died on 12 December 2009. Chris Morgan and his wife had lived in Alicante in Spain and were endeavouring to secure the payment of exportable benefits. Let me quote from an article written by Chris Morgan for the Costa Blanca News in May 2009. "In the past, the Department of Work and Pensions...decided that anyone who was receiving a disability living allowance, carer's allowance or attendance allowance and moved to another EU country would not receive this allowance. (This of course was factually incorrect, since it was a determination by the EU Parliament and Council when adopting Council Regulation (EEC) No 1247/92 of 30 April 1992, amending Council Regulations 1408/71, and which came into effect on 1 June 1992, albeit that the United Kingdom had successfully applied to have the relevant benefits re-classified as special non-contributory benefits, and entered into a new Annex II(a) to 1408/71 This new Annex was  reserved for the inclusion of normally non-exportable benefits. However, Article 2 of those amending regulations provided for those already in receipt of any of the relevant benefits were to be permitted to continue to export them. We use the expression normally, since there derogations to include, for example ‘special’ cases and in respect of family allowances, also included in that Annex, where their exportability is triggered by Article 77 to 79 of 1408/71 in respect of State pensioners, their survivors and orphans ) In 2005, a 'test' case was put before the European Court of an attempt to "secure these benefit payments for "non-UK residents.(Again this strays from the true facts, since this came about in the light of the development of the internal market and with special regard to the more recent case law of the Court of Justice, not least the Friedrich Jauch case of 8 March 2001, when the ECJ had ruled that the Austrian ‘care’ allowance was a sickness benefit, the effect of which, was that they are required to be exported in accordance with Regulation 1408/71. The Commission proposed certain emendations to Regulation 1408/71, which led to the most recent ruling by the ECJ, including the removal of the relevant benefits from Annex II(a). However, the UK, Sweden and Finland successfully opposed the removal of those relevant benefits, as they applied to those States respectively. The new amending Regulation (EC) No 647/2005 was adopted by the Parliament and Council on 13 April 2005, with the relevant benefits having been returned to the Annex II(a). At that time the Commission gave formal notice that they reserved their right to appeal those amending regulations before the Court of Justice. This appeal, which was based upon a single plea that the inclusion of those benefits, save for the ‘mobility’ component element of the UK’s DLA, was vitiated by an error at law. That error was that those benefits had been wrongly classified as special benefits, especially where the Court of Justice had much earlier ruled that the ‘care’ element of those relevant benefits were sickness benefits.) On the 18th October 2007, the ECJ ruled against the UK (No, the UK were not defendants in that case, but were ‘interveners’. The Court, in its findings, upheld the plea by the Commission and reclassified DLA ‘care’ element, AA and CA as sickness benefits and, in effect, as such, the Members States were required to permit their export, provided other domestic requirements were met. Further, a significant matter, which is being avoided by our Government, was the advocate General’ opinion of 3rd May, 2007 in this  matter and which was adopted by the ECJ, when it was set out thus,”...the Commission correctly observes – that mere listing of a benefit in Annex IIa does not produce any independent legal consequences.” (Para 42 of his opinion, delivered to the Court of Justice). Put in simple terms the mere listing of a benefit in Annex II(a) does not provide conclusive evidence that such a benefit is in indeed a special non-contributory benefit. The purpose of those benefits, as sickness benefits, did not change since their first listing in that Annex II(a) and as such we now know that they always were exportable benefits and having proper regard to the case law of the ECJ, they had been wrongly withdrawn under the present circumstances)  but for the next 18 months the DWP procrastinated, saying "'We are considering the legal implications of a decision by the European Court of Justice and will inform you of the outcome when the result is known.' In March this year" - that is, 2009- "we were informed by the DWP...that they were now able to look at our case. The letter went on to say, 'The ECJ have decided that certain UK disability benefits are to be considered sickness benefits. This means that they will be paid to some people who leave the UK to live in another EEA state or Switzerland.' (This was not an accurate statement by the DWP since it clearly wrongly inferred the future tense from the date of the ECJ’s ruling of 18.10.2007, whereas the ECJ had relied upon much earlier case law when reaching their decision. – See under ‘Decision of the European Court of Justice’ para. 16 of the Forward) but for the next 18 months the DWP procrastinated, saying "'We are considering the legal implications of a decision by the European Court of Justice and will inform you of the outcome when the result is known.' In March this year" - that is, 2009- "we were informed by the DWP...that they were now able to look at our case. The letter went on to say, 'The ECJ have decided that certain UK disability benefits are to be considered sickness benefits. This means that they will be paid to some people who leave the UK to live in another EEA state or Switzerland.'(See para 48. of the above Forward where it addresses such conduct.)

3.  The letter- to Chris Morgan- "then states, 'The decision affects Disability Living Allowance (care component only), Attendance Allowance and Carer's Allowance. These benefits can now be paid'" if you satisfy  "'certain eligibility conditions'...from a letter we received at the end of would appear that the DWP have shut the door on ALL those, like us, who are already living abroad because this latest letter states, 'As you had not been Great Britain for 26 weeks out of the previous 52 on the day you asked us to look at the decision again, you cannot get Attendance Allowance'". (Whilst member States may apply their own domestic regulations as to entitlement to sickness benefits, such regulations must also accord with the primacy of Community Law and a past presence criterion of 26 weeks in the previous 52 weeks does not accord with that law, - See The past presence residence test of 26 weeks in previous 52 weeks does not accord with Community law – See under ‘Application of Community law Pensioners and insured persons’ at para. 19 above) Further,  such benefits are not determined by residency alone, but rather as to whether a Member State is and remains the Competent State for the award of such a benefit, and in this respect they have to look at whether the person is, or has been an insured person, within the proper meaning of Council Regulations 1408/71 and that they meet the medical requirement, as applied to all insured persons when considering any such award. In this case the benefit was withdrawn through an error and therefore must not only have been restored, the case law of the Court of Justice, also demands recovery of accrued arrears, as well as proper compensation by way of damages, where any Member State fails to properly apply Community law. – See para. 46 and 47, case, Johann Franz Duchon and para. 48, case of Gervais Larsy in the above Forward.)

4.  The late Chris Morgan, eight months ago, summed up the Government's shameful position precisely and they have been wriggling on the hook ever since.

5.  The UK/EU Disability & Carers Group, based in Northern France, wrote to the Prime Minister recently, saying: "While you are busy deciding when you are going to comply with the European Court of Justice ruling...we...have received...the following message from the wife of one our members who resides in Spain, having gone there on doctor's" orders "with the hope that it would prolong his life-as it did." (The late Chris Morgan was also one of our members, who had become despondent over the failure of our Government to properly apply Community law, and where we had quite accurately determined from the outset, that this matter would only be resolved following judicial intervention. In the meantime we had set about advising our members as to how to properly address their appeals in the proper legal context, and we do know that most of those involved with the above Group had used the format for appeal we had posted onto our website.)

12 Jan 2010 : Column 168WH

6.  The letter says: "I am writing on behalf of my husband. They do not think he will last until next week. We are just waiting for the Army to fly in my two sons tomorrow and then they will increase the morphine and he will not be lucid. They say he is fading fast. The first thing he said this morning was, 'The DWP has won. I am going to die before they cough up...' The rest is unprintable."

7.  My first question to the Minister is how many more UK citizens now living within the EU or in Switzerland will have to die without receiving the benefits to which they are entitled, while this Government remain in breach of the law? (Not unexpectedly Jonathan Shaw did not answer that question when making his address.)

8.  The Minister is aware that this is not the first occasion on which I have raised this issue in debate. He is aware that I have tabled parliamentary questions to his Department and have challenged the Prime Minister orally on the subject at Prime Minister's Question Time.

9.  The Minister may find that he has a personal interest in this matter. Another claimant has written from his home in France to Revenue and Customs, declining to pay his tax. That claimant says: "For over six years I have been denied the Disability Living Allowance to which I am entitled under judgement of the European Court of Justice. I am very disabled and losing my sight, yet the DWP continues to squabble with the European Commission, which is now taking" Her Majesty's Government "to court (This, of course is, not factually accurate, since as at this time the Commission have merely opened the procedure, which could lead to the UK being brought before the Court of Justice. We are a long way off that yet.  We have always tried to disseminate accurate  information but, unfortunately others have distributed misinformation through their lack of understanding, not only of Community law, but also the judicial processes. Regrettably many judicial appeals before the Tribunal Service fail, solely for the reason the appellant has not properly addressed their appeal. This is confirmed by this Service)  for failure to pay British citizens living in the EU the sickness benefits to which they are entitled under Community law. (Articles 10 and 12 of Council Regulations 1408/71 sets this out)This sickness benefit would be tax-free, and exceeds the amount of my private pension, which you tax-like rubbing salt into an open wound." (We are left wondering as to why this person is paying income tax in the UK on a private pension, since as a resident of France, his income tax obligation is to the French State. That aside all former government employees, including certain of those employed by local councils, where they are in receipt of a pension for their services rendered, even though they would have contributed towards that pension are obliged to pay income tax in the UK on such pensions?)

10.  Mr. Peter Atkinson (Hexham) (Con): I congratulate my hon. Friend on securing the debate and on the work he has done over a considerable length of time in sticking up for the unfortunate British citizens who have been so shamefully and dishonourably treated by the Government. (We fully concur with those sentiments.)

11.  Several of my constituents reside in Spain on doctor's orders-my hon. Friend mentioned that earlier-because living in a warmer climate helps their disability. Recently, with the collapse of the pound against the euro, their financial situation has become much more urgent and that has added to the trouble faced by my constituents, my hon. Friend's constituents and those of all other Members.

12.  Mr. Gale: I am grateful to my hon. Friend for his kind comments and his support: he, in common with a number of Members on both sides of the House, is seeking justice for that group of people.

