DLA some movement

[Tony F Dordogne]

Shame the guidelines for the decision makers aren't covered by the Crystal Mark from the Plain English Campaign as the GL24 is.

But there's none of the real reasoning behind the guidance, just 'this is the way that it is' and the decision makers seem to be bound by it.  No justification really for the 26 week rule.  It's interesting tho that the UK Government have managed, if they win all this, to exclude everybody from the date of the wrong law to October 2007.  AND STILL THEY'LL PAY THE PEOPLE WHO AREN'T IN THE MIDDLE OF THIS, THOSE THAT ARE LEAVING THE UK NOW.

 

[barebackrider]

Tina, thank you for all your links and keeping everyone in the loop.

I am sure if you do want to go ahead and contact Rob Cornelissen on behalf of all of us, we would all be grateful. I have read the DM and para 33 has us stitched up it seems, but the whole thing is a minefield. Surely the law cannot allow us to just be cast aside and let HMG get away with it? There MUST be a way........

kindest regards to all

BBR

[dragonrouge]

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

[dragonrouge]

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

[Tony F Dordogne]

Tina, if you want to draft the letter, suits me fine, feel free to use my name as you see fit.

In a previous life, tho not legally qualified, my trades union work meant I presented quite a few cases at Tribunals and also in later life acted as a spokesman for people at County Court in a number of areas like home repossessions etc.  I'm willing to do the business at the Tribunal should mine be up first tho I will take some legal advice on the technicalities of the law before doing so.

And I do think that the advice about a personal hearing is essential, if the DWP do send a locum or local brief to deal with this, if we're well armed I'm sure that we can mount a good, constructive case.

DR, can I appeal now on the grounds of time taken to make a decision.  If so, it will put down a marker to the DWP/ExpoTeam that we wont go quietly into the night - talk about giving us all a perverse reason for living, if they hope we all die out before this gets to Tribunal they have another think coming, I'm going to stick around to prove just how bloody minded I can be.

And I'm now seriosly looking at the Financial Redress for Maladministration information, if we win at Tribunal and the law as they're interpreting it is proved wrong, then I think we should blitz them with claims too.

I'm also going to contact Moneybox on Radio 4, the iniquity of this may give them an ongoing story.  Edit:  Done, sent a suggestion for a story using the 26/52 week rule and the iniquity of the appeal against a good law argument.

[dragonrouge]

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!

[ali-cat]

Sorry to butt in on this thread on Ali-Cat's account but I've been following this thread off and on and have a few observations :

There appear to be two separate issues involved here; the issue of the exportability of DLA and the normally resident rules. Obviously the ECJ ruling has determined that the DLA care component should be exportable. The 26 week rule on normal residency is understandable and prior to the ECJ ruling applied both to fresh claims and to continuing eligibility. The ECJ ruling now means that the residency requirement can apply to fresh claims only.

I would guess that the DWP have taken their own internal legal advice on this and have decided that they have no way of refusing export of DLA for who make fresh claims and subsequently leave the UK or who were in receipt of DLA and left the UK after the date of the ECJ ruling. I would suspect that any fresh claims for DLA from those living abroad now who thought they were previously excluded from claiming DLA, will be refused on these residency grounds.

However, DWP seem to have decided to pull a fast one by interpreting the the ECJ ruling as not applying retrospectively and to treat those who left the UK prior to 2007 as new claimants, hence issuing new claim forms and then invoking the 26 week rule. Personally I believe the European Commission would take a very dim view of this cynical interpretation. The UK has been shown to have mistakenly included DLA in the annex of non exportable benefits to exclude its export under the relevant european directive. Following the ECJ ruling, any 'cut-off date' should relate to the date the relevant directive was to be implemented and not the date of the ECJ ruling. Otherwise, it would be entirely bizarre, if for example, the ECJ case was in response to an individual having their DLA stopped, and the ECJ ruling applied only to future cases and not the present one.

As regards tribunals, from the correspondence that Ali has had, the tribunals appear to operate very much within the existing system and will decide on the basis of the procedures and interpretation of the legislation provided by DWP or the other regional authorities. Therefore if DWP say that the 26 week residency rule applies then this is what the tribunal will decide.

I really believe that this issue needs to be raised outside of the DWP system however if anyone is due to appear before a tribunal in the near future they should make it very clear that they are seeking reinstatement and not making a fresh claim. They have already met any normal residency requirements when the benefit was awarded and the DWP unlawfully removing the benefit in no way requires that they need to meet this requirement again.

