DLA some movement

[Benjamin]

[quote user="Tony F Dordogne"]But be prepared to prove that you actually did indeed go back for 26 weeks - remember, big brother IS watching :)[/quote]

Research, planning and then execution.   [:D]

[Tony F Dordogne]

OK folks, the next stage of the battle is forming.  The Expo Team have replied to my email and this needs to be spread far anbd wide - talk about having it both ways.

"You have asked about the meaning of the phrase "the date your
entitlement to benefit can be established" that has been used in forms
and statements about claiming Disability Living Allowance from an EEA
State other than the UK, or Switzerland.

For people who are asking for reinstatement of entitlement that was lost
following a move abroad, we will first need to consider whether we are
able to look again at the decision we made when they moved abroad.  The
law says that we can do this when:
* The decision can be shown to be wrong and the request for us to
change the decision has been made within certain time limits laid down
in the Social Security and Child Support (Decisions and Appeals)
Regulations 1999 or,
* There was an "official error" when the decision maker made their
decision

Decisions made before the ECJ ruling on 18th October 2007 saying that
customers could not be entitled to DLA following a move to another EEA
state were correct under the law as it was at that time.  There was no
"official error" in making decisions that said this.

This means, for customers who did not ask us to look at the decision to
stop their DLA within the correct time limits, we will only be able to
consider their entitlement to DLA from the date that they now write to
us and ask us.

The meaning of the phrase "the date your entitlement to benefit can be
established" is the date on which the person contacts the Department
asking for a reconsideration or making a new claim, or such later date
as they meet all the conditions of entitlement, like the qualifying
period for the benefit.

In your case, we made our decision to say that you were not entitled to
DLA on 18/10/2005.   You contacted us on 25/10/2007 asking us to
reinstate your DLA.  This is outside the time limits for appealing the
decision made in October 2005.  Accordingly 25/10/2007 is the earliest
date that your entitlement to DLA could now be established.

Thank you

DLA/AA Exportability Team
Warbreck House
Warbreck Hill Rd
Blackpool
FY2 0ZE"

So, what they seem to be saying is that the law when I moved to France was right and that an appeal against that law would have been turned down.  But, because I didn't appeal against a decision that they were not going to allow to change, I'm now only getting the DLA - I hope - from the date I resubmitted my claim.

This is getting to be a bureaucratic nightmare and nothing more than governmental waltzing in an attempt to avoid paying benefit for the 'down time' between 2005 when my benefit was stopped - I actually surrendered it - until October 2007, when I resubmitted my claim after the European decision.

[Benjamin]

This looks as if it's starting to become a beaurocratic nightmare.

Does this part of their answer..

Accordingly 25/10/2007 is the earliest

date that your entitlement to DLA could now be established.

mean that they can put you through the 26/52 weeks ruling for the year prior to 25/10/2007?

[Tony F Dordogne]

From what I understand, it depends on whether as an alternative to the 26/52 week rule, you qualify under the Benefit and NI rule - more information as soon as I receive it, I've asked for clarification from the ExpoTeam.

[dragonrouge]

Tony a bit later today I will look at this situation and see what their legal thinking is suggesting,  However I can say that when I dealt with my wife's DLA I did appeal and within the time scales their decision then went to a Tribunal and then won despite Mme Chairperson finding that her views were being argued against by a fellow lawyer complete with all the decisions and rulings. This was in 2005.

For 'decisions' have a look at Wednesbury and from where lots of cases have followed.  Google it and you will find that official decisions must be rational logical and reasonable otherwise they can be challenged.

 

rdgs

 

[martin]

Not sure if I've missed something in this topic, but where does 2005 come into this?

In my wife's case, her DLA was terminated end of 2003 on coming to France.  She appealed against the decision and of course lost. 

Since the EU judgement we have been in regular contact with the DWP even having just filled in their new form (with the dreaded question 16), but no mention has been made of 2005.

So, has this been a waste of time in our case and for anyone asking reinstatement from prior to 2005?

Rather confused - anybody able to explain please.

[barebackrider]

I too am totally confused now. Firstly, I too do not know where the 2005 came from. Secondly, what is the "13 months"? 

We had our benefits stopped in 2006, and challenged them, but were turned down.

After that date we knew nothing about any ruling until we read about it.on the internet at the beginning of 2008, so how many people who do not have internet not know about the ruling in the first instance as no information was sent out by the DWP to customers, well at least definately not to us! 

We too have had our claim forms, and have duly ticked the dreaded 26 weeks question with a NO, so why were these forms sent out in the first instance? There is no information regarding timescales or previous appeals on the forms. Meanwhile, health and finance continue to suffer whilst another reel of tape is left unwound, and we are all left hanging again.

