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Llwyncelyn

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Following on from my previous posts I came across a precedent set by the Appeals Tribunal on the British Legion website. It states:

Exporting Attendance Allowance

 

 

On 5/12/08 ACE successfully won a tribunal hearing with the Commission for Social Security in favour of our client (appellant) to export Attendance Allowance (AA) to France.

 

The 80 year old client was previously in receipt of Attendance Allowance for a number of years whilst resident in the UK.  However, in March 2007 the client decided to move to France to be closer to her son and daughter-in-law her, her AA was stopped because she was no longer ordinarily resident or present in the UK.

 

Despite an earlier judgement following the Commission of the European Communities v the European Parliament and the Council of the European Union (C-299/05, 18 October 2007) to have AA re-classified as a sickness benefit, the Department for Work and Pension (DWP) continued to apply the previous ruling which classified AA as “special non-contributory benefit”  The importance of classification (as stated in EC regulation 1408/71) allows invalidity benefits to be fully exported, whereas special non-contributory benefits can only be paid at the claimants’ place of work residence. 

 

The tribunal hearing on the December 5th, concluded the original tribunal hearing and the DWP were in error, as European law had not been considered, and that in line with European Courts of Justice, case C-229/05 Attendance Allowance amongst other benefits is a “sickness benefit and not a special non-contributory benefit, for the exportability provision of Council Regulations 1408/71….”

 

The client is now entitled to receive Attendance Allowance in France, and this will be backdated to March 2007 (when she moved to France).  Since her condition has worsened her claim is being reviewed, to enable her to receive the higher rate at £67.00 per week.  If successful this will be applied from the date this tribunal hearing.

 

In closing the judge congratulated ACE on their “well researched submission” and the DWP requested a copy of the submission as guidance for future AA exportability claims.

 

This case was submitted by ACE – European and International Unit to the Commission for Social Security with support from Child Poverty Action Group and ACE -Information and Advice.

Has anyone seen a trancsript of this judgement and how does it affect claimants? Also what are the legal implications? -Any lawyers out there

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And that seems to beg the question as to when 'the date on which entitlement to benefit can be established' because from what the ExpoTeam are saying, it's the date on which we re-apply for DLA, not the date on which it was originally granted.

Unless of course the date of 'export', which is I assume the date on which any of us left the UK, over-rides that date.

Does ANYBODY have a clear idea opf what's happening now because I for one am getting mighty confused, it appears that there is a real division between what the Minister/s are saying and what the ExpoTeam are saying.

Edit:  Just pinged Wendy Kettle another (priority this time) email asking whether the reference and paragraph above negates Q16 of DBD990 and what "the date on which entitlement to benefit can be established" because this seems to wholly contradict what the ExpoTeam have told me in a previous email - like what is the date of 'export' because it appears to be the date you leave the UK, therefore the information I was sent that my date of eligibility is now October 2007 - when I reapplied- is a nonsense.

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I posted on this subject area seemingly now a very long time ago.  We left the UK in 2005 and my wife was in receipt of DLA having had to retire early and on ill-health grounds.  DLA was stopped but I appealed within the time limit and appeared in front of a Tribunal in Cardiff and as able to overturn the decision.  However my argument was not solely on the grounds of exportability and I do not think it would add anything if I were to outline the arguments here.

Again I am a lawyer and with a considerable interest in this area and indeed have appeared in front of many tribunals.

I have looked at the response from Jonathan Shaw and what you must all remember is that this guy is briefed by his Civil Servants and I would hazzard a guess that he knows little or nothing about the area.

However general principle is that Ministers are responsible Civil Servants must carry out the will not only of their Ministers but Parliament and of course apply the 2007 decision fact.

Another principle of English Law is that where there is doubt as to words within a paragraph or sentence those words must be construed with some common sense and to impart some form of acceptable meaning to their usage.

Thus take:

1) Residence/Presence tests not applied!  Thats logic to say the least for they are already in the EEA or on their way!

2) Now look at the words 'Export' and 'Entitlement to benefit can be established'

For 'export' I would read this as those who already have had their entitlement approved and in being for some time and the date of 'export' of oneself to EEA with DLA being the date that you left or are leaving the country.  Then those whose applications are in the process and if then qualifying on residence/presence test the date that one is due to or will leave the country.

'Entitlement to benefit can be established'  I say that 'can' should be read as 'was' and that 'export' should be read as the date that one left the UK be in 2003/2005/2006 or whatever.

Those of you who had DLA in the UK then left were either stopped automatically or indeed indicated to the DLA guys that you were leaving and then stopped.

