dragonrouge

Bailii are good but tend to be matters that go say to Court of Appeal or the House or Lords. Also most times Tribunal Decisions are never reported. I have the legal text book on non means tested benefit. It runs to hundreds of pages and each page costs about a £ a page! It is a huge document and believe me its a heck of a book to try to understand. Nothing like a book on Company Law or Contract! I will see if I can obtain the supplements the ECJ judgment might now be in there!

Tina I have had a coffee and now I am at least starting to think a little more clearly. I do remember something about the Maxwell case and indeed let us say had something to do with it! However another story. But there was at the time a DTI case and where it was about Decision Makers and whether they act fairly and in accordance with the law to plaintiffs I think it was. There was something that was commonly called an elephant judgment. The leading judgment was given by Lord Justice Lawton in Maxwello v DTI (1974) 2 All ER 122 said that his judgment would be based on one simple test did the Decision Maker act fairly towards the Plaintiff. We all know the Maxwell case and its background but the judgment was simply one of against the facts did the Decision Maker act fairly. So against the DLA background did the DM act fairly. Read the case and you will see what LJ Lawton was getting at. Sorry for the legal framework folks on this lovely sunny day in the Vendee.

Hi thanks for that. Therefore see one of my postings as to the question of old fashioned plain speaking and the intentions of the parties. Therefore if the forerunner of the ECJ was the intention to obtain benefits that had been denied due to moving abroad then that is a huge issue. Tina when you get in front of the Tribunal you will of course have already exchanged arguments. With respect one of the starting points of your submission must be the plain simple language test and that the intention of those bringing the action was not to protect those in the future but to 'have back' that that was taken away in the first place. Of course the judgment is silent on the 26/52 scenario and this points to the ECJ not even considering the issue for what they had I suspect in their heads was a simple question of whether the benefit was exportable. 26/52 did not even come into it. The claimants had been through this hoop before and satisfied the test so it is absolutely bad law for them to have to go through it again and its not moving the goalposts so to do its moving the whole stadium. It will only take one or two Tribunals or pushing this to a Commissioner before I hope and believe the test will not be applied. This week in the UK there was a problem again for HMG as in the Gurkhas and that was against a low cost base. I wonder if what we are seeing is bloody mindedness or someone trying to double guess the judgment and trying to prove something that is not there? I do wish I had retained my law textbooks! for somewhere there is an interesting case or cases on the question of where the law is silent! As in 26/52 and the ECJ judgment and where they are indeed silent. Will Google it. However folks my legal textbooks and I are now somewhat old! But there must now be numerous cases on the point and I will look at it. Seems appropriate on the 1st of May. rdgs

Sid it was fun for the first two or three journeys but after that it was hard going. But I know what you mean.

I have read Ali-Cat on this and its a very good piece of work. At the same time I have once more read the judgment and the DM advise. Here I am totally with Ali-Cat in that DWP have taken the viewpoint (wrongly) in my opinion that the starting point in all of this is the date of judgment and what went before was 'legal' and that the judgment was not supposed to be retrospective. The action in my opinion was to establish the right to export not the date of export as being the date of the judgment and so DWP want to wipe the slate clean and there say ok you can export but your new claim needs as part of the process to establish the 26/52 rule and as you cannot then sorry no DLA. They might have taken legal advice but I think and its my opinion only that a Tribunal might not go with them on this. I continue to go back to the old tried and tested approach believing their decision making is flawed and that they are showing irrational illogical and unreasonable approaches in all of this. The argument 'of course DLA can be exported so fine but of course you cannot pass the 26/52 test so its not exportable. Surely this was not the rational behind the judgment or was it. Did the judgment seek to resolve the 'wrongs' that went before or to establish the new approach for those who are now in receipt of DLA or are making a claim in the UK and can thus pass the 26/52 test?

I have spoken to a colleague in Bristol and we both believe the ECJ is a complex issue and not at all easy to understand (that is us not you!) So we have put this down into basic language and which I find easier to understand. Imagine a high profile murder UK case. Guy found guilty later Court of Appeal says verdict unsafe due to DNA or whatever and the guy then goes free. Here it was HMG in the dock and ECJ says they made an error in law and the law from 2007 was that DLA save for mobility is exportable. However what the ECJ did not say (it is silent on the point) is anything about 26/52. So from October any new applicants can export but those from earlier do not for they argue before 2007 the law was correct and thus their decisions were sensible and in line with the law. Save of course if you appealed within the timescale. Therefore 26/52 stands if they are able to get away with it? This I think is madness for the judgment could be read as any decision made on the basis of exportability was wrong in law HMG are saying that only from October 2007 it is wrong? Please discuss!

