26/52 Week Rule Qualifying Requiremnets

[Benjamin]

As Mrs Benjamin's situation seems unique amongst current forum members (she has never received DLA) we have decided to seriously look into what is required under the 26/52 week rule.

An email has been sent to the Exportability Team asking them to state if there are any other conditions apart from a physical presence in the UK and a reply is awaited.

We initially thought of simply returning for a six month stay but we didn't fancy "undoing" ourselves (tax, health etc.) and then getting into the UK system again for the stay and then having to reverse all of that when we returned home. We've decided to break the 26 week requirement into two lots of three months or even three lots of two months.

If we get the timing right I will be OK for my French prescription and by the Autumn Mrs Benjamin will have finished her present course of day patient treatment. The French EHIC will suffice for any emergencies.

We will remain fiscally resident here by spanning two French tax years and we can use our car for up to six months in the UK subject to the agreement of our French insurers.

With a new grand child due in November our visits will not be onerous. [:D]

Can anyone think of anything that we have missed that will cause us problems?

(Note to Mods: I've purposefully started a new thread. If you feel it's more appropriate to be included in the current DLA one, then please merge it)

[Tony F Dordogne]

I think the problem you may have is the competant state argument, as you're obviously doing everything you can to maintain your French residency status, France is now likely to be your wife's 'competant state', not the UK.

To be absolutely honest, I don't think that the change in regulations post the ECJ ruling is supposed to cover people in your position, surely you should be claiming benefit here unless you have any sort of link to the old DLA system, I can't remember whether you previously claimed and it was rejected or this is a whole new claim.

 

[Âme]

Benjamin - presumably you have read the eligibility document HERE, which runs to several pages. 

I would agree with Tony, re: claiming in France, certainly if you've lived there for more than five years. However, DLA is unusal in that it is not means tested. I'm not familiar enough with the French social security system to know if there's an equivalent to DLA but if you're struggling to survive, then the CAF would be able to orient you towards some help. Alternatively, talk to the MDPH as I know Mrs B already has a dossier there.

Good luck.

 

 

[KathyC]

We're in a similar situation and have corresponded with Benjamin about it. My husband would've been eligible for AA from about 6 months before we left the UK but as it was  non exportable, we didn't bother applying! We put in an application when all these changes became public but found we'd left the UK 3 months before the relevant date so are unable to comply with the 26/52 rule. We seem to have missed the boat twice!

At the moment I'm trying to find out how they assess living in the UK and/or how they would know whether we'd been back for a couple of longish visits after we became resident here. Other than that it's going to mean waiting a couple of years (I hope it's as long as that) and claiming under the special rules.

Regarding claiming from France, I was under the impression that these sort of benefits were means tested here. Although we have two teachers' pensions, we also have a mortgage which, I believe, isn't taken into account.

I appreciate that our situation is unusual but I'm open to any suggestions as to how to proceed.

[Benjamin]

Âme

Thanks for the link and for your kind thoughts on comparable benefits available in France although we wouldn't qualify on a means tested basis. We also don't feel we qualify on a "what you've put in against what you can get out" basis.

Tony

I have the greatest sympathy for people in your position who are now having to jump through hoops all over again but as far as I am concerned I can't see why you feel that the ECJ ruling shouldn't affect someone like Mrs Benjamin. On the basis that the UK is where we paid the greater majority of our taxes (and still do in dividend income on undrawn pension funds) we feel perfectly justified in claiming if this falls within the legal bounds for doing so.

I am still waiting for a reply from DWP to my email sent last week asking for the rules concerning the 26/52 week requirement as that will probably determine our eventual decision.

On a slightly lighter note isn't it funny that our claims are based upon the law but MPs' are based on guidelines.  [:D]

 

[Tony F Dordogne]

[quote user="Benjamin"] I have the greatest sympathy for people in your position who are now having to jump through hoops all over again but as far as I am concerned I can't see why you feel that the ECJ ruling shouldn't affect someone like Mrs Benjamin. [/quote]

Benjamin, it's not that I feel that it shouldn't cover Mrs B, I just think that it doesn't cover Mrs B, I have no opinion whether that is right or wrong.

The ECJ case was bought by people seeking reinstatement, and as far as we know having taken legal advice, not by people seeking the benefit having not received it previously.  What you are suggesting in your original message is that any British (and perhaps EU) citizen can go to the UK (the tax comments do not affect anything here), stay there for 6 months, technically qualify for and obtain DLA and then leave the UK, taking the benefit with them.  One of the early arguments by the ExpoTeam was that they were seeking further advice from their lawyers and the ECJ which would specifically prevent people doing what you are suggesting you might do and I would suggest that you speak to somebody in the DWP before you try this one.

What we are doing is seeking reinstatement of a benefit that was, as we now clearly know and have an reinforcing Tribunal legal decision to support the loss of the mobility part of DLA benefit, lost under a bad UK regulation under the umberella EU law.  What you are suggesting may be allowable under the law, if your wife meets the other criteria for obtaining the benefit whilst you are domiciled in France and you are ensuring that you maintain that domicility in France whilst a temporary resident in the UK. And of course, failing to declare that you live in France may well lead to having to pay the money back if they ever found out that you had made an incorrect claim.

I don't think that anybody who receives or received DLA would, for one moment, begrudge anybody receiving the benefit if they qualify, especially if they had the benefit illegally with held by the UK government.  Other users of this Forum may not agree.

 

[dragonrouge]

Dear Benjamin only your mind will tell you in the finanl analysis what to do. However if it were me and certainly it is not what you have in mind let us say at best does not match the spirit of the law. You will have once more to try to establish a UK identity and then if successful reverse the process.