Then in limbo until the 2007 decision.

I say the Ministers reply and the 2007 decision indicates that all DLA payments should be backdated to the date that one left the UK (as in Export) but this may be a hard battle to win for they are in Blackpool and we are here.

Tony and I are in contact through the gardening section and I will have a look at a few things later today and come back when I have looked at the huge book which covers non means tested benefits.

 

regards

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What follows has to be taken from the net but it does appear in my first year text book on Administrative Law (now out of print folks) as the Plain and Simple meaning test.

The basis is what the law says instead of what it means.

Thus what did the decision of 2007 say and its not the interpretation placed upon it by the DLA or the Minister which is important.  That is the distinction.

The Test is:

The plain meaning rule

Statutes'/judgments/decisions are to be interpreted using the ordinary meaning of the language of the s/j/d unless the s/d/j explicity defines some of its terms in otherwise.  In other words the law is to be read word for word and should divert from its true meaning.

 

So imagine this is a question on a first year law paper

 

Discuss the true meaning of the judgement of 2007 and in so doing apply the plain meaning test.

I shall try that this afternoon and see what that takes me.

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Just to remind you in case it helps and before I go (away for 2 weeks) - we moved in June 2008 - benefit stopped - applied July 2008 - benefit reinstated as of June 2008. Notified Jan 2009. More detail in previous posts.

Edit (28/4/9): Apologies but I made a mistake with the dates in this post. We moved in June 2007 and my benefit was stopped. I knew it would be and had informed the DWP of our move. My benefit has subsequently been re-instated and backdated to that date.

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And so say all of us Tina!

It's gone beyond disgusting, annoying, and downright illegal; and is now desk thumpingly annoying that we are being treated like ignorant illiterate peasants. We are not on our knees holding out begging bowls, we are real people with real entitlements which we are not only being deliberately deprived of, but being discriminated against by the very people who live on our taxes.

My OH had his claim form, duly completed and returned over 2 weeks ago, but have received nothing except the form. I have emailed the expo team but not even received a reply - not even a bog standard copy and paste from the website!

I was also told the paperwork goes to Blackpool, but the team are in Belfast, and the paperwork to us comes via Sweden!! What??? If there wasn't already a website called 'confused.com'......

regards

BBR

 

 

 

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[quote user="lorna"]Just to remind you in case it helps and before I go (away for 2 weeks) - we moved in June 2008 - benefit stopped - applied July 2008 - benefit reinstated as of June 2008. Notified Jan 2009. More detail in previous posts.[/quote]

14 month rule applies so Lorna's case would still have been on the computer AND it was AFTER the ECJ hearing so much more straight forward for the ExpoTeam to deal with.

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Perhaps we need to collectively - that is all at the same time - contact the Office of the Ombudsman to see what help they can give, I know that initially a complainant should go through the complaints procedure for the Department concerned but as I've been told that the DLA/ExpoTeam Office will deal with complaints, it's like asking them to investigate themselves.

Perhaps it's the Ombudsman next, to see if there's a way of making a complaint when we have no faith in the internal systems.

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I have read the judgment and the Minsters response and in my opinion (fww) I think it is simply a question when DLA had been awarded the residence and presence test had been complied with and export to be read as the date when one left the UK having complied with the two previous requirements.

Somewhere there is a list of the top guy in the DLA and I thought I had it but seemingly its in a box now back in the UK.  We need to know the line management responsibility for the guys in Blackpool for I truly believe they are sinking and they are there and we are here and email and telephone is quite simply a very good mechanism for hiding behind and saying no.

The Ombudsman will not hear you be it from a singular or class basis until you go through the Complaints Procedure which is truly in place to sort out problems or so we are informed.  Like Tony I agree that the DLA would investigate itself and thus whitewash.  For some time the Police investigated themselves no longer. Then the Bar no longer and the Solicitors for many years has an independent approach.

There is nothing stopping you getting a letter drafted and sent to the top guy in Blackpool or Whitehall which should be drafted in plain simple language and never threaten anything unless you are prepared to go through it.  The argument for this type of class approach is that it cuts down on endless letters emails and the like and could concentrate the mind.

I suggest that one individual can quite easily act on behalf of others but only on the basis that before anything goes to the DLA that everyone is in agreement and the draft is acceptable to everyone.

It does not need to be long just referring both to the Judgment and the latest response from the Minister and expressing in simple terms misinformation deliberate (alleged) misleading comments etc etc and applying the plain simple common sense approach.