13.  As I said in the summer Adjournment debate-I will put it on the record again because it is relevant-setting aside the matter of law, which we will come to in a moment (Unfortunately Mr. Gale did not properly address the law later Articles 10 and 22 of Council Regulations 1408/71), there is an impression abroad that the people we are talking about are rich, have gone to the sun, saying, "The hell with the United Kingdom", and live in splendid retirement with big yachts and lots of drink, and that they do not need any benefits. My hon. Friend has made the point that a huge number of those people have gone south for the benefit of their health, because they have respiratory or other conditions, and are eking out an existence. The other important point, to which I will return, is that they have been UK citizens and taxpayers, and many still are. (As Mr. Gale will himself confirm, early last year (2009) our Government set about orchestrating a campaign of brandishing British expat citizens, particularly those who had exercised their right of free movement to relocate to Spain, as being responsible for a high level of benefit fraud. They have even set up ‘snitch’ hotlines in Spain. Whereas the reality of the situation is that the overwhelming majority of expats resident within the EEA and Switzerland are law abiding State ‘old age’ pensioners, or early retirees and moreover our Government should be looking closer to home in respect of this type of fraud, not least at their own system where they dole out money so often without ensuring proper entitlement. The Government campaign was intended to alienate UK residents from their opposite numbers living elsewhere within the EEA, in order for our Government to buy time whilst they pushed through legislation in an attempt to circumvent the very principles of the right of free movement, as enshrined in Article 18 of the EC Treaty. Indeed, following the ratification of the Lisbon Treaty the EU is now most effectively but a single area without internal frontiers.)

12 Jan 2010 : Column 169WH

14.  The chap I mentioned a moment ago who wrote to Revenue and Customs lived-his family and all their friends still live-in the parliamentary constituency of Chatham and Aylesford. Some 50 Members of Parliament from all parties have a constituency interest in this subject, and I hope and believe that more of them will join us later this morning.

15.  Many of the claimants have appealed against the DWP ruling. That is why they have sought the support of their UK Members of Parliament. I believe that the appeal process has been deliberately spun out by the Department. (See paragraph 48 of our above Forward to this debate, since this also was not mentioned in that debate, albeit we had offered our assistance to advise) On 3 December 2009, my constituent, John Hamilton, noted that the Directgov website had been revised to read: "The Department for Work and Pensions...has selected a small number of these appeals...(known as lead cases). These have been sent for tribunal hearings. The DWP has requested that similar cases are suspended until the tribunal has made a decision. It is expected that the tribunal will not hear these cases until January 2010 at the earliest. That is despite the fact that on 20 November 2009, tribunal Judge Jeremy Bennett ruled: "The Tribunal Service at Sutton shall establish the availability of the parties and their representatives before listing, subject to the proviso that the hearing must take place in January 2010 unless directed otherwise by a Judge hearing this case. That was translated by Daniel Vickery, Social Security and Child Support Appeals tribunals team leader at Sutton into the following request: "Could you please provide me with your availability for January and February." (What has emerged, following feed-back from our members, is that the Exportability Team of the DWP, have been deliberately frustrating claimants by giving them inaccurate advice as to their rights and not according them the proper right to have their claims for re-instatement progressed, with due diligence to the Independent Appeals Tribunal Service. This type of conduct has already been addressed by the ECJ – See our para. 31 of the above ‘Forward’.  With regard to the matter of the listing of such cases and the availability of the claimant referred to, this matter is a trifle in respect of the broader and more important matters at issue. This Judge is the Regional 1st Tier Tribunal Judge, formerly known as the Regional Chairman, Sutton and further, experience teaches us that judges will often make such pronouncement without proper regard to currently scheduled listings and, in any event, he will have been consulted by Mr. Vickery. Therefore no great weight should be attached to that particular matter.)

16.  My constituent, John Hamilton, has now been told to look at dates at the beginning of March, so Judge Bennett's ruling is effectively being pushed into the long grass. (See above para.15)

17.  In the meantime, what of the grounds for the Government's continued defiance of the ECJ ruling-the so-called past presence test, requiring a claimant to have lived in the United Kingdom for 26 of the previous 52 weeks (Article 10a (4) of Regulations 1408/71 specifically excludes such a criterion) to be eligible to claim? In response to one of my earlier parliamentary questions back in June, the Minister asserted: "The Department is already complying with the European Court of Justice ruling on the payment of exportable disability benefits."-[Official Report, 22 June 2009; Vol. 494, c. 680W.]  We now know that statement to have been ill-advised. (Here, when referring to the past presence criterion we do consider that Mr.Gale should have raised most relevant and very important matters. Firstly, that the DWP had already advised the Independent Appeals Tribunal Service in late 2008 that they could not defend their past presence criteria. Again on 31 March 2009, in another relevant case then before Judge John H. Levenson in the Upper Chamber of the Tribunal Service – Case, CA/3746/2008, the DWP advised the tribunal, as we understand it, the day prior to that hearing, that they could not defend the past presence in the UK criterion. This appeal was duly upheld. Further, following exchanges between your co-founder Peter Woodall, and Terry Moran, the Chief Executive  of the Pensions, Disability Carers service, with express regard to this past presence criteria, he received a letter, dated 16 June 2009 in which Mr Moran set out his own confusion of the past presence Criteria thus;


“The Department accepts that residence conditions on the payment of disability benefits must be set aside following the judgement (Referring to the ECJ of Case 18/10/2007  C299/05) and accordingly it is not applying the domestic entitlements of  “ordinary residence” and “presence” to cases, but other domestic conditions of entitlement such as disability conditions and the “past presence” test (which does not require current residence but looks at past events) do still apply just as they do for someone claiming the benefit who is living permanently in the United Kingdom.” 


The past events criteria is quite proper, but should relate to whether a claimant is, or has been an insured person within the meaning of Council Regulations 1408/71 and that the United Kingdom remains the Competent State for the award of such benefits. This will equally apply to dependent family members)

18.  The European Commission website states: "The European Commission has decided to take legal action (No, rather to instigate the formal infringement procedure which could lead to the UK being brought before the Court of Justice in respect of the UK’s imposition of the 26 weeks past presence criterion in the previous 52 weeks.) against the United Kingdom for not paying certain benefits"- exportable DLA, attendance allowance and carer's allowance- "to EU citizens residing abroad."

19.  Abroad in this case means within the European Union (and the EEA) or Switzerland.  On 9 October, the Commission addressed a letter of formal notice to the UK authorities. The British Government had two months to respond. That is the first stage of what is called the infringement procedure.

20.  The British Government did reply within two months-just. However, in response to my question asking for sight of that response, the Minister for Pensions and the Ageing Society said: "Correspondence between the European Commission and the member states...on such cases is generally confidential".-[Official Report, 8 December 2009; Vol. 502, c. 249W.] (This by a  Government which claims transparency? When we look closer at this currently adopted position, then all appellants are entitled, as a matter of law, in such cases,  to secure proper disclosure of the nature of the submission and the grounds being relied upon in opposition to their appeal, and within a reasonable time prior to their appeal, in much the same way as the appellant must also disclose his grounds for appeal. Mr. Shaw would do well to study the ‘Tribunals, Courts and Enforcement Act 2007’, especially where there are cases of appeal already scheduled for hearing. Further, merely stating that our Government does consider the past presence test as complying with Community law, as elaborated by Jonathan Shaw, would not be a sufficient statement in itself, since they must also stipulate the reasons for that conclusion. Further, a proper examination of those regulations does not disclose any such grounds for that statement. We do regret that this was not proffered during the debate.) 

12 Jan 2010 : Column 170WH

21  I should like to know why. The infringement proceedings are in the public domain; why is the Government's response not in the public domain?  The clue might be found in the tardy answer, sent on 17 December, from the Prime Minister in response to my oral question to him on 11 November. It took the man in No. 10 more than a month to be able to tell me:  "We have carefully considered the application of the 26 out of 52 weeks 'past presence' requirement and believe it to be compatible with European Community law."  So I guess that is what we said in reply to the Commission. (We suspect that the clue rather lies in the statement by Roger Gale when he said, “Ministers have to do the bidding of their civil servants, the Secretary of State and the Cabinet, and I know that the Cabinet is in turn leant on by the Treasury, which is seeking to save, for blindingly obvious reasons, every penny that is available.” – See para. 28 below.)

22.  Perhaps it is a pity that instead of relying on his hapless junior Minister for advice, the Prime Minister did not read the Commission website for himself. It states:  "British authorities require the claimant to have spent 26 of the previous 52 weeks in the UK...This requirement goes against the European rules coordinating social security benefits and justifies the Commission's decision to start an infringement procedure".

23.  Nothing could be clearer. The Government of the United Kingdom are coldly and deliberately acting outside European law. That fact is confirmed by Jackie Morin, a member of the Commission's staff, in a letter to my constituent John Hamilton dated 3 December 2009.

24.  Quite simply, the Government are in breach of the law and they are disingenuously using weasel words and artifice to try to deny to sick, elderly UK citizens who have served this country-many of them in the armed forces-and who have paid their dues throughout their working lives the money owing to them with many of them still retained as UK income tax payers under ‘Double Taxation Conventions’.)