Whilst currently I have placed a low value on the DWP/DLA guys there are no ones fools and I think you will come unstuck and may have to pay for this error of judgment.

But it is not my call it is yours.

Think about the MP's who flipped first and second houses to avoid (note the use of this word) CGT. Your approach is way down the list when compared to what they did but as I say its nothing whatsoever to do with me.

What is to do with me is not to establish for those on this forum an entitlement to DLA is to obtain reinstatement of what was already granted and then taken away for we dared to move that fifteen miles across the channel. Simple really.

There might be those on this forum of disagree with the benefit system and see all of those who have need of it in one particular light. They are not!

[Benjamin]

Tony and dragonrouge

Unless I'm mistaken you're playing the ethical/moral/honesty card in a very gentle way.  [:D]  If it gets that far (still waiting for DWP to answer the email) it is important to us that our consciences must be very clear before we decide to move forward.

As an aside, we are only doing this as Mrs Benjamin is so incensed by the actions of a minority of the UK politicians. Her initial reaction to the 26/52 week rule was that it wasn't worth the effort but the tabloid revelations have changed that considerably.  [:P]

Thank you for your observations.

[dragonrouge]

Dear Benjamin I have been absolutely amazed at what I hear on a daily basis. I feel strongly about it too and we keep on hearing that the best way to punish these guys is at the ballot box. I do not think that would work.

I tell you what will work and what will concentrate the mind is for someones collar to be felt.

You know that I am in the law and my best friend is a very senior and recently retired police officer SB and all of that.

We chatted for hours the other day on the question of having claimed for interest on a mortgage when there is no mortgage.

He would interview and charge and I would prosecute. We think five years. Why does someone not have the wedding gear. Please believe me an interview room for eight hours without light is unpleasant but not as unpleasant as the things we are seeing and hearing.

[Tony F Dordogne]

[quote user="Benjamin"]  As an aside, we are only doing this as Mrs Benjamin is so incensed by the actions of a minority of the UK politicians. Her initial reaction to the 26/52 week rule was that it wasn't worth the effort but the tabloid revelations have changed that considerably. [/quote]

But surely, to maintain the moral high-ground 'flipping' your home to obtain DLA is doing exactly what they have done AND it would open you up to charges of health tourism?

[Benjamin]

Flipping 'eck Tony you've spotted what we're up to.  [:P]

Now that Dave's opened the lists up again I thought I might practice a little and then, when I've got the experience behind me, see if I can be adopted.   [6]

[Benjamin]

This is a copy of an email sent to the Exportability Team on 21 May.

"Apart from being physically resident in the UK for 26 weeks out of 52 weeks before you can export DLA to another EU State are there any other criteria applied by DWP e.g. being in the UK tax system, owning property etc. etc.?"

This is the reply received last weekend.

Criteria

 

3. If a person

leaves Great Britain to live in another EEA state or Switzerland and they are

not entitled to a sickness benefit or incapacity benefit from that country and

do not intend to work there, they may continue to receive their AA or DLA care

component as long as Great Britain remains responsible for their claim i.e. GB

will remain the competent state if:- 

 

i.    they are in receipt of

qualifying contributory benefits i.e.

     

State Retirement Pension or

     

Incapacity Benefit (long term) or

     

Bereavement Benefits

 

ii.    or they are covered by

national insurance contributions in relevant           income tax

years to entitle them to benefits such as:  

   

   Incapacity Benefit (short term)

     

Healthcare cover from the

UK.

KIV – In these

cases the award will end when the customer’s national insurance cover ends.

 

         

iii.   or those working in GB but living in

another member state 

        

 Unless

o       They work in another member state;

or

o       They are entitled to a benefit from another

Member State;

or

o       In certain circumstances, they are in receipt of an old

age /invalidity pension from another member state.

 

iv.               

Or family members

of groups (ii) and (iii) above unless the family members are entitled to a

sickness benefit from another member state in their own right.  By

family member we mean a spouse, civil partner or someone who is dependent on a

member of their family.

[Benjamin]

Having cut and pasted the Exportability Team's response I was unable to add any further comments so this posting should be treated as a continuation of the above posting.

As far as I can work out Mrs Benjamin would qualify by reason of receiving a State Retirement Pension from the UK and receiving no other benefits from any other country. This I believe makes the UK the Competent State. If anyone with a more trained legal background than mine wants to comment on this point it will be appreciated.

Whether or not we bother to physically satisfy the 26/52 rule is still being discussed but this point may help others to make a decision.

[dragonrouge]

Dear Benjamin my reading of the response is to say that DLA et al is exportable and the UK is the competent state etc etc.

However I suggest that it is that these benefits 'may' be exportable and I read this as though one must have already had an award.

After what I am now seeing elsewhere I am beginning to think that we should all set up a camp at Folkestone stay there for 26 weeks get the benefits allocated and then come back here to France.

Benjamin we too are in the South Vendee and the weather is good is it not?

[Benjamin]

dragonrouge

Thanks for your opinion.

The weather is not exceptionally good but just what we expect for this time of year. I know the last two summers have not been good but this is more like normal. A bit cloudy towards the weekend and maybe a shower or two to help the gardens.

[Tony F Dordogne]

[quote user="Benjamin"]  Whether or not we bother to physically satisfy the 26/52 rule is still being discussed but this point may help others to make a decision.  [/quote]

Under some circumstances the past/presence rule has already been found to be unlawful (Mr Justice Mesher's decision in the Upper Tribunal of 5 May 2009) but I don't think that it covers the circs of Mrs Benjamin.

Benjamin, speak to Age Concern England's Income Benefits and Finance section, they may be able to give you better advice.