DLA some movement

[Tony F Dordogne]

From what I read, this judgement is related to those people who tried to export their benefit when they moved to France but were prevented from doing so by the rules as they were then applied and I shall appeal on those grounds.

And, there is also the UK's fallback position that claimants must fulfill the residency criteria to start a claim for the benefit, rather than apply for the benefit to be reinstated on a point of law or judgement, so people already here may not be able to claim retrospectively.  Carole, I would have thought that if you're getting those benefits and are already on an E121, you might be better off applying for disability registration here.

I'll ring the DLA office on Monday and ask what I should do now - let's see what 'archived' means!

[Llwyncelyn]

Hi Sorry I had to rush off last night domestic upheaval involving animals.

Having read the judgment I think as does Tony that only part of DLA is capable of being exported and even now HMG does not truthfully have to follow it and indeed in the past there have been elements (as have France) of totally disregarding judgments.

I am going to read the judgment again later today do some research (Non means tested benefits 2006 Thompson Sweet and Maxwell which is the bible on such matters) and see where that takes me.

My view of all of this is that those of you who had the benefit (in whatever form and that is for the sake of avoidance DLA only) and this was then ceased on moving to France get an application pack from Blackpool.

Be very careful and if you have any copies of previous applications make sure that the story is a continuing one and that (and please forgive me) that there is continuity in your arguments.  If I were a betting man I would say that perhaps you will see some early signs of saying 'No' purely on the DLA front and that only on medical related grounds. I tend to be a cynic in such matters but if DLA was awarded in the past they really would be insane  now to say no.

If they say no then its to the Tribunal but I do not think it will get that far.

The overall cost to HMG is not even worth considering so its policy as against monetary considerations.

My view is to all of those who as I say lost the award on moving here to France is to set up the process once more.  Application pack (perhaps some details from your French medical history) plus a covering letter.

The letter should obviously be by recommande avec accuse de reception and should be plain and simple.

Perhaps something like  ' In view of the recent decision of the European Court of the............and which deals specifically with the concept of DLA payable in European Member countries I now enclose etc etc.

This letter together with the application pack has been send by International Recorded Delivery with a signature being needed (This sorts out the statement 'never had it') so its a presumption that they have had it.

The relevance and importance of the judgment is far-reaching and of considerable importance to myself as of course DLA was originally payable but ceased on my move to France in..............................

If my reading of the judgment is correct then DLA is payable to myself from .....................and I look forward to the payment of the arrears portion into my UK bank account and details of which are obviously in your possession as well as confirmation from you when this has been achieved as well as details of the commencement and payment of the new award.'

 

We all put letters together differently but try to encompass the above points and it would not be right for all letters coming from France to be somewhat stereotyped.

Finally my view is that only those who were awarded DLA in the UK can benefit from the judgment.  Those of us who are now resident in France must utilise the French system or go back and to see if you qualify!  However perhaps that is a step too far.

Again a just a small point those who can truly point to say a drug being available in France and which is means tested or NICE protected in the UK may equally try to argue that point or that facilities and the availability of facilities are here in France but not in the UK.

Hope this helps.

 

[Llwyncelyn]

Rides, as we email each other I bet that Blackpool are just wondering what to do and taking advice from those nice guys in Whitehall.  Policy will take some time to evolve so just keep at it.

Again Chairs of Tribunals are Lawyers and will have the book I suggested in front of them.  Not sure if abstracts of it are on the net?  They will struggle to work it all out for its new european law and these Chairs are paid nicely thank you so all of this will as I say take a little time.

Its a high cost book and its forgive me in legalise so I would not bother with it. Its difficult even for me sometimes to understand it.

Keep copies of everything and everything by recommande avec accuse de reception.

Normally law is never retrospective being considered bad law.  But this is different and there is a cut off point when people moved.  That is the argument for if you have been here for say two years or more the monetary considerations are large.  Please forgive me this money is absolutely due to those who are suffering and with the award making their lives easier to live.  That is the only concept that drives me.  It is not for jollies but to make life bearable and I will continue to argue that point for however long it takes.