25.  The situation gets worse. Overnight, I received an e-mail on the matter. Unfortunately, I have not been able to go back to the person who sent it to me to secure consent to name them, so I shall have to hand it to Hansard on the understanding that for the moment their anonymity is protected. The e-mail states: "In June last year (2009) I received a letter from the DWP Debt Collection for what they describe as an overpayment of £3,800 for Carers Allowance...I explained...that I had not left the UK permanently in August 2004" the date to which the attempted reclaim related-  "had sold our property then, rented afterwards, and the pensions department were informed of change of address, and that I had taken permanent residence in France at the beginning of March 2006. The lady I spoke to said she would call me back the following week, but did not...I received no phone call. I have received no correspondence until today.  That was 11 January. The e-mail continued:  "My allowance was stopped at that time"- March 2006- "and my husband, who is 72 years old and had suffered a massive heart attack (leaving his heart working at 70 per cent.), has diabetes, diverticular disease, asthma, arthritis and...mobility problems as a result...was awarded Attendance Allowance for life in 2003. I had to leave my full time job to become a £50 a week full time carer. Today I received a letter stating if I do not repay this amount  £3,800-"by the 19th of this month legal action will commence...we do not have any money, the house we live in belongs to our daughter and we have no savings. We receive £160 per week which includes an allowance for me as a 'wife', and our daughter and son in law help us out financially. We do not even own a car. There is no way we can afford to repay... money, which I believe I do not owe we are waiting for reinstatement of our benefits, which we have pursued since August 2006". (We can confirm that this type of misadministration, through crass incompetence, is now becoming the norm throughout the Government agencies, with the various departments created to address such matters, including the offices of the Ombudsman, finding  themselves swamped with complaints, to the extent that they are overwhelmed beyond the point they are able deal with many of them.)

12 Jan 2010 : Column 171WH

26.  Mr. Atkinson: In the case of my constituent, who comes from Northumberland and moved to Spain a long time ago, when the move took place, he was told that disability living allowance would have to stop and he accepted that as one of the penalties of moving abroad. Then, when he discovered the result of the European judgment and reapplied for the allowance, he was told that he was out of court because of the past presence test; he had not lived in the UK for 26 weeks out of 52. This is a classic Catch-22 situation. He thought he had been deprived of disability living allowance, only to be told that if he was entitled to it, he could not have it because he did not pass the test as he had already moved from the United Kingdom. (No, this really is not a catch 22 situation, since (a) the 26 week past presence in the UK in the previous 52 weeks, does not coordinate with the relevant Articles of Regulation 1408/71 which must be read ‘inter alia’. and (b) in any event all those who had lost their awards prior to the court’s ruling of 18/10/2007, will already have met such a criteria when first being granted their award in the UK. Regrettably another matter was not mentioned and, that is where many have complained that they sought advice, prior to their re-location, and were informed they would be permitted to export their benefit, only to learn after they had re-located that their benefit was to be withdrawn.)

27.  Mr. Gale: I fear that the situation my hon. Friend describes applies in many cases and I shall come in a moment to what I believe may prove to be the Government's fall-back position, because I can see another area of wriggle room developing if we are not careful.

28.  I believe that the Minister is not only an honourable but a decent man. I know him very well as a Kent Member of Parliament, and outside the Chamber as a friend. I also know that Ministers have to do the bidding of their civil servants, the Secretary of State and the Cabinet, and I know that the Cabinet is in turn leant on by the Treasury, which is seeking to save, for blindingly obvious reasons, every penny that is available. However, I hope that the Minister will believe that it is quite wrong of his Department to send out threatening letters to elderly and infirm people, seeking to claw back money that they do not owe; not only that, they are owed money by the United Kingdom Government. (Here we have to express our regret that Mr. Gale did not see fit to respond to our request, to also refer to our government’s recent unlawful withdrawal of the child tax credit from UK State pensioners resident outside the UK, albeit in another relevant State, even where they remain liable to pay UK income tax under the double taxation Conventions, since not only is there a parallel to be drawn with regard to the Governments desperate attempt to claw back money this Government have been wasting in the past decade, but just as importantly the Commission have also opened the infringement procedure with regard to that matter. Whilst this matter comes under the Treasury, for the purposes of that debate, it would have been interesting to learn of Mr. Shaw’s response, especially having regard to Mr. Gale’s statement when referring to our Treasury and about it being ‘blindingly obvious’ about ‘seeking to save every penny that is available’ Especially where later Mr. Harper did open that door with regard to other benefits, other than the benefits at issue. We consider that this was a most significant observation and regard it as a lost opportunity - See para. 69 below and  our observations above under paras. 21, 25 and 26.)

29.  Mr. John Randall (Uxbridge) (Con): I, too, pay tribute to my hon. Friend's doughty crusade on this matter. Has he any idea of the number of people involved and the sums involved? (We cannot see the relevance of this question, since entitlement in this matter is one of Community law and not one of the Governments affordability, when they apply such law with discrimination, although this was then properly addressed by Mr. Gale – See para. 31 below)

30.  Mr. Gale: Information is very hard to come by. The Minister may be able to shed more light; he has access to figures that I do not have. I know roughly the number of appeals that have been lodged. We are probably looking in total at between 2,000 and 3,000 cases across the whole European Union (EEA) and Switzerland. The majority are in France and Spain or Majorca, and there are some in Greece and one or two others dotted around the European Union, but not many. With regard to the sums involved, the Minister is on record, I think, as saying that this situation could lead to a sum rising to £50 million annually. I am not quite sure what the justification for that figure is, so I hope that the Minister will have time to explain to my hon. Friend, the expatriate community and me how those figures are arrived at. (- See our observations above in para. 29.)

……. End of section 1 …….

12 Jan 2010 : Column 171WH—continued

31.  However, that is not really the point, is it? The point is that there is a legal requirement (Here, we believe, that not only those, present at that debate, but also for the Hansard record, should have been properly advised as to the law, both Community Law and the effects of the ECJ ruling) on the Government to pay the money. The point is that we are not dealing with people who have come from overseas to the United Kingdom and claim every benefit known to man, or the kind of people who are reported on the front page of the Daily Express today as using the United Kingdom as a social benefits milch cow by obtaining a national insurance number for future benefit use. We are not talking about people like that. We are talking about people who have devoted their entire working lives to the United Kingdom, who have paid their taxes (And many still do so) paid – Continued. . .

12 Jan 2010 : Column 172WH

 their dues, done everything right, served in the armed forces, given their lives to this country-for this country in some cases-and in retirement have chosen to live somewhere warmer and slightly more comfortable to end their days.  Those are the people we are talking about. Those are the people we are damaging. They are not ciphers or numbers-2,000 or 3,000. I do not care if there is only one of them; they deserve what the law says they are entitled to, and that is what the Government-our Government, my Government, the United Kingdom Government-are denying. I am ashamed of that.

32. I want to hear from the shadow Minister, my hon. Friend the Member for Forest of Dean (Mr. Harper), that a Conservative Government will honour their legal undertaking, and ensure that those people receive the money that is due to them or sadly, in some cases, to their estates. It is open to the Minister, even now, to recognise that the Government have acted shamefully and that they are wrong, and to agree this morning that his Department will pay all the money due to those who have had benefits terminated when leaving the UK, and have subsequently submitted fresh claims from the EU country of their current residence. (When analysing that which Mr. Harper later had to say, it can be seen that during that debate he did not make any clear declaration as to a commitment by a Conservative Government, but rather gave his own views in support of expat disabled citizens. However he did say this; “Once the law is established following the ECJ ruling, it will be incumbent on the Government to implement it as soon as possible so that those who are lawfully entitled to benefits receive their lawful entitlement.” – See para. 56.)

33. I want to clarify one further issue. For the avoidance of doubt or misunderstanding, and to satisfy the claimants and the European Commission, any such payment, which I believe will have to be made, will have to be backdated to the date of termination or of first claim. The Government can either choose to do that honourably and graciously now, or wait for the European Commission's infringement proceedings to take their course, be taken back to the European Court of Justice-during which time more claimants will die-be ruled against, and then fined and forced to pay. (Not only lost accrued arrears with interest, but also damages arising from our government’s misapplication of Community law. – See  ECJ ruling of 28 June 2001 - Gervais Larsy  - Case C-118/00) where in that case the court also ruled such misapplication to be a ‘serious breach of Community law.) I hope that the Government choose to settle.

34. I said earlier that I could see wriggle room appearing if we did not nail the matter down now, and I shall not settle for back payment to the date of the most recent claim. Those payments should not have been terminated when people left the United Kingdom; they were lawful then.To be fair, the Government did not know that they were lawful then and nor did we, which is why so many people did not appeal at the time. We now know, however, that they were lawful; that is what the European Court of Justice said in its ruling. Any payments made will, therefore, have to be backdated to the date of termination or of first claim. The Government have been caught breaking the law, and they have to pay the bill. (See our observations under para. 38.)

9.52 am

35. John Barrett (Edinburgh, West) (LD): I commend the hon. Member for North Thanet (Mr. Gale) on his passionate speech, in which he described many detailed and moving cases. I also congratulate him on his long track record on this matter, and on everything he has said today. He has done more than anyone to highlight what is an all too familiar tale of a Department that is willing to use every trick in the book to avoid meeting its legal and moral obligations.

36. The hon. Gentleman has done an excellent job in framing the issue today, and I do not wish to go over ground that he has already covered. However, it is worth re-emphasising what we are not dealing with – Continued. . . .

12 Jan 2010 : Column 173WH

Here. As he said, this is not a tabloid-friendly tale of people from other European countries arriving in the UK and claiming benefits, as has been reported in some quarters. The men and women affected are from here and have paid their taxes here, but are having their entitlement denied to them when they need it most. As has been said, they are not wealthy people. This cannot be spun as part of a wider Government crackdown on wealthy non-doms; the 2,000 to 3,000 or so people who are affected are generally elderly and manifestly in poor health with advancing disability. They have paid their taxes and national insurance contributions and have earned the right for help with their disabilities. Many of them have moved abroad not out of choice but on medical advice.

37. The reason to move to some place with warmer weather at this time of year should be self-evident-it is tempting for the younger and the able-bodied, let alone for those who have worked all their lives, such as an older couple I know who lived in Scotland. The man had worked for the Ministry of Defence until he retired at 65. (In this case he will also be in receipt of a government pension which can only be taxed in the UK.)When he retired he was living in MOD housing, and he and his wife decided to look around for warmer weather and a reasonably economical place to live; they decided to head for Spain. He had paid his dues all his life and had never asked for a penny, and for the Government now to put so much effort into avoiding their responsibilities to them in this way is shameful. The Government are avoiding those responsibilities, but the job of Government is to provide fair and decent treatment, particularly to the vulnerable and the disabled. (Here we consider that this debate was being unnecessarily drawn out, not only with regard to the failure to address the relevant issues in a proper legal context, but also to the expense of the time allocated for this debate.)