Mr Cat

[Benjamin]

[quote user="dragonrouge"]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.[/quote]

Thanks for all of this information dragonrouge.

If this is to be the typical composition of a Tribunal then I cannot see how any of these three persons besides the Chair has any knowledge whatsoever on which to make a judgement.

The more I read of this the more I am convinced that this whole debacle needs an appeal at a general level rather than individuals having to argue their case in frint of a Tribunal. Is there no way of refering it back to the ECJ for clarification of the UK Government's interpretation?

[grecophile-2008]

I put my submission in to SOLVIT on the 27th April and am waiting for them to get back to me. I will keep you posted.

[dragonrouge]

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?

[Tony F Dordogne]

Hi Grecophile

Have you submitted a personal question about your specific case or are you asking about a prticular point of law that may effect the whole of the claimant community?  If it's a query about the 26/52 day rule, I wont bother but if it isn't I will - if you see what I mean.

[grecophile-2008]

Hi Tony,

I have submitted it as my case but based on the 26/52 week rule and the time limitations placed on putting in requests for reinstatement. I have used the arguments about the ECJ ruling being a fundamental and prime document and that the DLA are trying to force fit existing rules and regulations into it which are subservient producing illogical, unreasonable and irrational decisions by the decision makers.

In this instance a numbers game might be useful to make SOLVIT realise that many are affected, not just a few, and thereby act jointly for us all. All of the action, whether it is from France, Greece, Spain etc will be channelled to the UK Department of Trade and Industry in London as we are all complaining about a UK organisation..

 

[Tony F Dordogne]

Happy to help then :)

[stewdowney]

Hi Tina

I am new on this site but Tina knows me from putting messages on her own website.

I totally agree with your last paragraph the ECJ was brought about firstly for and by people that have lost their benefits when they moved abroad and secondly to helps others that would follow.

The DWP is playing the old heads i win tails you loose with the date of entitlement and 26/52 week criteria.

Keep the pressure on

Stew

 

[dragonrouge]

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

[dragonrouge]

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.

[stewdowney]

Hi

I have just had a quick look at the two memo,s the first thing i noticed was that paragraph 15 has disappeared under the ECJ ruling heading.

In the first memo of para 15 section 3 it states that the claimant no longer has to have been in GB for at least 26 out of 52 weeks.

I might be wrong but to me they started moving the goal posts then, more ammunition for tribunals

Will keep looking.

Stew

[grecophile-2008]

As we are beginning to go down the appeals route then I would like to share my experience of 2001 in relation to the findings of the tribunal. I asked for a written statement of reason even though I won the appeal on behalf of my husband. It was a good job I did because I discovered that the DLA intended to appeal the tribunals decision. When I received the statement of reason from the Tribunals Service I found that a "not" had crept into the transcript making it read that my husband "was not eligible on the grounds of supervision". I asked for a correction within the prescribed timescale and this was done by the Tribunals Service. Had I not checked the documentation carefully then this may have caused me problems in the event of the DLA acting on their verbal intent to appeal the decision. As it was the DLA backed down in the end and complied with the award given.

[Tony F Dordogne]

Sent my query to SOLVIT, slightly reworded to reflect me not yet getting my letter of rejection but there being every indication they will hit me with the 'no appeal' and residency rule.  Interestingly, not got a reply to my last email either yet tho they have read it so I'm assuming they've sent my file to the decision makers and they will deal with me without defining what the difference between re-instatement and new claim is.

I've also included an amendment to SOLVIT asking whether there is any scope within the decision to look at whether the payment of newer claimants who moved to Europe after the ECJ decision is discriminatory in any way under EU legislation - after all, if the original decision was meant to cover the previous claimants and it doesn't but it does apply to paying benefit to the post-ECJ movers,, can the EU see discrimination in it.  Just another way of hitting the DWP really if there is any mileage in it.

Bet some smug b*****d DLA lawyer really thought he'd got them out of a hole on this one with the residency and appeals rules - No 1 rule of deciding the balance of making a decision that can lead to a campaign is never upset women and wrinklies, if you do and they get organised against you they have the tenaciousness and life skills to make life bloody miserable for you.  Pleased to oblige!

 

[Tony F Dordogne]

Just a thought about something that has sort of dropped off the table.  The Age Concern victory on AA clealy kicked the 26 week rule into the long grass.  It DLA and AA are to be regarded as the same sort of benefit and therefore should be treated the same, does that mean that in our appeal letters we should quote that decision, making the ExpoTeam/DWP arguments even more illogical?