However what sanctions could be applied if say you gave them four weeks (which is reasonable in law) to sort out the problem.  That is the sting in the tail.  Press TV and the Like Judicial Review but that costs.  Getting a UK solicitor involved that costs folks and todays troubled times they want money in the bank.

The class letter is simple enough but how can you bring this particular horse to water let alone make him drink.

I will think this through again and see if I can come up with anything

 

Best wishes

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I read a few weeks ago in the press that there was a new 'call centre' in Spain for reporting Benefit Fraud, with a report about people who have been claiming benefits using a UK address, mostly Incapacity Benefits, and highlighting names of fraudsters who were caught running businesses and working there when they were supposedly in the UK and unfit to work.

Just FYI

regards to all

BBR

 

 

 

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I have spoken to Wendy Kettle today who says they have finalised their guidelines and are about to put claims before the decision makers for those claimants who left England prior to the 2007 ECJ ruling. Don't get your hopes up. According to her, Tina's understanding of the "Plain Meaning Test" on entitlement, export and presence is not relevant as she has been given guidelines which do not agree with this -Miss Kettle has been told what the law is!!!!. Don't believe her. With regard to the appeals tribunal precedent of 5 December 2008 I quoted in an earlier post which was championed by ACE -she dismissed it as maybe the claimants situation had been different, the fact that it had been backdated to March 2007 was irrelevant. Don't believe her.

My understanding is that the majority of claimants are going to fail!!!!! Ms Kettle's implication.

 

Perhaps we need guidance on the appeals we are going to be forced to submit.

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Hi I have no wish to dispute what is being said or what Ms Kettle's views are but I am sorry but I do disagree.  We do not know what the guidlines are who drafted them and upon what evidence.  I say it is not what the law is it is what the law says two entirely differing issues.  However Ms Kettle might like to know that I knew what the law was in 2005 when I mounted the appeal for my wife and others.  The Blackpool people disputed it did not send a representative but provided a written paper.  I argued on points of law and the Chair agreed with me and Blackpool had the right to take it up the Court chain but saw fit not to do so. You must realise that whilst Social Security and related issues have their own law book all statute is capable of being viewed against other branches of the law.

Finally if you read the Connextion April issue you will see another viewpoint being expressed.

There is only one place that this should be decided in a Court and this case law stands behind it.

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Hi dragonrouge. You are fortunate with your legal background. I had already taken on board your comments and asked in writing for a copy of the guidelines but I doubt whether I will get one. I have also won an Appeals Tribunal in the past on behalf of my husband plus getting ex gratia payments to cover all my costs and for distress to him caused by the DLA's actions in not following procedure and forcing the appeal in the first place. I was just hoping I wouldn't have to go down the same route again.

Unfortunately it is Ms Kettle's views, and those of her colleagues, which are being forced on us -in what I can only presume is an attempt to get us to drop the claim. It is the impression Miss Kettle gives and not mine that the majority of claims will fail.

The aim of the post was to let people know what is being said and implied by the exportability team despite what their bosses the ministers are saying. If the claim form is sent in without any background "evidence", then they state under their guidelines it would be automatically turned down. Then they are playing the numbers game of expecting a percentage not ask for their claim to be reviewed, and then even more not going through the Appeals process which can be quite daunting for the uninitiated. I am relatively young and determined in fighting for my husband. Many do not have such a champion to fight their cause. By bringing the Exportability Teams actions into the open it hopefully forewarns others and then gives them ammunition to carry on fighting. The advice the Exportability Team is giving out is designed to prevent people from claiming in the first place -how many will this put off initially? I have been told ALL my husband's records were destroyed 13 months after we exported to Greece -this is a lie and when challenged that I knew it was a lie Ms Kettle continued to say that I was wrong.

I feel so sorry for those vulnerable expats who do not have someone explaining things to them as they are possibly going to lose out.

When in England I volunteered for a charity who helped DLA claimants and through it learnt a little of how to battle through the system.

The behaviour of the Exportability Team has to be brought out into the open so that hopefully they can be made to stop telling lies and disseminating misinformation. More grist for the Maladministration Mill.

Each case does have to be determined under its own merits but I do believe the better informed you are the better your chances of winning your claim.

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I am about to send completed form DLA EXP 1 along with a lengthy hadnwritten letter by our French GP (in French) and various UK consultants reports regarding my husband's health condition to DWA at Blackpool.   My husband's DLA benefit ceased when we moved permanently to France in 1999, but his health has deteriorated over the years and in her report the French Doctor has stressed several times that he requires 24/7 care.   My husband has tciked "No" to question 16, but does this mean that his claim will be automatically refused?

If we were resident in the UK we would be eligible for much more help, financial and practical, but very much we are all cases of "out of sight, out of mind".