38. When I was a local councillor, I had experience of a local authority trying to deny individuals fair treatment. When elderly people fell in the streets, the first response they would get would be from loss adjusters who would try to put them off and imply that it was their fault. Most people gave up and went away. We have a Government with a track record of denying for years a fair deal to investors in Equitable Life, despite the ruling of the ombudsman. (We find all this to be totally erroneous to the matter under debate and where those party to that debate should have focused on the legal issues upon which the matters at issue pivot.) Today we are dealing with benefits paid for by those who have worked all their lives-many of them never taking a penny. Many of them are ill and some are disabled, and they have gone to live abroad, many for health reasons. They are being denied not something that can be argued about, but an entitlement. The question has been taken up at European Court level. This is an entitlement, not something that is up for debate (Well, that was an accurate statement). The Court has decided: the Government were found guilty (That was not the exact ruling by the ECJ, since their ruling was that the benefits at issue had been wrongly classified and as such had been included into Annex II of Council Regulations 1408/71, which rendered them non-exportable. However, Our government will have been aware of the Friedrich Jauch case of 8 March 2001, case C-215/99 when the Austrian Care allowance had been deemed to be a sickness benefit and further, even in the knowledge of this ruling, our Government fought tooth and nail opposing the Commission, when the Commission sought to have the benefits at issue, properly re-classified as sickness benefits, in order to avoid their responsibilities towards those subject of this current debate) and in the run-up to the election the Minister has a lot of explaining to do.

39. The European Court of Justice ruling on 18 October 2007 was very clear. It said (Its effect was.) that those eligible and in receipt of the care component of DLA, attendance allowance and carer's allowance should be able to continue to receive those benefits when they leave the UK. That was because they were classed as "sickness cash benefits" under EU law. That ought to have been the final word on the issue, and the Government should have accepted the ruling and paid out the benefits. Instead, it seems that the ruling itself has been warped by the Department to create yet another loophole. (Not so much a loophole, but rather an attempt to circumvent Community law, when refusing to acknowledge the proper effects of the Ruling of the Court of Justice, but just as importantly the affect the ruling had on Community regulations.)

40. We are now in the farcical position whereby claimants cannot have their benefits reinstated if they had them removed before the European Court of Justice ruling, - Continued. . .  

12 Jan 2010 : Column 174WH

because the Government will not admit that their decision to remove benefits before then was wrong. The ruling by the European Court was that people should be entitled to receive those benefits. People who had their benefits removed by the Government before the date of the ruling should have them reinstated immediately, with backdating and a full apology. Instead, they are told that unless they appealed within 13 months of losing their benefit, they have no grounds for their benefit to be reinstated. (Put in its proper context this is not strictly accurate, since subject to certain specified derogations, Part 4 of the ‘Tribunals, Courts and Enforcement Act 2007’, which sets out the Tribunals rules for appeal, do allow a review of an earlier disallowed appeal.) Essentially, if they took the Department for Work and Pensions at its word and made the mistake of assuming that the Government would act within EU law, they would miss out. Not only that, but when someone writes to the Government to request that their benefit be reinstated they have to meet the eligibility criteria of having been resident in the UK for at least 26 weeks out of the past 52. The very fact that their benefits were removed, means that they are already living abroad, so there is little prospect of meeting that criteria at any time.

41. If I have misunderstood the situation, I invite the Minister to clarify it, but it seems as if every possible effort has been made to construct artificial loopholes and roll after roll of red tape to keep vulnerable people from receiving the help to which they are entitled. I agree with the hon. Member for North Thanet that the Minister is a decent individual, but he is trying to defend the indefensible. It seems that Ministers have been making up the rules as they go along, and that is quite deplorable behaviour. (See our observations at para. 48 of our Forward to this debate.)

42. In the Minister's winding-up speech, we need to hear that this shameful saga will not be allowed to drag on into the next Parliament, although I doubt he will have much say in that matter. It is an embarrassment that the European Commission has seen no other option but to take the UK Government to court (we have not arrived at that stage yet.)to try to force us to meet our obligations. I appeal to the Minister to save the time, expense and embarrassment of battling another court case, and to instead announce today that the benefits will be reinstated without further argument or details hidden in the small print. I would also like a firm answer on how many people stand to be affected, and how much this will cost the Government-how much money the Government have withheld from them so far. I would not be at all surprised if the money spent fighting a legal battle in the European Court of Justice, and now fighting the Commission, was not too different a sum from that being held back from UK citizens.

43. Will the Minister also publish a copy of the Government's response to the Commission's letter of 9 October 2009, giving formal notice of legal proceedings? The Government have refused to make the letter public, citing confidentiality (As a matter of a fundamental principle of law, all appellants have a lawful right to disclosure of all or any grounds put forward by those who oppose their appeal) . Frankly, it is not a matter of national security. (See our observations under para.20 above.) Those people-possibly thousands-missing money that is rightfully theirs deserve to know whether the Government are still attempting to wriggle out of their obligations. The Government have so often professed to be interested in fairness; it ought to be a matter of shame for Labour Members here today that the matter has still not been resolved.

44. People on low incomes who depend on such benefits to make ends meet do not have time for endless pontification from the DWP. As we heard this morning, some who have fought the battle have lost not only the battle but, in the meantime, their lives. I hope that today's debate will have pressed home to the Minister how far there is

12 Jan 2010 : Column 175WH

to go before fairness is delivered to those people. I cannot help but feel that if the time and energy spent by civil servants and the Government in devising ways to avoid their obligations had been invested in finding a fair solution, we would not be debating the issue today. I hope that this is the last time that we do so.

10.1 am

45. Mr. Mark Harper (Forest of Dean) (Con): It is a pleasure to serve under your chairmanship, Mrs. Humble. I know that you take a great interest in matters relating to the Department for Work and Pensions, given the nature of your constituency. I congratulate my hon. Friend the Member for North Thanet (Mr. Gale), who has been a long-standing campaigner on this subject. He demonstrated his usual doughty fighting spirit on behalf of all who depend on Members of the House to speak for them.

46. I shall mention, as did my hon. Friend the Member for North Thanet, the UK/EU Disability and Carers Group, a group of those affected by this problem. I mention it for the Minister's benefit. It e-mailed me late last year, saying that no member of the group at the time-more than 100 people-had received the legal reinstatement of their disability living allowance or even had the opportunity to have their case heard by the Tribunals Service. That brings me to a point made by my hon. Friend. Even once the law was established, it seems that the Government did not move with appropriate speed. I shall say a little more about that later. (See our observations under para. 20 above.)

47. It is worth setting out a little of the background-I shall try not to repeat what was said by my hon. Friend-and saying something about the benefits. I shall also ask the Minister about the thinking behind the Government's stance. The three benefits are the care component of the disability living allowance-the mobility component is not included in the European Court of Justice ruling of 18 October 2007-the attendance allowance and the carer's allowance. The Court decided that those benefits should be removed from the list of non-exportable special non-contributory cash benefits, but should be classed instead as sickness benefits and therefore paid, as my hon. Friend said, to those who live elsewhere in the European economic area or Switzerland.

48. I shall give the House an idea of the scale involved. Slightly more than 3 million people in the United Kingdom receive the care component of DLA, less than 1.6 million receive attendance allowance, and about 500,000 people receive carer's allowance. I mention that because I shall be asking the Minister to give us an idea of the number affected by the ruling and the Department's estimate of how many might be affected in future. I shall give an example: in 2008-09, about £4.7 billion was spent on attendance allowance for the 1.6 million who received it; it is a significant sum.

49. To put matters into context, it would be interesting to hear from the Minister how much is involved in the present case. My hon. Friend said that a parliamentary answer gave an estimate of £50 million. That is a large sum, but it pales into insignificance when put next to the total amount of benefits paid. I shall have some specific questions on that aspect for the Minister.

50. It is worth spending a brief moment to consider the chronology of this case, as it is one reason why those overseas who are affected are so agitated. They may think that things are clear after the ECJ ruling, but they – Continued. . .

12 Jan 2010 : Column 176WH

believe that the Government have moved at a slow pace. My hon. Friend set that out well. However, the Government have not only moved a slow pace but have looked for every opportunity to delay making a decision.

51. The ECJ judgment was delivered on 18 October 2007. The Government responded reasonably quickly with a written statement to Parliament, saying that they would carefully consider the implications of that judgment. Within a week, one could not expect them to say anything else. In December, two months later, we heard only that the disability and carers service was "preparing guidance", and would give full details of eligibility criteria in April. Not an awful lot had happened, especially given what we had been told publicly, in two months.

52. At the beginning of April 2008, five months after the ECJ judgment, Parliament received a third written statement. Again, we were told that details would be set out on the website, and that officials were continuing their discussions with the European Commission. We still had to wait. Even five months after the decision, the Government were still not able to set out the eligibility criteria, either for those who had been claiming the benefits before moving abroad or those who lived abroad and were claiming for the first time. Later that month, the criteria were eventually published.(Which criteria, since it was not the later invented 26/52 weeks past presence criteria, since that was not published until late February 2009?)

53. In December 2008, more than a year after the ECJ judgment, the Government admitted that they had received 1,700 requests for payment of DLA, attendance allowance or carer's allowance from people who had previously lived in the UK. That information was gained in response to a question from my hon. Friend, who has been questioning the Government on the matter for some time. In January 2009, my hon. Friend followed up that question, asking the Minister how many of those 1,700 had been settled. He was told that the implications were still being considered. (We can advise Mr. Harper that we were advised by the Commission in writing vide their letter of 17 June 2008, that one of the UK’s Government’s reasons for the delay in implementing the ruling by the ECJ was, ‘there are a large number of cases to be dealt with’?)