 

Take care

[Rides]

Despite the fact that only the Care Component part of DLA looks as if at last it will be reinstated - (I only received the Mobility Component as I was too stubborn to apply for the Care part)  - I have now completed the appeal form sent by DWP and it is winging its way across the sea as I write.  Unfortunatley my appeal is being sent 4 years after my DLA was stopped so I will lose out on all fronts by the look of things.  I'm not despondent though as the more pressure put on the DWP the better for all in the long term.

Perhaps the Mobility Component will be reinstated during my lifetime - what's left of it. 

[Tony F Dordogne]

Puzzled, how long ago did you stop getting DLA?

[Tony F Dordogne]

Right, for the second time, I'll try this again:

Not long been off the phone with the DLA Office and their operative has said 'the rules are currently being rewritten but we don't know whether DLA will be back dated and if it is, how far'.

On the subject of appeals, there is a blanket stop on appeals after 13 months and there seems no indication that this rule will change.  So, all previous claimants will have to submit a new claim UNLESS they have left the UK in the last 13 months.

I'm suggesting the following - under 13 months, appeal.  Over 13 months, submit a new claim with a covering letter, plus ANOTHER letter appealing the original decision so they can't then say - 'we'll allow the new case but as you haven't appealed, you loose back benefits'.

And of course, the residency rules ensure that people who LIVE in France and have never claimed DLA from the UK remain unable to do so - to claim/appeal you have to have received the benefit in the UK prior to moving here, same as all the other UK benefits.

I've also contacted the Medical Benefits Section (the bit that issues the E121s) because the logical extension of the decision is that if DLA is a continuing and exportable benefit, recipients who do not receive IB should be issued with an E121.

The DLA Office staff have been asked to log details of those people making enquiries about the benefit.  So folks, on the phone, ask for the forms and register your details - as with the other health matters we're dealing with, let's get the campaign going now - it doesn't apply to me, I get an E121 anyway even tho I'm a mere youth but we may be able to help each other with this.

[Tony F Dordogne]

OK, have spoken to an operative at the Medical Benefits Section in Newcastle today.

She confirmed that anybody with either a lifetime award of DLA OR a claimant who was receiving DLA PRIOR to June 1992 AND was receiving the higher level care element of DLA prior to their leaving the UK for another EU country would have been issued with an E121 had the MBS been asked to provide one.

The current position regarding DLA and the recent ruling is that the whole thing is being reviewed in light of the AG's decision but she agreed - not to be taken as gospel etc - that if IB is exportable and attracts an E121, then logically DLA, if exportable, should attract one also.

But it's a government department so who knows what their logic is - or isn't come to that.

My suggestion is - get the appeal and new claim in asap and if the DLA is awarded for the care element at any level, if you don't have an E121, bang in for one immediately, if you're on an E106/8/9 it may seriously harm your bank balance not to do so.

[Llwyncelyn]

Dear Tony well done superb piece of work

 

rdgs

[ebaynut]

I have also spoken to DWP medical benefits (E forms team), and also the DLA unit at Blackpool, and they confirmed pretty much everything that Tony F has already said.

They also said that it would take appoximately 14 days to clarify their position from the EU judgement, which was 7 days ago, so we should know something for certain very soon, and they would post this information on their web page as soon as it is available.

[Llwyncelyn]

If anyone comes across an argument from the DLA guys such as ' your appeal is out of time' 'delay is something that the procedural rules does not allow' or anything else along those lines please just pm me.

Last week in the UK I won a case albeit in the civil division as to delays prejudice and out of time that sort of thing.  Whilst strictly procedural and under County Court rules I still argue it applies to Administrative Law and which is what basically DLA falls under.  Those purists will say Constitutional Law.

But for delay look at Thorn Plc v McDonald and McDonald and the cases it has spawned.  For 'v' do not read versus it means 'and'

kind regards

Another case is the Mortgage Corporation one and which if you google you will find quite easily.

I do not want to confuse matters but just pointing you towards delays as to appeals and the like.

If you have any problems then please just pm me and if I can be of help then of course I will gladly do so.

regards

 

 

[Tony F Dordogne]

Just to keep abreast of things DLA, has anybody had a response to their application for DLA under the new European ruling?