It is excellent to read other peoples' experiences of dealing with the DLA, but I ask should we get together in our local areas to help one another with forms etc rather than having the possibility of a claim rejected in our case because of ignorance on my part.

Isobel

Dordogne

 

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Hi Isobel,

Firstly let me say I am not a lawyer and am not offering advice.

It is my opinion that DLA EXP1 form is not fit for purpose. It is designed for new claimants and not those asking for reinstatement , totally ignoring the fact that if you have already been granted DLA and continue to meet the critera then you already qualify if you live in an EU country. You are asking for reinstatement of that benefit,  not making a new claim and I shall be amending the title of the form to reflect this. The European Courts of Justice in 2007 made a judgement that annulled -retroactively invalidates - the special non contributory amendment put in place in 1992 , the law reverts back to position it was in in 1992 and the amendment never happened. In other words if it never happened then you should not have been subject to it and the benfit should not have been removed.  I am not going to tick yes or no to question 16. Instead I am going to write on the form that this question is irrelevant in light of the ECJ 2007 judgement and supply them with the date when my husband was awarded his entitlment, plus the basis on which his award was made and in effect ask for a continuance of my husband's benefit from the date when it was taken away. Again question 19 is an irrelevance as you have already qualified. If you look back at previous posts you will note that Tina has given a very succinct definition of the plain meaning test in relation to the entitlement, export and presence test.

"the date on which entitlement to benefit can be established" = date of receipt of confirmation that your husband was entitled to DLA 

"export" = date of leaving UK 

"presence test" being applied on the date of "export" = being eligible and in receipt of DLA up to and on the date of leaving UK .

I am not going to give them the opportunity of turning me down on a set of rules and regulations relevant to new claimants, not me. My claim for my husband has already been established and he has been given his entitlement certificate (1999 in my case). I will be supplying them with the relevant copies of paperwork relating to this but insist that they get my husbands file out of archives which contains the supporting evidence.

What you have to remember is that they will try every way possible to deprive you of your entitlement by saying you do not qualify as you do not meet their eligibility criteria for a NEW CLAIM. Keep reminding them it is reinstatement under the ECJ2007 law.

If anyone disagrees with my opinion or feels there is a flaw in it then no doubt they will post it on the forum. If I am told it is legally flawed then I will remove it as I have no intention of misleading people.

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Grecophile, no problem with the majority of what you say except their ability to get your file out of storage.  I have been told on 3 seperate occassions by the DLA or ExpoTeam that they do not have files after the claim has been closed for 14 months.  Whilst there may still be a computer record of your husband being a claimant - as there was for me - I was filed under 'inactive' and they had no details of my claim, how much I was paid etc.  They asked me to send them any supporting material that I had, which I did - notification of being awarded the benefit originally, copies of the letters which 'upgraded' me, the letter telling me that I had the benefit for a second term.

I would not be at all sure that they actually have your husband's records any more.

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If you believe that old files have been destroyed then you will believe anything.  They are duty and legally bound to keep files!

I live in the Vendee and my wife has fallen last week and broken her ankle but I will help in any way I can.

What really needs to happen is to put their interpretation of the judgment to the test and in front of a tribunal or some such body.

I still insist the the plain simple language test applies and if you look to the Minister and his response then I say the DLA position is untenable.

You could of course go for a Judicial Review of their decision in relation to the Court judgment but that takes at least £15K

A colleague or indeed myself would do the work for the cause on a totally free of charge basis but the listing costs for the High Court are huge and then if you win they have to again look at their decision but it does not mean that you have 'won' if you follow my meaning.

A thought here in a form of a fighting fund and which should not cost too much money.  Via a UK solicitor you could ask for an opinion of the judgment from a Barrister versed in Public Administration Law and ask him to consider the judgment against the approach of the DLA.  It might cost £1500 or thereabouts.

You have to have something to throw at them.

Tonight I will speak to a colleague on the point and refer back.

rdgs

 

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Just a note on costs. After I had finished fighting the DLA last time I went at them for maladministration. My costs for the services of a legal representative were reimbursed by the DWPalong with travel, telephone.........All I had to do was keep receipts. It was quite a simple process provided you have evidence.
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I agree none of us want to be in Royal Courts of Justice not just yet for it is a scary place and I have been there once and in front of three Law Lords who really were sharp.  You know Winchester or Oxford double firsts in the Classics.

However as you say we need to test the Blackpool guys views of the judgment in a Tribunal and in all of this it is simply that what did the Judgment say what did it mean is it binding on HMG and then where does that take us.