54. Later that month, again in response to a written question, the Minister said that the Government had set out their estimate of the increased case load and expenditure due to the ECJ ruling. He said that in 2010-11 they expected that the case load would reach 20,000 people at an annual cost of £50 million. That was assumed to be the first full year following full implementation of the judgment. That estimate is broken down into £30 million for DLA, £10 million for attendance allowance and £10 million for carer’s allowance. I am not clear, however, whether that is for those who were claiming benefits before leaving the UK or whether it includes those living abroad who were claiming for the first time. That estimate gives no indication of whether the Government expect those numbers to change.

55. John Barrett: Does the hon. Gentleman agree that the matter would be helped along if the DWP were to speak to the Department of Health on the matter? Considering the cost of claims to be a matter exclusively for the DWP would be to look at only part of the picture. Many who go abroad are not using GPs or health workers; they are not using NHS services, which has an impact on the Government's budgeting. The cost of claims may be a matter for the DWP, but the costs to the NHS would dwarf that figure.

56. Mr. Harper: The hon. Gentleman makes a good point. I am dwelling on the cost because it is our view that once the law is clear, the Government should move – Continued. . .

12 Jan 2010 : Column 177WH

quickly to implement it. The Minister will doubtless be able to make clear the reason for the use of the past presence rule (No, Jonathan Shaw did not even attempt to justify that rule, since he could not defend it.) to limit the number claiming for the first time from abroad. I presume it is because an estimate has been made of the potential number, and that that number is significant. I am simply trying to get a handle on what that might be.

57. Mr. Gale: My hon. Friend cites a figure of 20,000 claims. It is the first time that I have heard that figure. It is a phenomenal increase on the 3,000 that we believe are in the system now. Where on earth are these figures coming from? We ought to know that, too. (Indeed, since that figure bears very little relationship to the true projected figures, which, based upon feed-back from our members, could more reasonably be put at circa. 2,000+ claims, adding the odd nought to that figure merely serves to identify the levels to which our Government are prepared to stoop.)

58. Mr. Harper: The straightforward answer from my point of view is that they come from a written answer; the Minister can tell us where the numbers come from. It is difficult to reach a total. The estimated case load for disability living allowance is 20,000, but in an excellent piece of Government speak, (The language of ‘Ingsoc’ - I.P.Pavlov – ‘double think’) no numbers are given for attendance allowance and carer's allowance because they equal less than 5,000 and therefore equal zero when rounded to the nearest 10,000-[Official Report, 28 January 2009; Vol. 487, c. 563W.]

59. Only someone in government could, on seeing that 5,000 people were entitled to something, round the figure down to zero, but that is what we are told has happened. To put the figures in context, the £50 million estimated expenditure is about 0.1 per cent. of the total spent on such benefits, while the number of people affected is about 0.4 per cent. of the number on such benefits. Those numbers do not seem that dramatic or significant, given the Department's estimates for the growth of disability living allowance, attendance allowance and carer's allowance over time. I do not understand why the Government are working so hard to limit the number of claims, and I would be grateful if the Minister filled us in on that.

60. At the end of February 2009, a month after the Minister answered that question, we had the fourth written statement to Parliament. That was 10 months after the previous one and one year and four months after the original judgment. On a Government website, Ministers finally published details of the eligibility criteria for those who were not claiming disability benefits when they left the UK, but who wished to claim them when they moved abroad.

61. In a parliamentary written answer, the Government stated that the past presence test had been modified for those claiming from another EEA state so that they had to have been in Great Britain for not less than 26 of the previous 52 weeks. The Government also said that the test would be applied only once, on the date on which the entitlement to benefit was established. In other words, someone who claimed more than six months after having moved abroad would not be eligible for benefits. It would be helpful if the Minister told us how many people living abroad would be eligible for such benefits if the past presence test was not in place and what estimates the Department has made of the number who will be eligible over time. The Department must have done some thinking about that when deciding on its implementation of the ECJ ruling.

12 Jan 2010 : Column 178WH

62. In June last year-these things move very slowly-the Government said that they had had 2,100 requests for payment or reinstatement of awards from people living in EEA states. At that point, decisions had been made on 1,100 requests, with 1,000 pending a decision. For the benefit of hon. Members, will the Minister give us the latest information on how many requests for payment of benefits have been received and how many have been processed and had a decision made on them? Of those on which a decision has been made, how many have resulted in a benefit being awarded? In other words, how many requests for benefit have been successful? (Our feed-back to-date has only revealed one re-instatement in respect of where the claimant had left the UK before the ECJ ruling and rather disturbingly the claim was made on their behalf by a senior Government employee, using their ‘Office’ when re-securing the earlier awarded benefit. This opinion is qualified by stating, that there may have been other such cases, about which we have not been made aware, and we also exclude those more recent successful appeals which had been pending appeal, before the recent judgement by the Court of Justice. In this matter we only have the Ministers statement to rely upon, since he refers to those who had re-located before the judgement, as being a group of citizens not entitled to reinstatement of their earlier lost benefit and even this statement does not coordinate with the DWP’s own policy.)

63. There is another disappointing aspect to the lack of dispatch in the Department's approach. In June last year, the Government said that 1,400 people who lived abroad were in receipt of benefits, (This figure does not correlate with this current matter, since benefit will also relate to other benefits, not least long term incapacity sickness benefit which is, and already was exportable) but that the DWP had only "started to process" claims for DLA from other states following the statement on 24 February (2009). It therefore took a year and four months after the ECJ ruling for the DWP to start processing claims. Given that we are talking largely about disabled and elderly claimants living abroad, such a period can be significant.

64. The issue has obviously attracted great interest. There has been an e-petition on the No. 10 website, the media have given the subject a lot of coverage, and colleagues such as my hon. Friend the Member for North Thanet have raised the issue in Parliament. As he said, the Prime Minister wrote to him saying that the 26 out of 52 weeks past presence rule was – Continued. . .

……. End of section 2 …….

12 Jan 2010 : Column 178WH—continued

"compatible with European Community law".

65. I have been through the ECJ judgment carefully-it is not riveting reading-and it would be helpful if the Minister set out why the Department thinks that the past presence test is compatible with the ruling (Here one must also look at Article 10 and 22 of Council Regulations 1408/72, which must be read in inter alia with the ECJ ruling), given that the European Commission does not think so and has indicated to the Department that it intends to introduce infringement proceedings. (At this time the infringement procedure had already been opened by the Commission.)

66. On the issue of openness and transparency, I can understand why the Minister does not want to share specific correspondence, (See our observation at para. 21 above) but given the information that has not been provided to the House-my hon. Friend drew attention to it-it is disappointing to see what is available on the European Commission website. There, the Commission clearly sets out that it is taking legal action against the UK for not paying benefits and that it "addressed a Letter of Formal Notice to the UK authorities. The British authorities have two months to respond", as my hon. Friend said. Again, the Department took the full two months, so it did not exactly act with all due speed. (This delay merely serves to further identify our Governments deliberate policy of procrastination, since they will know they are in serious breach of Community law.) The Commission then sets out the benefits and the ECJ ruling. It also says that the past presence test "goes against the European rules (Articles 10 and 22 of 1408/71) coordinating social security benefits and justifies the Commission's decision to start an infringement procedure."

67.  We can get all that information from the Commission website, but when we ask Ministers to set out the discussions that they have had and the position that they have taken, we get rather less information  (Considerably less). This is not something that I thought that I would say, or that we hear often in the House, but the European Commission is being more open and transparent than the British Government, and the Minister should rectify that.

68. I have asked the Minister to set out the number of claimants abroad. Just to be clear, will he tell us what estimate the Government have made of the predicted – Continued. . .

12 Jan 2010 : Column 179WH

case load and expenditure for existing claimants who move abroad, claimants who already live abroad and both sets of claimants combined? The Minister has talked about 2010-11, which is assumed to be the first full year for implementation of the ruling, but what does full implementation actually mean and why has it taken two years to reach this stage?

69. It is worth making one final point, which my hon. Friend and the hon. Member for Edinburgh, West (John Barrett), who speaks for the Liberal Democrats, have touched on. One reason why the issue has attracted attention and annoyed some of those living abroad is that the same European Union rules that say that British citizens who lived here all their lives, paid taxes, contributed, worked and then moved abroad should get the benefits under discussion, also say that people who come here from other European countries are entitled to other benefits. We read all the time in the papers-the stories are not made up, but are backed by parliamentary answers-about people who have come to the UK from other European countries and have not worked here or paid taxes, but who, under EU rules (This is not strictly accurate, since their rights, as non-UK insured citizens from another relevant State, and where they are not migrant workers, will only come to them under current UK legislation where it applies only a residence qualification. That is a matter for the UK only, otherwise they will gain their entitlement from the other State’s institutions where they have contributed under the legislation of that other State, which will normally be the Competent State for the issue of certain benefits.) can claim benefits for themselves and their children. People find that extraordinary. We hear stories about Polish workers coming to the UK who can claim child benefit for their children, when their children do not even live here, but in Poland. (We regret that Mr. Harper felt that he had to introduce this irrelevant matter of the rights of migrant workers coming to work in the UK, since these workers also acquire rights under UK domestic and Community law, as do British migrant when taking up employment and sometimes merely residence,  in other relevant States. He was therefore quite rightly rebuked by Jonathan Shaw  - See paras. 28 above and 105 below.) 