Anybody?

Thank you

 

[Tony F Dordogne]

OK, this is how I understand it, tho the 2005 date info may be incorrect.

The 2005 date is the date at which the Spanish group made the application to the ECJ.

I THINK - not sure - that the 13 month rule is the time that previous claimants have to submit a new claim, may be a way of stopping people claiming, I'm sure that Tina will clarify this.

There is no mechanism for the DWP to inform people that the ECJ decision had been made, nor do they have an obligation to do so.  This would be impossible anyway for anybody who surrendered or lost their benefit 14 months or more before the ECJ decision was made as records are deleted after 14 months - therefore we ceased to exist until we submitted our new claims.  If people didn't have access to the internet or online information, basically it's their hard luck.  If you claimed at the beginning of 2008, the DLA ExpoTeam are saying that your DLA will be backdated to that date.

As you have previously made a claim and received DLA, Q16 in theory should not apply to you tho this has yet to be confirmed.

Martin, the issue about 2005 isn't - as far as I know - a way of stopping back claims.  If it were, my claim would have to be reinstated as I moved here in 2005 and I'm being told that my payment, if and when it comes, can only be backdated to my date of 'new' claim, not July 2005.

BBR , not sure how your finances 'continue to suffer', we all knew when we came here that DLA was not payable so the ECJ decision was, in many ways a bonus - to me, any back payment is like a non-interest bearing savings scheme which to me seems to be the best way of looking at it. 

[barebackrider]

Hello Tony

thank you so much for your enlightening, it is really appreciated.

Finance wise, we personally are not 'suffering', as you said, we all knew we would our benefits would be stopped when we moved from the UK; I personally just feel for a few couples we know of locally, in their late 70's, who have lost out (as we all have!) with the £/euro exchange rate, and as their personal health has deteriorated and they feel 'vulnerable'.  They have not found buyers for their properties,and are now hoping their families will help them out if they move back to the UK. Maybe, just maybe, if they had some extra money, they just might live the rest of their lives in the homes they hoped they would see their days out in.

For us, like yourself, re instatement would be a bonus, and back payment would be welcomed with wide open arms.

with kind regards

BBR

 

[wild geese]

Hi everyone,

Today we received an email from the exportability team in Belfast giving us the glad tidings that they are going to reinstate our entitlements from when we left UK in October 2007.

This is very good news indeed but because of the lack of movement from the Disability Living Allowance department in not paying us our UK benefits we had to apply to the French Government for AAH from the Caf and PCH  from the MDPH (a very steep learning curve I may add because I neither write nor speak French).  Eventually we received payments from both of these departments and are now in the process of getting Devis for ramps, a new wheelchair and bathroom facilities which will be paid for mainly by the MDPH.

Because we will be getting benefits from the UK do we now have to pay back all of the payments we received from the French Government, that’s fine but what happens about the ramps etc. Does anybody know what the situation is in this scenario?   Are we now going up that creek without a paddle again?

Well, at least all this has helped me to improve my French language, if nothing else.

Mags

   

[barebackrider]

Talk about rubbing salt in the wound? This morning I sent an email to Melanie Phillips at the Daily Mail, highlighting the fact that amidst the illegally held payments of DLA and the emboilment of tape the DWP have wrapped the ruling in, Tony McNulty above all people to be exposed is just the icing on the non edible cake. 

I also copied and pasted a statement made by AON regarding the amount of state pension the UK paid in comparison to the rest of the EU - just to pour oil on his fire.

A study by consultancy firm Aon shows the state pays pensioners an income equivalent to just 17% of average earnings.

This is the lowest level in Europe and well below the average for all European Union countries of 57%. Even the Netherlands, which has the second-lowest level, provides a state pension nearly double the UK figure, the study shows.

The UK also has one of the highest retirement ages in Europe at an average of 62.2 years, with 57% of people aged between 55 and 65 still working.

Aon says the 'inadequacy' of the UK's state pension system is 'beyond question'.

HOW DARE HE????

Lynn

 

 

[Tony F Dordogne]

He did it, as others have done, because the stupid rules in the Houses of Parliament say that he can and, from a programme a few days ago, MPs think that as their salary is so low, expenses 'make it up' to a better level.

All the financial dealing of Parliament need sorting, like the attendance allowance in the Lords, so long as they sign in for the day, whether they stay or not, they get paid!

Still, we voted them in and we allow this to happen, until there's a huge groundswell of critisim directly to Parliament from the voters, letters etc rather than well-heeled journos having a go, they'll do nothing.