English law is essentially a common law jurisdiction so say next week a new criminal law is passed then as day turns into night in the future there will be an appeal in respect of the Act and what did Parliament mean when the Act received RoyalAssent.  That is the question we are now asking here what did the 2007 judgment mean?

Our answers have been rehearsed here well enough so we all know what we believe.

My views are that befire the cases go before the Decision Makers a letter should be on their desks.  It should not be long quite just use as a header the citation of the 2007 judgment and then our intepretation of that judgment using the plain simple language test.  Then if they refuse they have to give reasons and it will be based upon their intepretation of the Judgment.  Then its appeal time and within the set period and then Tribunal.

The letter should go both by email and international recorded delivery and by pigeon if needed.

I am going to research today stated cases on the plain simple language test and see where that takes me.

My colleague is coming back to me today

 

rdgs

 

 

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Ok have done some research and my colleague suggests that until we see through the tribunal and or complaints procedure as to their handling of matters (which is course different to the question of DLA) then we cannot even go to the Ombudsman.  He confirms a Judicial Review is well possible but again points to the costs.

In any event I have been doing some research on the Plain simple meaning test and spoke to someone in my old University and whilst it is an old case the case is still the test case for all such matters.

It is Grey v Pearson (1857) 6HL Cas 61 and where Lord Wednesbury said

 

" The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some obsurdity or some repugnance or inconsistency with the rest of the instrument.  In which case then grammatical and ordinary sense of the words may be modified to avoid absurdity and inconsistency but not further"

The rules say that the document is to be read as a whole and we must read any individual part of the document in the context of the whole document.  The intentions of the parties must be respected as should the common intention of the parties.

Therefore my view and mine alone and indeed my opinion

The Court in the 2007 decision sought to address the question of the export of non means tested benefit.  That was the claim before it. Thus its intention and those who placed the claim was simply the whether the export of the benefit was lawful or that HMG was unlawful.  It said it was unlawful and sought to place the applicants back to the same position they found themselves in immediately before moving to France.  English Law simply tries to put you back to the position you were in and no betterment save for certain circumstances can come into play.  Thus if you left in 2005 and satisfied all the conditions at that time and were in receipt of DLA then I say the Courts intention was to take you back to that position in arriving in its judgment. 

The judgment said Export and the Oxford English Dictionary deals of course at length with the word and its meaning and we all know of course the meaning of export.

If Blackpool do not read the judgment as such then I say they are acting irrationally illogically and unreasonably.  Here Google Wednesbury and the principal legal wise that brought when dealing with the decisions of a public body.

I would draft the letter but here we are dealing with highly personal and private issues so I suggest that individual letters go out. Indeed they will not deal with class actions and if everyone used the same approach they would soon smell a rate.

 

Please let me know if I can be of any further help[

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Many thanks for this dragonrouge and for all of your comments on previous posts. I have already stated my case to Ms Kettle in writing, when asking for reinstatement of my husband's DLA, in the terms of the law and the plain simple meaning test and it was with this evidence in front of her that I got the diatribe on Monday about 26/52 week, no records exist etc etc. I phoned the DLA helpline today and was told that my husband had now appeared on the computer records and they had classified him as a "New Claim". I asked about records and was told that they were archived but may take a little time to find -fair enough, but I also had a little rant about the incompetency and misinformation I was getting from the expo team. Within ten minutes I had a phonecall from Ms Kettle to say records had been found -with profuse apologies and she admitted she had lied to me previously when she had insisted that all records, archives .....had been destroyed. I am supposed to be getting it in writing from her boss, along with the latest regulations relating to reinstatement. My husband's records have now been marked as reinstatement. I think I will classify this as a minor victory.[:)]

I am still awaiting the claim form from the Expo team (they say they have sent 2 but only 1 is recorded on the system). I have been trying to get them for seven months .I have told Ms Kettle that the DLAEXP1 form is not fit for purpose and that I will not be ticking all the boxes but will modify it for reinstatement purposes, removing all mention of a claim to which she said fine. It seems they are only interested in having a form, any form back which they can then process. I have also said in writing that I require a statement of reason with the first decision notice whichever way it goes. As I have addressed the reinstatement issue only in terms of the law then the statement of reason decision can only be quoted in those terms.

In other words

Don't fill in the forms if the questions are not relevant to you -modify them

Do insist that they get your records out of archives

Don't get sidetracked from the main issue. It is the law which has changed

Check on the classification -insist you records are marked as Reinstatement -not New Claim

It is a battle but preseverence will hopefully get our loved ones their allowances back

 

 

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