70. The Government never seem to look for clever loopholes to avoid paying such people, who never seem to have any trouble claiming benefits. I do not suggest that they should not get those benefits-under EU rules, (Having regard to our observations in the above para. the meaning of this is not clear.) these things work in both directions-but it is strange that the Government have looked for every opportunity to deny money to those who have worked here, paid their taxes and gone abroad. Ministers never seem to make similar efforts with those who come to this country, and I am not saying that they should, but there is a disparity. People who come to this country never seem to have any trouble claiming money when they have not contributed. [Interruption.] It is all very well the Minister sighing, but that sort of thing enables people who are against our membership of the EU to score an easy hit. It also enables those who represent, shall we say, somewhat less democratic parties in this country to stir up all sorts of feeling against those who come here from other European countries. As everyone who has spoken has made clear, people are looking for fairness-they want people to be treated fairly. (Here we can understand the Minister’s interruption, since here Mr. Harper would appear to be referring to cross border workers, who are indeed, contributing to the UK’s social security scheme. Further, we consider that such sentiments had no place in that debate.)

71. Once the law is established following the ECJ ruling, it will be incumbent on the   Government to implement it as soon as possible so that those who are lawfully entitled to benefits receive their lawful entitlement. On the basis of what I have said and what my hon. Friend so ably said in opening the debate, it is clear that the Government have not moved with due speed. At each stage, they appear to have taken the maximum time available to them and tested every deadline. That is not how the Government should behave, particularly when many of the British citizens involved are elderly and disabled, and when every month really matters. (See our observations under para. 32 above.)

72.  In his response, I hope that the Minister will answer the questions raised by my hon. Friend and other hon. Members who have spoken in this debate, and that he will move to resolve the issues surrounding the past presence test and its lawfulness, or otherwise, and implement the settled law with all possible speed.

12 Jan 2010 : Column 180WH

10.20 am

73. The Parliamentary Under-Secretary of State for Work and Pensions (Jonathan Shaw): It is a pleasure to serve under your chairmanship, Mrs. Humble. As other hon. Members have noted, you take a personal interest in matters relating to the Department for Work and Pensions.

74. I begin by paying tribute to the hon. Member for North Thanet (Mr. Gale), who has been pursuing this issue for a long time. He and I have had meetings and he acts in his own doughty way but always in a manner of reasonableness, as the hon. Member for Forest of Dean (Mr. Harper) said. The hon. Member for North Thanet expresses his views in a forthright way, and I appreciate the manner in which he has presented his case, not only during this debate but during our meetings in the Department.

75. The starting point is the judgment by the European Court of Justice in October 2007, and I want to explain what that meant. In case C-299/05, the Court decided that certain benefits belonging to Finland, Sweden and the United Kingdom should not be classified as special non-contributory benefits under European law, but should instead be classified as sickness benefits. That change in classification for the UK mainly affected disability benefits-the disability living allowance care component, attendance allowance and carer's allowance, which have been referred to.(No, the court did not make that decision. The decision they did make, when upholding the single plea of the Commission, which was one of including those relevant benefits as special, non exportable, benefits into Annex II (a) of Council Regulations 1408/71 ‘was vitiated by an error at law.’ Mr. Shaw should go back and actually look at that judgement, in so far as it related to the DLA ‘care’ element, AA and CA where it sets out; ‘On those grounds, the Court (Second Chamber) hereby:

Maintains the effects of the inclusion of the Disability Living Allowance under the heading ‘UNITED KINGDOM’, (d), of Annex IIa to Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self‑employed persons and to members of their families moving within the Community, in the version amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation No 647/2005, as regards solely the ‘mobility’ part of that allowance so that, within a reasonable period, appropriate measures can be taken to include it in that annex;

Here it may be seen that in respect of Annex II(a) version of Council Regulations (EC) 118/97 of 2 December 1996, as amended by Regulation 647/2005 that the Court determined that only the mobility’ element “could lawfully” be included in that Annex II(a).

76. The relevant legislation is EC regulation 1408/71, which co-ordinates social security systems in the European Economic Area, and provides rights for workers and people who used to work and, in certain circumstances, their family members. (Those Regulations in fact do include their dependent family members.)  Not all people who are eligible to receive benefits in the UK can export them if they leave the country. For instance, someone who resides in the UK can claim DLA without having a national insurance contribution record. When they leave the country, however, the UK is no longer responsible for paying them and they are not covered by the regulation. (This statement is factually most incorrect. – See Article 10a (4) of 1408/71, as where such a benefit is awarded by a Member State based upon a residential qualification, then that residence qualification extends to include residence in another Member State. Also a citizen may still be regarded as an insured person even where they have made no contributions, where they are incapacitated and where they will be credited with NI contributions.)  Each member state is free to decide who is entitled to be insured under its legislation, (No, it is not, since such a determination must comply with Community law) which benefits are to be granted and under what conditions, (Again this is essentially an inaccurate statement, since the Member State must also observe the overriding principles of Community law) and how those benefits are calculated. Any such decisions are, of course, subject to challenge from individuals or the European Commission. (This is correct, but nevertheless, the Member State must also recognise their obligations to properly assist appellants when they do so. Further, the misapplication of Community law constitutes a serious breach of Community law. It is not good enough for an institution of a Member State to merely say, “If you don’t like it then appeal.” – See ECJ case of  28 June 2001. - Gervais Larsy v Institut national d'assurances sociales pour travailleurs indépendants (INASTI.  Case, C-118/00, as set out in our Forward at paras. 31 to 33.  We should also add that this was one of two separate case law forwarded to us by the Commission following our many exchanges with them in this matter.

77. When people are covered by the regulation and wish to export their benefit, they are no longer required to meet normal residence and presence conditions although they are still required to meet other conditions of entitlement under domestic legislation. In the UK, That is not an accurate statement since whilst applying their own domestic legislation, the Member State must also observe the principles of ‘primacy’ of Community law. that includes a past presence test, whereby an individual is required to have been present in the UK for 26  of the previous 52 weeks, on each day of the award of benefit. For people wishing to export their benefit we have modified that condition so that it is applied only on a single date, on which other conditions of entitlement can be established. (Enough observations have already been made with regard to this non-coordinating requirement)

78. The unmodified test is not new-it has always been part of the conditions of entitlement that all customers are required to meet. (That may have been so, but that does not make it lawful within the meaning of Community law and that is now under challenge by the Commission.) Unlike the state pension, (This does not make that test compatible with Community law for example, disability benefits are not paid because relevant national insurance contributions have been made. (That is purely a domestic matter, but where an insured person, and dependent family members, take up residence in another relevant State, then Community law is triggered) They are not means-tested and are paid out of general UK taxation.(That statement is erroneous to the present matter.) The purpose of the past presence test is to establish a connection with the UK that is appropriate and proportionate. (Without going in too deeply in this matter, all those claimants we represent, had already established their past presence criteria, either as residents or as insured citizens   in accordance with Community law.)

79. The hon. Member for North Thanet said that we have failed to comply with the Court's decision. However, since the judgment, more than 1,700 people who have  - Continued. . .

12 Jan 2010 : Column 181WH

left the UK for another EEA state have been able to export their benefit. They are currently being paid while resident abroad, as long as they meet the eligibility criteria for payment. The hon. Gentleman represents a campaign group of people who previously received benefits, but who moved abroad before the date of the judgment and consequently lost them. (Here Mr. Shaw displays a complete lack of understanding, not only of Community law, but the proper effects of that ruling by the ECJ on 18.10.2007) As noted by the hon. Member for Hexham (Mr. Atkinson), who is no longer in the Chamber, when those people moved abroad they would have known that their benefits would cease, and would presumably have taken that into account when making their decision to leave the UK.(This was a most shameful and totally erroneous response, especially where many of those now seeking recovery of their wrongfully withdrawn benefit re-located so as to improve their quality of life having regard to their disability) Automatically to reinstate benefits to that group of people could be contrary to both domestic and European law. (Here we have to suffer an absolute load of rubbish from a career member of parliament, who purports to be a Minister, especially since most of those who have sought our help were awarded their benefit for life. Does Mr. Shaw still not understand that the infringement procedure was opened because the Commission consider our Government is in breach of that very law to which Mr. Shaw refers? It would seem not) Apart from ensuring that customers satisfy all relevant domestic requirements, including whether they need help in looking after themselves or caring for others, they also need to satisfy European law on sickness benefits. (A most ‘ill’ founded statement having regard to the current circumstances.)

Mr. Harper rose-

80  Jonathan Shaw: If I can make my point, I will come to the issue that the hon. Gentleman has referred to.

81. We know that some customers may have worked in their country of residence. Once that happens, even if they have now stopped work, they are no longer the responsibility of the UK for payment of sickness benefits, (Mr. Shaw now to strays from the matters at issue, as those we represent are not migrant workers as such and  within the meaning of Council Regulations 1408/71, and even where they may have worked in another relevant State, they may not have worked long enough to qualify for benefits in that other State and until they do then the  UK will remain the Competent State for the payment of benefit.  He will also know that his department have rejected claims for reinstatement out of hand and further, none of our members have been asked as to whether they are, or have been gainfully employed in Spain. Also the UK will remain the Competent State for certain benefits, including accidents at work where the circumstances which gave rise to the claim/award occurred in the UK.)  and they will need to claim sickness benefits from their new state of residence. People in the UK can receive a disability benefit, even if they have no income at all. However, under European law relating to sickness benefits, in order to be eligible for payment a person needs to be in receipt of a state pension, or a long-term benefit such as incapacity benefit, or to have paid recent national insurance contributions. (This is all absolute rubbish and is not worthy of our comment.)

82. People who moved abroad before the judgment and lost their benefits-such as the constituents referred to by the hon. Member for North Thanet-have written to the Department to ask the Secretary of State to reconsider the disallowance decision, and we have looked carefully at all the available options. We can revise a decision when we have made an official error. The definition of an error specifically "excludes any error of law which is shown to have been an error by virtue of a subsequent decision of a Commission or the court." (No, it certainly does not, since Mr. Shaw is attempting to rely upon Article 27 of the Social Security Act 1998,since Judge John Mesher, when ruling on a case involving DLA, then under appeal in the Upper Chamber of the Independent Appeals Tribunal Service, case CDLA/2078/2005. Had this to say, “I note also that the ruling of the ECJ in Case C-299/05 cannot be a "relevant determination" for the purposes of section 27 of the Social Security Act. 1998 and its restrictions on the effect of "test cases" in relation to past periods. Of course it cannot.)