Dear Puzzled here I think they are trying to say that essentially there was a error in law and they admit to that. But that such an error could only come into being when you or I or anyone else makes an application for re-instatement and as you did not pass the residency test then DLA does not become payable. I would argue that this is equivalent of giving the keys of the mental hospital to the in-mates. The error in law occured in my opinion when the decision to stop DLA was made upon a person leaving the UK not when that person made an application for re-instatement. This is now getting silly but they say that October 2007 is the decisive date. This is unsustainable I say and it has to be challenged. Regards

Hi I am sorry but my new computer is not allowing me to read the Decision Makers Guide. Any chance please that someone can scan it and then send it by pm to me? Have read and re-read the judgment and as we all know the arguments basically were what is DLA what is mobility and what is that and this and which list it goes into. There was and is nothing in that as to 26/52 and as I say if someone please could send me the DM guide I can then piece the judgment and their approach together. kind regards

As to the Tribunals all the ones I have appeared in front of consisted of three people. The Chair legally qualified and normally a Solicitor (many of whom I have fallen out with on points of law) then a medical guy when there is a question as to whether DLA is appropriate medically wise then a strict lay person. I have won all of my cases to date but that is just something that has happened. I remain convinced that good sound arguments will win the day. But I am beginning to see some problems and will return to the judgment as a whole later today. The NI approach and which is another posting in respect of DLA is suggesting to me that back dating of the claim to when one left the UK is going to be difficult and I am in some difficulty in understanding Blackpools approach to 26/52. I can only find the Google approach to the Judgment has anyone please the judgment in totality for since switching to a new computer let us say we have had some problems. I need to read it again and again.

Dear Tony any process must have an end game and I really think that someone should ask to go before a Tribunal on this point. At the same time have a look at the other posting from NI and yes I know things there are different but its a case of someone moving here and who passes the residency test and who is going to be paid DLA. That tells me that the residency test is really something that is so important for otherwise they would have simply paid all DLA and not gone down the road they are going.

Dear Barebackrider A basis for an appeal to a Tribunal is very much that they have not reached a decision!!!!!!!!!!!!!! English law lays down strict guidelines and it is not acceptable under the law for them to say see you in eighteen months time. Their staffing problems are theirs and theirs alone. I would appeal on the basis that they have not yet reached a decision? But that is me.

Dear Benjamin that is exactly the point someone has to hit a Tribunal first and then the DLA has to outlined its argument either in writing or in person. They are under no obligation to go wholesale on this. It is like the bank charges case in the UK someone first had to have the hearing in the High Court. May I suggest that whomever on this forum gets there first then it might be helpful to have an on-line discussion in very general terms for otherwise it could or could not have a benefit for those who follow.

Sid just thought I would clarify what I was trying to say. I believe the quality of the rolling stock going from Calais say to Italy or from say Brussels is different to those used in France. I have travelled so called first class from Calais to Nice to Avignon to Brive to Narbonne and we have had the compartment to ourselves. Privacy is one thing but the facilities are basic Hidi Hi in my opinion. Used the routes many times when I was younger and it was good but now would not touch it. Fine going through Lyon down the Rhone arriving at Avignon breakfast outside but seriously a huge amount of £ is needed to upgrade the rolling stock.

Yes of course Sid but these journeys are not essentially French driven if you follow my thought process. The rolling stock is different in different countries.

As I understand things Tony one Tribunals decision is not binding on another Tribunal? However the DLA traditionally follow a Tribunals decision and do not appeal to a Commissioner. With respect as well it is difficult to take a broad brush approach and there may well be other things that we do not know. However inconsistency is another argument plus others which have already been identified. Inh my experience the DLA people do not send someone to represent them at Tribunal and if they do they tend to get a 'locum' who sometimes knows nothing. Mainly they provide written evidence. I still say the better way forward is to argue that the judgment is binding etc etc and when someone gets to the Tribunal then they have to disclose their interpretation of the judgment. Then the argument starts! rdgs

Dear Grecophile little bit of advice here if I may. When writing to the DLA try to use phrases and words which indicate in your opinion their decision was perverse flies in the face of a judgment which is binding upon the UK. That therefore their decision making process is flawed illogical unreasonable and irrational. Do not forget you have just one month to appeal and you need a personal hearing not a Tribunal where both parties can submit written evidence. You also in your letter need to insist that both parties exchange the basis of their arguments 21 says before the hearing., You do not want any nasties on the day so 21 days gives you the time to research and perfect your argument. The DLA will have to tell you and in advance what their interpretation of the judgment is and that will be the secret to all of this and to all of us.

Bit late into this one but I too would not repeat the exercise.  Travelled both ways and its a hot unpleasant journey and as in most Motor Rail the cars go to a differing place and then back to the station.  Also you have to keep your wits about you in Narbonne Station for the signs for the trains change |(well at least they did when I used them) and I was on the wrong platform. Nothing on the train save for warm beers and poor quality red wine (from the guard who tend to be university students making money in the summer) No sorry would prefer to break the journey with a good hotel.

Glacier 1 slightly off subject area.  But I know the Rhone very well from Hermitage Cornas Cote Rotie in the North down to Gigondas and the like in the south.  Been there in the winter and as you say sometimes its very cold and then add the Mistral.  However 38+ in the summer does it really get that hot. I have been for over 30 years to the area in June and September but not the very busy time and whilst warm it has never ever hit those heights. I envy you for I love the Rhone

Cloudy here and very near Fontenay le Comte.  Another argument to chit or not to chit and indeed I have already seen a colorado beetle! Fingers crossed

Dear Barebackrider I do not know wish to cut across the most recent posting but of course you can appeal on the basis that they have not yet reached a decision.  That is fundamental in English law.