The DLA web site hasn't been updated and I'm wondering whether they're waiting to do a cost-benefit anaylsis.

[ebaynut]

Tony,

I phoned them yesterday on their freephone number, but was told they were still working it out, and that there was no further news as of yet. They again stated that any updates would be posted on the website.

 

The wait goes on............ [:@]

[ebaynut]

Have just come across these links, thought I would share them.

http://www.french-news.com/content/view/1708/228/lang,en/

http://ukonline.direct.gov.uk/en/Nl1/Newsroom/DG_071034

Not new 'news', but it does provide some further contact points.

[liberty]

Hi,
I am actually living in the Netherlands. I had to leave the UK suddenly in 2002 and didn't have time to apply or wait for my  DLA award outcome. I was told that the Netherlands had an agreement with the UK, although on arrival here found that there were no benefits available. I could claim if I became disabled here if I had been working and that would be through my employer, but I had become disabled before I came here.

I was wondering if from what is read in the legislation the new ruling will allow people with a disability who were not previously in receipt of DLA able to apply?  I assumed that people who were in receipt of DLA before 2002 would still be in receipt of it? if others move from the UK they will also be able to keep their DLA. Unfortunately what happens to the people who are stuck in those middle 5 years? we simply get no help at all, just seems very unfair.

I'm literally stuck in my house every day staring at 4 walls. Things are so bad that I'm considering  returning to the UK to stay with family as my quality of life is no fun at all here.

 

[ebaynut]

Hi Liberty,

As I understand it, you have to be a resident of the country in which you claim any benefit, in order to be eligible for it, and some of these benefits are exportable should you move overseas. Therefore you would need to make a claim in your current country of residence for any similar benefits that they may offer their citizens.

This legislation deals specifically with people who were resident in their original claiming country at the time of the claim, but who have subsequently moved elsewhere within the EU, and who would have lost their right to the claim, as it was categorised as a 'special non-contributory benefit' (not dependant on NI contributions), and not a 'sickness benefit', which could be exportable.

This ruling seems to mean that if you were already in receipt of DLA and then moved, subsequently losing the benefit, you may be able to reclaim your lost benefit.

(ONLY the 'CARE' element of this benefit, would seem to be exportable)

If you should return to the UK as a resident, where this benefit is available, then I believe that should you then move elsewhere, you could take the benefit with you.

Afraid I can't help you on which benefits are available in the Netherlands, but I understand that this ruling was in direct relation to a claim from a dutch resident appealing the exportable application of the original legislation.

You may find these links helpful

http://www.completefrance.com/cs/forums/1024385/ShowPost.aspx

http://www.completefrance.com/cs/forums/947558/ShowPost.aspx

[Tony F Dordogne]

Hi Liberty

To export the benefit under the old - unlawful/incorrect - regulations, you had to be in receipt of the benefit before 1992 and to be in receipt of the higher rate of care element which means you would have qualified to export the benefit with you.

If you made a claim prior to moving to Holland I would suggest that if you were given the award (and assuming that you have the paperwork etc etc) and then you were unable to access it after you moved to Holland, you should certainly submit another application form and then appeal the previous decision.

However, if you were not awarded the benefit prior to moving to Holland - i.e., it was not awarded at all - then you will not be able to claim under current legislation nor under the recent ruling because (a) you are outside the appeal time (b) you do not meet the residential criteria to claim the benefit first time round.

Effectively, if you're not a UK resident and you weren't getting the benefit or had been awarded the benefit but didn't receive it, you can't claim now.

If your disabilities are so bad, I would speak to the local Dutch medical and social services to see what they can do to help you.  A return to the Uk may be your best option I think.  

[liberty]

Thank you for the replies.  There are no benefits in the Netherlands similar to DLA unfortunately as all benefits relating to disability seem to be based on employment here.   I think I have no option but to return to the UK, It just seems sad that I will have to leave my husband behind, although, at least I am lucky that I have family that can support me.  I wish I had been given the correct information before moving here by my local DWP dept. Even now when I have telephoned I am still told that the Netherlands has an agreement with the UK.

Thanks for the replies.

 

[ebaynut]

Liberty,

Have pm'd you.