83. When we decided to disallow benefit when people moved abroad, the decision was made under relevant legislation that was appropriate prior to the decision by the European Court of Justice.
(Yes, but only because the benefits at issue had been wrongly classified as ‘special’ non-contributory benefits and as such were wrongly included into the Annex IIa of the relevant regulations and at the request of the UK, I might add.
 People reclaiming benefits they received in the past must therefore not have worked in their state of residence, (That is rubbish for the reasons we have set out in para. 81 of the debate.) must be receiving a long-term contributory benefit such as incapacity benefit or state pension, or must have made recent national insurance contributions. (This does not coordinate with Council Regulations 1408/71.)They must also satisfy relevant domestic conditions of entitlement.(Yes, such conditions must, of necessity be the circumstances which give rise to the claim for an award.)

84. As I noted earlier, we consider the past presence test to be a necessary condition of entitlement to a non-contributory benefit, (The benefits at issue are sickness benefits) as it establishes a recent link to the UK. (Community law excludes any such recent linking.) However, we recognise that people abroad who have not left the UK recently will not be able to qualify. (Regrettably the introduction to this debate was unnecessarily too lengthy and drawn at the expense of the debate and here we see where Jonathan Shaw has, in effect taken over that debate and is now employment his own delaying tactics, with repetition, so as to avoid any opportunity of any response in rebuttal.

Mr. Gale rose-

12 Jan 2010 : Column 182WH

85. Jonathan Shaw: Let me make this point as it is relevant to a question raised by the hon. Gentleman.  There are exceptions to the situation that I have outlined, and they include cases when people are terminally ill. When we announced the criteria for payment of the disability living allowance care component and attendance allowance for people claiming from abroad, we made it clear that people in such circumstances would not have to satisfy the 26-weeks past presence requirement. (One of our members, a young man with 2 young children, was indeed diagnosed as terminally ill with cancer, but despite many pleadings from us and from our member, the DWP held out against accepting his as a ‘special case’, since although his doctor knew he was soon to die, she refused to put such a limited time scale of 6 months on her prognosis. Sadly our young member has since died of his disease. Which was in fact within the final 6 months time scale, when his claim for reinstatement was finally rejected.. Further this member had only gone to Spain to seek treatment for his disease, which was then not available to him under the NHS , which was also his right under Article 22(1)(c) of 1408/71 – Thank you Jonathan Shaw and all that you have declared about your concern for the disabled!)

86. The hon. Gentleman referred to an e-mail that he received on 11 January and the case of people who were asked to pay back around £3,000. I cannot answer in detail about that specific issue now, but I would be happy to look into the case and consider it carefully.(This is but one of the so many instances of failure by misadministration, to properly recognise the rights of British disabled citizens.)

87. We are paying benefits, including state pensions, (These pensions are being paid to  recipients based upon the pension contributions they have made as employed, or self employed, including voluntary contributions, or have been credited with such contributions  in the UK?)  to many thousands of expatriates abroad. (Absolutely irrelevant. What is he on about.) Most of our expatriates in the EEA live in Spain, and over the last year Ministers and senior officials have visited Spain to meet them and their representatives. (Your Association was not invited to meet them. I wonder why not?) They have demonstrated a genuine interest and concern in the lives of British nationals overseas. We are aware that UK nationals may experience difficulties abroad, and we want to help where we can. Since May 2007, my Department has supplied a team of six staff based in Alicante, Malaga and Madrid to provide customer service to support UK nationals living in Spain. (This statement by Jonathan Shaw was a deviation from the real facts, in the context in which he made it, since where he refers to the  DWP representatives based in Spain to ‘provide customer services to support UK nationals...’ Whilst there are indeed, such representatives here and your Association has had much dealings with them and although we have found them to be extremely dedicated in their work, however, in this present matter they have been helpless, since they can only pay lip service to their masters at Westminster.)

88.Mr. Harper: The reason why I tried to intervene earlier was to ask the Minister about the Court ruling. I have two questions: first, I think that the Minister said that if the Department were to reinstate benefits from the time the relevant people moved abroad, or from when they lost them on moving abroad, it would in some way breach European or domestic law. I am not quite certain which aspect of law would be breached. (It will be seen from that set out below, that Jonathan Shaw did not disappoint us when he failed to answer that question and just as regrettable there was then no time left to push him on this.)

89. Secondly, what is the Government's view of the ECJ ruling? Did it change European law or simply set out what European law had been all the time? (The simple answer to this question was that the court corrected a previous error at law when the benefits at issue had been wrongly classified as ‘special non contributory benefits and as such, Community law did not demand their export. 

Mr. Harper then had Jonathan Shaw cornered, but, and It can be seen from his response, Mr. Shaw dodged the question and wandered off into the tall grass with the erroneous nonsense about the DWP team in Spain, where he set out, “The team is approached on occasion by customers who are priority cases in difficult welfare and health care situations, and who need quick intervention.” We can advise Jonathan Shaw that we do have liaison with this service here and did indeed, approach one such team in respect of the very disturbing plight of the late Mrs. Ann Hamilton-King, who was attempting to survive on her State ‘old age’ pension of just £27 a week. She was suffering with acute emphysema, necessitating her being on a constant oxygen supply in her home, which she could not leave. She was also suffering from heart disease and the effects of a recent stroke. This lady was also one of the victims of, what has now become known as the DLA scandal. There was absolutely no financial or other help forthcoming for this lady, we had to secure that. However, she resolved Jonathan Shaw’s problem and she resolved the problem by dying when in abject poverty.  We do not attack those employed here in Spain by the DWP, but rather their paymasters in London, since their representatives have to work within the remit of the directions they are given and in this case it meant that there was no help for this lady from our government.)  

90. Jonathan Shaw: I shall answer those points in my speech. (To which speech is he referring, since this was a debate?)

91. As I was saying before the hon. Gentleman intervened, we are providing staff. We have a presence, and are working with the Spanish authorities. That is in contrast to the characterisation the hon. Gentleman attempted to give of our interest in British people living overseas. The team on the ground offers up-to-date and accurate information on entitlements; it liaises with the Spanish authorities to resolve the most complex cases; and it also works closely with and improves co-operation with the Spanish benefits agency-the National Institute of Social Security. The team is approached on occasion by customers who are priority cases in difficult welfare and health care situations, and who need quick intervention. Recent cases have included dealing with terminally ill customers requiring medical cost advice, and giving support to vulnerable customers when benefits have not been claimed. (-See our observations under para. 89 of this debate. We would wish to learn about such intervention, especially as we have regular contact with these representatives? Many of those who are now being unlawfully refused their right to reinstatement of wrongfully withdrawn benefits, cannot even hope to receive any assistance with regard to that matter from those representatives based in Spain.  No, your liaison with the Spanish authorities does not contrast with the characterisation, you suggest Roger Gale was attempting to give, since Mr. Gale was quite properly addressing the matter of the relevant benefits and the failure by our government to recognise the proper effects of a ruling by the ECJ.)

92. People who cannot receive a benefit from the UK may be able to receive a benefit or service from their new state of residence. If they are integrated (What was Jonathan Shaw attempting to say here? What does he mean by integrated? Since that is no basis for the award of benefits in Spain.  Even benefits in kind are only available in Spain under very rare circumstances and even then such benefits do not detract from a claimants right to an award for any of the benefits at issue.) in their new community and satisfy relevant conditions they may be able to receive benefit and assistance from social services, just like people who come to the UK. In fact, we know that people can and do receive help. For – Continued. . . .

12 Jan 2010 : Column 183WH

example, there are messages on various websites. One person who left the UK in 2004 recounts that she had three strokes and has "received excellent treatment in France". She writes on the website: "I received a letter telling me I am considered 80% or more disabled and will receive an allowance which will pay for a home help. My husband will also get an allowance for helping me in the house with washing, dressing etc." (This person will, no doubt be below a certain income level and will come within the meaning of France’s CMU (Couverture Maladie Universelle) rules, whereby this lady will probably be entitled to receive 100% support for illness. Such cases cannot be used to draw any proper comparison, when the overwhelming majority of British EU citizens reside in Spain, and where health care entitlement rules are far more stringent and restrictive. Therefore they should not be confused with the present claimant’s entitlement to DLA etc., especially where each Member State applies different rules of entitlement and in this case such allowances are not available in Spain benefits. In any event Community law addresses not only the matter of benefits in kind, which do not interrupt the payments of the benefits at issue, but also there are rules in respect of overlapping. Rather than to offer to send Members of the House the relevant Community law, we considered that he would do better by studying this law himself.)

93. She goes on to say that although she is happy with the help she gets in France she feels bitter that she cannot get help from the UK (Are you surprised Jonathan Shaw?), as she and her husband paid into the system all their working lives.

94. I am pleased that lady is receiving the help she requires. As Minister for disabled people I strongly support the provision of services for disabled people, but the imposition of conditions such as the past presence test is compatible with regulation 1408/71.(This latter statement was incompatible with his former.)  If the hon. Member for Forest of Dean wishes, I shall send him details of the regulation. (Save yourself the effort Mr.Shaw as we shall be doing that by sending those regulations about which you appear to have little or no understanding.)  Conditions of entitlement under domestic legislation must be taken into consideration. (Yes, that is correct, but only provided they do not run contrary to the primacy of Community law and the principles of the right of free movement, as enshrined in the Article 18 of the EC Treaty. Also Jonathan Shaw was refusing to properly address the matter where this debate was about the rights of those who have already met any past presence criterion. Here we do not refer to the unlawful 26 weeks in the previous 52 weeks, but rather where these claimants had already secured their right, in proper accordance with both domestic law and Community law, at the time of being granted their benefit, and where the United Kingdom has remained the Competent State for the purposes of granting of the relevant benefits.)