[KathyC]

I've read through all this and wonder if anybody could advise where we stand as I don't think this situation has been covered.

My husband's health reached a level where he would've been eligible to apply for DLA/AA in about 2005 but we didn't apply because we knew the benefits weren't exportable. We were planning to move in 2006 although this was later delayed until 2007. Of course, if we'd known it would be this long we'd've applied anyway, but we always thought a move was a couple of months ahead.

Fast forward to 20 November last year when we read about the changes in policy and so we put in a claim for AA, having lived in France for just over a year. Does this mean that he's now fallen through a gap in the system where people who were previously getting these benefits will have them reinstated (albeit with an ongoing argument about backdating) and anyone leaving now will get them but someone in his situation falls between the two?

Apologies if this has actually been covered and I've missed it.

Looking at it from a crooked point of view, what checks would be made if one were to tick "Yes" in the 26/52 box? We were in the French health system at that point but not the tax system if that's relevant at all. We also owned a property in the UK until March 2008.

[Ron Avery]

And although nothing to do with DLA payments to Immigrants whatsoever  AON are a pension providing company who have a vested interest in coming up with surveys that suggest that pension provision in the UK is inadequate, hardly likely to say otherwise are they?

[rockstitch]

I will be 60 years  next month April, I will be getting my first payment of my State Pension. After a lot of writing and phone calls later I had to pay for the missing years (£156) and 1 year that they awarded me on HRP (Home Responsibaly Protection)  on my husbands stamps which I had to point out to them I was entitled to, including the miserly sum of .23p(Graduated Retirement Benefit) based on contributions paid between the years 1961-1965. I was eventually awarded £69.03per week.  At the moment I am on Incapacity Benefit and I am getting £84.50 per week. So I will be taking a cut of £15.47per week. Is it when you are sick and become a pensioner you need less money to survive per week or perhaps the goverment would prefer that you just die????

[grecophile-2008]

I moved to Greece in 2006 with my husband who had to relinquish his DLA at that time under the rules as they stood. I did not know anything about the ECJ judgement until I started to go through the hoops of trying to get his retirement pension for him last year and came across a reference to it on the web. I immediately contacted the exportability team and seven months later am still trying to get forms out of them for both his DLA reinstatement and my CA allowance. By my understanding the relevant word in the ECJ ruling is annullment (definition -declare invalid). The UK inserted the the category of of "special non contributory" benefits in 1992 into the EC Regulation 1408/71 relating to exportablity of DLA, CA and AA and it is this category which the ECJ has annulled. The DWP have a claims process for "Financial Redress for Maladministration". You have to persist to get a copy of this booklet from them and is usually only available to support groups, lawyers etc. Basically it says that "it should restore the person who suffered the loss to the position he/she would have enjoyed should the error not occurred". Interest should be paid on outstanding payments, not as a matter of course, but you normally have to remind them of it. In other words it can be interpreted that the ECJ with their ruling judged the insertion of the amendment by the UK in 1992 was an error. ECJ cases dated as far back as 1999 ruled against this category, therefore, the UK government were put on notice from then on that there was a problem. They have been hiding it from their "customers" the claimants until forced to do something about it by the ECJ.The DWP are now trying to get out of paying sickness benefits to the more vulnerable by whatever nefarious means it can.

Keep the information flowing as we do not have the same sort of support mechanism you seem to have in France and Spain for expats. I think it is going to be a long battle.

[Tony F Dordogne]

After my previous posting of the reply I received from the ExpoTeam, I sent them another email on the 10th March:

"Thank you for your reply to my email of 10 March.

Can I clarify what you have told me please?

I surrendered my benefit in October 2005.  You say that at that time there was no error in law so even if I had submitted an appeal as there was no error in law, such an appeal would have been both pointless and fruitless because the decision on DLA was final and incontrovertible.

Effectively, had I submitted an appeal, which may not have even been allowed as there was no error in law and would certainly not have been successful, that would have enabled me to claim the benefit for the period October 2005 to October 2007?  Is that the position?

Can I point out to you that, on the advice of one of your colleagues, I submitted an appeal to your office, with my claim for re-instatement, in October 2007.  Although I appreciate that may have been outside the normal appeals period, telling somebody that they should have appealed against a decision that could not have been overturned come what may, seems bizarre to say the very least."

I sent them a reminder that I was still awaiting a reply on Saturday last and today received a reply:

"Further to your e mail of 12th March 2009 I am sorry I am unable to provide you with a full reply at this time.

I am in receipt of all previous correspondence concerning this matter and hope to be able to consider all the points you raise and provide you with a full reply within the next 14 days. 