Dear Puzzled I agree with you that an appeal well-structured and well-rehearsed should go in but out there are individuals with needs and of course the DLA guys would not take let us say a class action and for obvious reasons DLA is very much an individual scenario. So you need a consensus here. For someone else and here on the forum I have done a draft letter perhaps on the basis that you are suggesting.  I am not saying its a wonderful piece of work or that it could not be improved but its something that I have done overnight and thinking about the problem.  It would be for the other contributor to decide if they wish to let others have the framework of the letter.It is a starting point. If I can be of any further help then of course I will gladly do so.

Hi I have been doing some work here and quite obviously you should distance yourself from the medical background to DLA and in all of its constitutent parts for it is not about that it is quite simply again an interpretation of the law.  Does the judgment of 2007 read in a very simple format say that it draws a line under such matters on the date of its judgment or does it imply that it does indeed (and which is my view) cover all such denials made by DWP and thus is retrospective? They say that it is not retrospective and thus  those of use who have not appealed within the prescribed limits and are now resident wherever cannot claim DLA. So they are saying that 2007 is the date of application and as you cannot subscribe to ther residency test then too bad. In its very basic of terms this is all about a Point of Law and which is of supreme importance both to those who have valid claims and indeed HMG. This situation has to be tested and before a Tribunal.  Please also note that a Decision Makers decision is not binding it is his or her interpretation.  The Tribunal it has been argued is nothing less than a mouthpiece for DWP and indeed the Commissioner it has been argued also supports the status quo. However we should research the judgment and make absolutely sure that nothing is lost in the translation between the original language and the subsequent translation. This appeal process will cost little from the Tribunal to the Commissioner but after that it moves to a differing level so be aware of that. But you have to go to the Tribunal.    

DEar Claire   I have lots of books on the subject matter and will gladly let you have one of them if it will help you. Claire how about a soil test first to see what you soil does or does not have? I have no financial involvement here but use Yara Labs in York and Tony F will correct me but most veg like a neutral soil but some acid.  So find out first what it will or will not support.  Again if you have lots of stones then stuff like carrots and parnsips will not do so well.

I am late into this recent flury of postings in that my wife who suffers from RA and has done so for over 32 years has now fallen and broken her ankle so life is a tiny bit tough but we will get there. This morning I have quickly scanned the various responses and seemingly the Blackpool guys are saying that they were only proved 'wrong' from the date of the judgment and thus everything that went before is fine and dandy unless of course one appealed within the time scales.  Then of course they go on to say that to qualify for DLA and obviously after the date of the judgment one has to fulfill the residency test.  So its smoke and mirrors. Here I will simply say for no other reason than to help in the process is that whilst our argument was a little different I did appeal within the stated period and on a point of law managed to get the Tribunal to go with me. The DWP logic escapes me and in our legal system we have checks and balances and thus it is common intent for say the Court of Appeal or the House of Lord to override earlier judgments of lower courts and for the respondent to be put back into the position he or she found themselves prior to suffering let us say the 'loss'  The law does not allow in general terms for betterment simply to put the claimant back to where he or she was and one should do everything one can to limit the 'loss' Normally retrospective law is considered not to be the 'thing to do' but I do not consider that is the case here.  The case is all about whether or not HMG were correct in their interpretation of the law and the 2007 judgment said they were not.  The judgment is wrapped up in lots of words but in the most simple analysis it says HMG is wrong and therefore decisions that the DWP made were illegal but it did not say there were illegal from the date of the judgment  it said they were illegal. The ordinary man sitting on top of Lord Dennings Clapham omnibus would I respectfully suggest read it that way. DWP are seemingly drawing the line as at the date of the judgment and I think that is wrong and I totally disagree with their interpretation of both the law and the judgment.  But I am merely an old legal eagle retired or semi retired in France.  I may be wrong but I think with respect that the law would go with this simplistic approach and which is what for the basis of the discussion I have tried to achieve. Here you have a major point of law which should be argued and either before a court of a Tribunal.  Here a thought. Should we write to them on the basis that we are absolutely at odds with their interpretation on a point of law and it is logical reasonable and rational for their views and our views to be presented before a tribunal and that equity allows for such a process to be followed. Logical rational and reasonable are terms to be found in the Wednesbury judgment (google it) and equity comes from Lord Denning and where he said that equity (fair play) should intervene when there were difficulties and where other branches of the law could not help.  This is very much a truncated approach but I think from memory he said it in the High Trees principal case.  Again google it. I hope you have found this helpful and this is just my view and I have always tried to adopt a simple approach in most things for otherwise confusion creeps in and confusion on the part of the DWP has undoubtedly crept in.   rdgs  

A big thank you to everyone.  Unfortunately my wife has suffered from Rheumatoid Arthritis for over thirty two years and this has let us say had an affect on hands and the like.  Then the break and a whole host of other problems then it is difficult.  But there are lots of people out there very worst off than us so we are grateful for what is looking like a very lovely day  here in the Vendee.