95. The European Commission has indeed written to us to start infringement proceedings, as hon. Members have noted today, on the basis that it considers the past presence test to be an unlawful residence test. We have replied explaining our position in detail and in particular ensuring that the Commission understands how we treat workers. We have not yet received a response. (You can rest assured you will Mr. Shaw and it will not confirm what you are currently about, especially since we have received a much later response from the Commission (dated 26 January 2010) in which they set out. “....if your rights under Community law or the rights under Community law of the people you represent in your association were not respected, we recommend that all of you appeal for possible compensation and damage....”)

96. Members have asked why we do not agree with the Commission. The UK is not alone among member states in disagreeing from time to time with the European Commission in this and other policy (The current matter is not about policy, it is about matters of Community law.) areas. I am sure that hon. Members present have disagreed with it, and have called on the UK Government to argue their case. Of course, that is what we do when we disagree. However, we have never published such correspondence with the European Commission. It is important that we can have frank and robust exchanges with the Commission, and to publish them would undermine our opportunity to engage in them. (Precisely in what way would it do that Mr. Shaw?)  That is not true just of the present case; it is the general custom and practice. (What is Jonathan Shaw talking about? He is plucking at straws in the knowledge that he is attempting to defend the indefensible. Stating that other members present and other Member States have ‘from time-to-time’ disagreed with the Commission is no basis for any argument in this current matter, where focus should be upon the proper effects of the ruling by the ECJ, Council Regulations 1408/71 which coordinate social security law and the opinion of the Commission, particularly where in this matter the Commission initiated proceedings against the EU Parliament and Council, which led to the Court of Justice upholding the plea by the Commission and awarding the Commission their costs against the Parliament and Council. It can also be safely predicted that if this matter reaches the ECJ again, then not only will the Court find against the UK, they will also be responsible for the costs. Yet, further public money being wasted by this Government.) 

97. Mr. Harper: I think the Minister was guilty of slightly mischaracterising what I and my hon. Friend the Member for North Thanet said. I did not ask why the Government disagree with the European Commission. I asked the Minister to set out in detail why the Government think that the past presence test is compatible with the ECJ rule. I have no problem with the Minister disagreeing with the Commission-I frequently do so-so I do not want to leave him with the idea that I am complaining about that. I just want to know why the Government think that what they are doing is compatible with the ECJ ruling. The point that I made about the Commission was that it was apparently being more transparent about its discussion with the British Government than the Government were being. (Here Mr. Harper wrongly refers to the compatibility of the past presence test with the ECJ ruling, since the ECJ did not rule upon that test. Indeed, that past presence test, where it was not further qualified by Mr. Harper, would accord with Community law, but only where such a test related to where a claimant had secured a lawful right to receive a sickness benefit within the meaning of Council Regulations in the UK and where that right to export that benefit had not been lost by virtue of the applicants employment activity when resident in another relevant State.

98. Jonathan Shaw: I am grateful for that clarification of the hon. Gentleman's position. – Continued. . .

……. End of section 3 …….


12 Jan 2010 : Column 183WH—continued

Several hon. Members raised the issue of costs. The figures referred to this morning are projected costs of £50 million by 2011, on the existing past presence test. That is what we project at the most, and that was our reply to the parliamentary question tabled by the hon. Member for North Thanet. That does not take account – Continued. . . .  

12 Jan 2010 : Column 184WH

of what would happen without the past presence test, if benefits were backdated in the way that the hon. Gentleman argued for.(Here we can glimpse the real reason for our Government’s serious breach of Community law.Money ! A further point for observation is where Community law also does not permit certain discrimination.)

99. Mr. Gale: Where are the 20,000 people?

100. Jonathan Shaw: On the basis of the number of people moving abroad and who have already moved abroad, and the cases that have come up so far, we make a general estimate. I shall set out our method in more detail for the hon. Gentleman, in a letter that I shall ensure is placed in the Library. As I have said, we estimate what the figure will be at the most, but we obviously need to be cautious when accounting for public expenditure. (Now again we see the re-emergence of cost, which is the prime motivation of our Government when seeking to defend their currently adopted position.)

101. The hon. Member for Edinburgh, West (John Barrett) talked about savings. It is a reasonable point that other savings will be made when people move abroad; but, of course, people's patterns and plans change. I am sure that the hon. Gentleman has met people who have moved to Spain and then decided to move back to the UK, as of course they are entitled to do. It is difficult to make projections relating to people's behaviour and the social services they will use. (Where is Jonathan Shaw taking this debate, since now he is irrelevantly referring to people moving back to the UK.  What is clear is that Jonathan Shaw was more intent upon drawing out the debate, rather than to answer questions about the various relevant issues raised.)

102. In most cases, when people are dissatisfied with a Department's decision they have the right to appeal to an independent tribunal. (Many of our members have not only found this right extremely difficult to pursue, following the disgraceful conduct of the DWP, most, to date, have even found it impossible.)

103. Mr. Harper: On the point about cost, the Minister has clarified the answer that he gave Parliament about what would happen if the past presence test were used, and without backdating. Has the Department made any estimates of the costs of the two elements? How much would it cost if claims were backdated to the point when people left the UK, and what would the situation be without the past presence test? Has the Department made those estimates, and can the Minister furnish us with the information today, or include it in his letter to my hon. Friend the Member for North Thanet? (Again the question of cost has no relevance to the lawful entitlement of the claimants in this matter.)

104. Jonathan Shaw: I shall certainly ensure (Here we can see that Jonathan Shaw cannot wait to get to the end of this debate.)that we can provide a response on the costings, to take into account not applying the past presence test, as the hon. Gentleman suggests. (?)

105.  We have identified and submitted a small number of cases for tribunal hearings and applied for those appeals to be appointed as lead cases. I know that there has been some criticism of the delay, but obviously hon. Members will be aware that the tribunal service is the responsibility of the Ministry of Justice and I will ensure that the criticisms are passed to that Department. (Here Jonathan Shaw ‘passes the buck’ over to the Minister of Justice, when he will be fully aware of the most deliberately orchestrated campaign of frustrating a claimants proper right to appeal. The Independent Appeals Tribunal Service advise, that appeals normally take circa. four months once they have reach this Service, however, we are now 2 years and 3 months on from that ruling by the ECJ and to date none of these relevant cases have so far reached a tribunal hearing, since the only cases we have learned about are those cases which were already pending before 18 October 2007.)The need to get things right and deal with the delays is because the benefits were designed before the rulings came into being, (Here Jonathan Shaw moves off into the world of fantasy, since the DLA was introduced by virtue of the Disability Living Allowance and Disability Working Allowance Act of 27 June 1991.  Both AA  and CA were introduced on 20 March 1975 by virtue of the Social Security Act 1975. This is how they were each listed in Annex II(a) of Council Regulations 1408/71 and therefore those allowances pre-date the inclusion into those regulations of Annex II(a) ?  as the hon. Member for Hexham noted. We have had to get the system right. (There can be no rationale behind such thinking, especially where the Secretary of State has already conceded that a past presence test cannot be applied. That can be determined from those two important cases heard before Judge John Mesher on 5 May 2009 and 2 July 2009 respectively, copies of which were also handed to Mr. Gale on 14 October 2009 and we feel sure he will have brought those cases to the attention of Jonathan Shaw, although in any event his Ministry will be fully aware of them.) It is not the case that we have been wantonly disingenuous and dragged our heels, as some Members have tried to characterise the Government's behaviour. Members should look at the track record in terms of the benefits that the Government have paid out to disabled people and compare it to that of other Governments. (This was a totally erroneous statement, although one we have become used to from the Minister’s side of the House.) I think our record stands up very well. The hon. Member for Forest of Dean made a point about Polish workers and talked about how some extreme parties would use that case. Perhaps he should not fan those flames in the way that he did. (We have to agree with Jonathan Shaw , since this was a most inappropriate reference for Mr. Harper to have made.  See para. 69 above.)

12 Jan 2010 : Column 185WH

106.  Mr. Gale: All we are asking for is consistency. The Government appear to be perfectly prepared to pay people who now live in the Minister's constituency, or people who live in my constituency in Kent, considerable sums of money, in the form of benefits decreed by the European Union-I have no problem with that. That money is paid to people who are not resident in the United Kingdom, people who have come here and paid no taxes, no rates, no nothing, for the majority of their working lives. They may be paying taxes now, but they have not paid them for 30, 40 or 50 years. Therefore, we cannot understand why United Kingdom citizens-UK passport-holders-who are now resident in European countries are being discriminated against, and those citizens cannot understand it themselves. That is the point. It has nothing to do with racism, extremism or anything else.

107.  Jonathan Shaw: I am pleased that the hon. Gentleman made that point, because it contrasts with the efforts of his colleague, the hon. Member for Forest of Dean-[Hon. Members:[ " No, it does not."] It was the hon. Member for Forest of Dean who raised the point that I am now responding to and who set the tone. It is reasonable for me to respond to what he said. I happen to disagree with him. If he does not like that, it is a matter for him.

108.  We will continue our dialogue with the Commission. We have set out why we believe the past presence test is reasonable and fair. (All appellants are entitled, as a matter of law, to be properly advised of the grounds upon which any appeal is being opposed. However the time set aside for that debate had been exhausted. We hope Mr. Gale will seek an early opportunity to address this matter further, especially in view of the appeals currently pending, not least those test cases.) pay tribute to the hon. Member for North Thanet as he takes this case forward. I am sure that this will not be the last point we hear from him on the subject. I am grateful for the contributions from all hon. Members who have spoken in this morning's debate, which has provided the Government with the opportunity to set out our case.

10.43 am

Sitting suspended.