Should you have any queries in the meantime please do not hesitate to contact me."

So that clarifies that then, more waiting time because they don't know the answer.

 

[Tony F Dordogne]

Grecophile, that's going to really confuse the issue but hopefully to the benefit of claimants.

Now, I'm going to ask for a copy of 'Financial Redress for Maladminsitration', just to see how far I get with the request.

And as for interest, that will really cause the DLA some upset.

[grecophile-2008]

Well done Tina. I think you are right. I had a problem with the DLA in 2001 and won an Appeals Tribunal against them on behalf of my husband. We were helped by someone who had a degree in Social Security Law who asked me to test the system in reclaiming all my costs and seeking compensation. This was also successful but I had to give the guide back to her once I had used it.

You are obviously much further along the line in getting information than me. I have been reading back on the link and will now start pushing through Ms Kettle. I have also raised the issue with David Cameron's office as a by line with an appeal my husband has with his pension.

[grecophile-2008]

I have just been looking at the guide and note that under section 12 "What is Maladministration" the DWP guide cites -omission to notify those who thereby lose a right of appeal. The DWP were aware that the European Courts of Justice were taking action against them in 2005. I would think it could be argued as an omission on their part not to have included a paragraph in the decision notice of all those who lost their benefits due to moving to another European country after that date to the effect that the basis for refusal was being challenged by the ECJ. The fact that three rulings had already been made by the ECJ against annex11a should have given them due warning that the UK government and hence the DWP would lose. I also wonder whether it could be argued that as it was the Commission of the European Communities (in what is considered an unprecedented act) who in effect took the UK to court they were acting on our behalf and as such were appealing all decisions to remove the benefits from the date of that action -in effect a class action as the Americans would say.

Does anyone know how many people have been successful so far in getting DLA,  AA and Carers reinstated and if so how did they do it. Any tips would be gratefully received.

 

[Tony F Dordogne]

[quote user="grecophile-2008"]

Does anyone know how many people have been successful so far in getting DLA,  AA and Carers reinstated and if so how did they do it. Any tips would be gratefully received.

[/quote]

So far as I've read thus far it's only the people that have moved to Europe after the ECJ October 2007 ruling that have thus far been re-instated, mainly because they would still appear on the computer as many of them would have reclaimed within the 14 month period after which DLA records are wiped.

From what I've heard from other people affected and the DLA itself, those people claiming for benefits which were stopped/surrendered prior to October 2007 are now being processed in the order of the DLA ExpoTeam received their new forms, hence these new supplementary  forms DBD990 being sent out in that order, effectively as our claim is entered onto the computer and is seen as 'live', containing questions which do not appear on current DLA claim forms, which we've already filled in! 

[Tony F Dordogne]

[quote user="grecophile-2008"]

I have just been looking at the guide and note that under section 12 "What is Maladministration" the DWP guide cites -omission to notify those who thereby lose a right of appeal. [/quote]

And on this issue, my latest email to them seeks to clarify the position concerning being penalised for not appealing against a decision that we couldn't win, it's not that we lost the right to appeal, it's just that as the law was drawn at that time, so far as the majority of us were concerned, any appeal would have been unsuccesful.  Using the information that you've provided, it would appear that we would have been able to lodge an appeal with some chance of success.

Do you have any correspondence with the DLA on this issue, it may be useful for the rest of us to use?

[grecophile-2008]

Unfortunately I am only at the start of trying to get my husband's DLA and thus my CA reinstated. I still haven't even received a claim form despite numerous e-mails. All I have received so far is the kind of responses already noted about being dealt with in order, no need to contact them etc etc etc. The majority of e-mails have been ignored. More grist to the mill for the maladministration claim.

In dealing with the DWP for maladministration before I basically looked through their guidelines and submitted a bill itemising telephone calls, postage, time, petrol. I also had a claim for distress as a special payment. I had to list which areas they had failed in and why, backing it up with documentary evidence where possible. Basically use their guide, which is intended for their own guidance, against them.

 

[martin]

The year 2005 keeps cropping up - how significant is this date?

In my (wife's) case we moved here in 2003 so would any reinstatement (never mind back payments) already be ruled out?  If so, then so be it, but I wish the DWP would make this clear.

Any informed opinions would be welcome.

 

 

 

[Tony F Dordogne]

Martin, your claim should just be dealt with on the basis that you ceased to claim in 2003 and you want reinstatement back to that date, including payments and now, apparently, i nterest on the money.  Ignore the 2005, that's to do with individual claims, so for 2005 in your case, read 2003.