Analysis of Parliamentary Debate
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), (
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.
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
8. Notwithstanding the provisions of Article 10
9. At that time the
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
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
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
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
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
Decision of the European Court of Justice:
16. The Commission had entered a single plea that
the inclusion of
17. When reaching their decisions, both the Advocate General and the Court of Justice had
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
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
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
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.
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
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?
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
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.
The response by the Commission in their letter of
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
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
Meanwhile we have remained very active in this matter, as can be seen
from the input on our website. Indeed on
Right of Claimants to Damages:
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
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
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
34. We have received many
enquiries with regard to the severance of the ‘care’ element from the mobility
35. The decision to sever the link between the
care and mobility component elements of the UK’s
“...difficult issues arise
about the treatment of the mobility component of
36. With further regard
to the mobility element of
37. “It is
necessary, however, for the Court to state that the straightforward annulment
of the inclusion of the
Judge John Mesher intimated in his adjudication of
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)  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?
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
The past presence residence test of 26 weeks in previous 52 weeks:
This is clearly in breach of Community law and in that respect the
Commission has opened the infringement procedure against the
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
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
46. Community law is quite clear and for example
we quote the judgement of the ECJ of
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
by Judge John Mesher on
49. In a case then under
appeal in respect of both elements of
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
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
51. Now we already see where
the date of determination can lawfully be taken back to beyond
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.”
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
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.
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
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
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
upholding the appeal Judge Mesher reinstated the award for the care element of
a test case involving
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
Roger Gale (
2. Simon Morgan e-mailed me just before
Christmas. He told me that his father had died on
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 April...it
would appear that the DWP have shut the door on
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.)
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
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
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
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
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
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,
“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
19. Abroad in this case means within the European
Union (and the EEA)
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 regarded...as confidential".-[Official Report,
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
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 anyway...as 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.)
Atkinson: In the case of my constituent, who comes from Northumberland and
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.)
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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.)
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. . . .
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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
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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
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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.
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
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. . .
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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
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
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.
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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.
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"
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 …….
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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.
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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.
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
the effects of the inclusion of the Disability Living Allowance under the
heading ‘UNITED KINGDOM’, (d), of Annex IIa to Council Regulation (
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
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.)
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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.)
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
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
(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.
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.
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
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
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.
……. 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.)
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
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