[grecophile-2008]

Hi Puzzled,

I think ACE stands for Age Concern England. I have already put in a request for information but have heard nothing to date. Again, the more people who ask the better likelihood of getting an answer. The e-mail address is [email protected]  I think you may have to be specific in your question in that you need the information for appeal tribunal purposes where you think this has created a precedent.

I have also tried to get the information out of the British Legion which is where I found the information originally. Even though my husband is in receipt of a war pension I am having difficulties battling through their system in trying to get the details.

[lorna]

A few days ago I came across a uk based forum for disabled people - youreable.com. There is a forum section on benefits and appeals. The moderators for those sections seem to have specialist knowledge and are often very helpful. There are a lot of interesting threads and some first-hand experiences of appeals. I thought this might be worth browsing for those who are challenging and appealing. Perhaps there are some useful contact there?

The following thread has excerpts from and references to a tribunal hand-book. It also has a post from a forum member who offers help making a claim for DLA.

http://www.youreable.com/forums/thread.jspa?threadID=59492&start=15&tstart=0

There was one thread from an expat which was locked by the moderators when an argument started up.

[Scooby]

A good site for court decisions, ratio decidendi  etc is www.bailii.org.  Decisions are normally posted pretty quickly.

[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!

[Tony F Dordogne]

Good evening folks

Well, finally got a reply to my email of 22 July and here it is - it may inform some of those about to go to the Tribunal as to the DWP ExpoTeam's thinking - I use the word loosely.  Sorry it's a bit long but it's worth sticking with it - and what was that about using the AA case as a guideline on the 26 weeks rule, as if ............

And guess what, we're not supposed to share the information with anybody else - and the views of Wendy Kettle do not necessarily reflect the views of the DWP - now that's even more interesting!

Thank you for your email dated 22^nd April 2009,

You have asked for the definition we are using of the word reinstatement. We consider people to be seeking reinstatement when they have previously had entitlement to DLA or AA which was disallowed following a move to another EEA state or Switzerland. However when people are seeking reinstatement we must first consider whether we are able to look again at the decision we made to say that someone was not entitled to their benefit because of this move.

UK law allows a one month time period for customers to appeal against benefit decisions, with discretion to extend that limit by a further twelve months giving thirteen months in total. In some circumstances, for example where there has been official error, it is possible to appeal outside of these timescales.

Decisions made before the ECJ ruling on the 18^th of October 2007 cannot now be revised, outside of the above time limits, because it was not until that court ruling that these decisions were shown to be errors of law. This means that we will only be able to consider customers’ entitlement from the date that they write to us and ask us to reconsider their position, unless they appealed with in the time limits.

Where customers did appeal, we are unable to reconsider decisions made by an appeal tribunal and we will only be able to consider customers’ entitlement from the date that they write to us. Customers will have received details of what to do if they disagreed with the tribunal when they received their decision.

This means that the earliest date these customers could be entitled to DLA is the date that they contacted us, asking for reinstatement. If the UK remains responsible for paying DLA, customers will be expected to meet all the other conditions of entitlement at this point, including the test on past presence in the UK.

Neither European Law on Social Security nor the judgement in the ECJ case change the fact that earlier judgements of the ECJ have recognised that provided that the Member States observe the principles of European law in their procedural rules on decision-making and appeals, it is open to the Member States to lay down specific time limits and other procedural requirements

The Department accepts that residence conditions on the payment of disability benefits must be set aside following the judgement and accordingly it is not applying the domestic entitlement conditions of “ordinary residence” and “presence” 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.

We have asked about time that you may have spent in the UK so that we can consider whether you satisfy this test, which in the UK must be satisfied on every day of a customers claim, but has been amended for people living in other EEA states so that it only needs to be satisfied on the date on which entitlement to benefit can be established (as explained above this is likely to be the date that we were asked to consider reinstatement).

I trust that this answers your question.
In order to progress your case further, can you please advise us of the following:-
1) Have you been resident in the UK 26 out of 52 weeks for any period from 25/04/07, which is 26 weeks prior to your first contact?

2)  If yes, please provide details of  where you spent the time,  the dates and why you were there.
Please can you supply this information to us within 2 weeks. If we do not receive this information, the Decision maker may make a decision on the information available. Once a decision has been made, you will have the right to appeal.

Yours Sincerely

Wendy Kettle
Exportability Team Leader

 

   

 

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