[liberty]

Does anybody know the position a person is in if they return to the UK.  My reason for asking this question is that a few weeks ago I wrote to a local benefit dept about returning to the UK and claiming DLA.  On the telephone, before writing I was told that as I had been out of the UK for 5 years that I may possibly be unable to claim for some months if I returned and that they are looking into this query.

I have waiting over 4 weeks for a reply and I phone the dept each week. Each week I am told that the person dealing with my letter has been too busy to ge around to it. I was wondering if anyone knows the answer to this question? Can i claim straight away? or are there any rules about having to wait?

I have read some info on the DWP website which says, quote: It mentions this in relation to many of the benefits, quote:

You may be treated as having lived in Great Britain, Northern Ireland or the Isle of Man if you have been living in a country in the European Echonomic Area or a country that has a social security agreement with the UK.  

But it doesn't state which benefits? and is pretty unclear.

Thanks

Liberty

 

But thats about all the info i can find.

 

[Tony F Dordogne]

Liberty, you're speaking to the wrong people if you're speaking to a local DWP office, you need to speak to the DLA central office.

You are not a resident of the UK and to claim DLA you will have to be resident in the UK, I think it's for 13 months - the same as not being able to appeal after 13 months and there are residency rules which you will have to meet - again, speak to the DLA direct, not the local office.

You seem to be saying that you have been inactif since you have been in Holland, that is you haven't worked and that your husband (is he a Brit or Dutch?) has been working.  If that is so, you may be entitled to the Dutch equivalent of an E106 which will give you some cover in his name if you choose to return to the UK.

And it's nothing personal about responding to letters and getting agitated about getting a response will only get you further down - at the moment the backlog at the DWP exceeds 4 months!

Ring their headquarters and get definitive answers, not from local offices.  Ring the overseas department of the DWP and speak to them about possible benefits though to be honest having been out of the UK for 5 years, I think you may have to requalify through employment or NI credits unless there is some way of using your husband's working status to your benefit - and I think you should find a site for the Brits in Holland, Holland and France have different approaches to health care and the EU regs are 'fluid' to say the least.

[liberty]

Tony, My husband is Dutch, and is self employed here.  Would this form apply to him? He does pay alot of taxes here.   My husband also lived in the UK for 5 years before we moved here and also has a national insurance number. But, his taxes have been paid to the Netherlands.

 

 

[Tony F Dordogne]

I think it does, the E106 is - as far as I know - a Europe wide form.

But it should cover you back in the UK if it is appropriate.

You really need to speak to DWP - but almost certainly it will mean returning to the UK to get benefits - or the Dutch authorities because if he's always paid his taxes in Holland and you're married to him, my limited understanding is that you are entitled to benefits there.

[Gardian]

Just a word of thanks to you guys who have been pushing on this one. As a result of the info, I have submitted an appeal on behalf of OH to the email address provided on one of the links.

I appreciate that it'll be a while before we hear anything, but well worth 20 mins effort. I'll post back if any news.  

[Tony F Dordogne]

Gardian, not wishing to appear difficult but unless your OH has signed off on the original forms that you will deal with her case, she needs to send the appeal herself.

And I'm told they will not accept an appeal in this way - if your appeal is for a termination of benefit more than 13 months ago (the usual appeal time limit) you need to submit another new form together with an appeal in writing, by letter, the email could come from a Ghananian scammer for all the DLA office knows.

If you don't submit a new form, you're OH's case is likely to be 'archived' by now and cannot be used, see the comment about 13 months. 

[Gardian]

Tony ............

Be assured that the appeal came 'from her'.

Anyway, we got this more-or-less immediate reply by email:

Thank you for enquiring about the recent change in European legislation.

The Court has decided that DLA/AA/CA are incorrectly listed in European Legislation – in other words, that they fall within a group of benefits which must, in certain circumstances, be paid to people who move from the UK to live in other EEA states (or Switzerland).

The precise implications will not be known until the judgement has been fully considered, which is likely to take several weeks. Until we have studied the terms of the judgement, we will not know who, if anyone, may become entitled to benefit as a result.

You will  be contacted at a later date.

 www.direct.gov.uk will be kept updated with all the latest information.

 

So, let's see.