DLA some movement

[Tony F Dordogne]

I'll phone Age Concern to see whether they can help with a date/reference.

[grecophile-2008]

I thought you might like to see Terry Moran's statement upon being appointed head of the combined Pension, Disability and Carers Service on the 1 April 2008. (I couldn't possibly comment on the date)

"I am delighted to have been given the opportunity to lead the new Pension, Disability and Carers Service. This will allow us to deliver services designed around our customers, rather than asking them to fit round us

"We will be sharing expertise and experience to ensure that pensioners, carers and disabled people all continue to receive a first class service."

 

I for one will certainly be reminding him of his own words.

[barebackrider]

Does this apply to immigrants when they arrive in the UK that they have to spend 26 weeks before they claim? When I was with my OH applying for his disability badge (8 years ago) for the car a family of 15 - yes we counted them - were asking for 4 badges within the family - with an interpreter! He said they had been given temporary accomodation 2 weeks previous when they had arrived, and needed to 'get around' to see where they would like to live permanently - but 6 out of the 15 had 'disabilities' (the others were minors), and they had applied for mobility allowances - they did not understand bus timetables!  All that, no doubt on top of every other allowance they would be told they could have - and that wasn't 26 weeks was it.

Tribunal here we come

BBR

[Tony F Dordogne]

OK, I've phoned ACE and have spoken to their international department.  The person concerned is out of the office today but is expected back on Monday.  So I've sent the following email, priority and have left a detailed message with the colleague asking the recipient to pick up the message as priority:

Dear Sharron Nestor

 

I spoke to one of your colleagues today who told me that you are the right person to contact.

 

I am trying to find a reference number or point of reference for an Appeal/Tribunal concerning the payment of Attendance Allowance for British Citizens now living in Europe, following the decision of the ECJ in October 2007.

 

Despite the ECJ decision, the UK Government are insisting that although the claims being from previous claimants of DLA who subsequently moved to an EU country should be treated as 'reinstatement' effectively, they are all being treated as new claims and the 26 week residence rule is being used to deny those claims.  The DWP is also arguing that the law was a good law until the date of the ECJ judgement.  However, they are also saying that if the previous claimant did not appeal against the decision to terminate their benefit (under the 'good law' when they moved to another EU country) an appeal they could not have won because the law was, in their contention, good - that will also be a reason for refusal.

 

The situation is that the DWP/Exportability Team are stating categorically that they want to use the 26 week residence rule to the detriment of previous claimants of DLA, much in the same way that they tried to implement in the case of AA.

 

A number of people living in France have already received letters of refusal and notices stating that they can appeal against that refusal and more are expected because of the contents of DLA/ExpoTeam emails which clearly outline their thinking that all 'reinstatement' cases are to be treated as new claims.

 

We are trying to gather as much information  as possible, including details of your case, the decision from which including an undertaking from the DWP to use the decision as guidelines (as reported on the British Legion website) it seems that although the AA and DWP benefits are supposed to be treated in the same way this is evidently not happening.

 

And of course, this does not touch on the 'clear speech' definitions in law on reinstatement, which the DWP Legal Department seem to be ignoring, the failure of ExpoTeam staff to respond to letters, emails or telephone calls etc (apparently they're too busy) which is leaving people without any clear ideas as to what is happening.

 

Any details of your case, reference numbers, Tribunal locations would be most welcome - and do you want to take on a DLA case also, it may sit comfortably with your previous case on AA?

 

Pleased to help and no riders about not using sharing this information - now that has really really p****d me off, who does Wendy Kettle think she is?

 

[Tony F Dordogne]

Got the pm thanks Puzzled.

[dragonrouge]

Tony I am trying to dig out the law here not DLA law but old fashioned Common Law. Briefly if a civil or public wrong has taken place and you have suffered a hurt or a loss the Common Law tries to take you back to the situation you found yourself in prior to the hurt or loss. It does not however provide you with betterment and indeed you have to try to liquidate or limit your loss. Thus if you say the hurt or loss occured in say 2005 the law will strive if its Common Law to take you back to that date and in this case DLA for the elapsed period should be paid but not interest on your money.,

However what the DLA guys are saying is that ok they now accept since the judgment that the law is as found in the ECJ but until then (unless you appealed) the law was good so the starting point in all of this is the date of your application. I do not say new I say a continuation of what went before.

Also where the law is silent one of the tools of the law in such matter is the Law of Equity and without going into a lecture it basically evolves from Lord Denning and essentially is about fairness.

So I am trying to put a legal positioning document together. This is now the interpretation of the ECJ judgment and whether HMG are applying the strict letter of the law and acting in good faith et al.

I am finding it difficult to comprehend the argument yes the ECJ gives you DLA but of course you have to comply with 26/52 so you cannot have it. That is perverse and illogical and we now have to see in black and white an argument from them and ahead of a live Tribunal Appeal and then we can take that apart.

[stewdowney]

Hi DR

I am trying to understand  that if we appealed against the DWP decision as we did at a tribunal ( 22.08.06 ) before the ECJ ruling is that better or worse for us as it stands now. We have not received a refusal letter back as such after returning their DLA EXP 1 form.

Thanking you for your great work helping us all.

Stew/Ellie

[dragonrouge]

Hi Stew Ellie my reading of some documents which I do not think you may have seen is that the DLA say they cannot change a decision of a Tribunal if that decision came before the judgment. Thus they cannot interfere.

However UK laws must be in harmony as much as they do not conflict with EC laws. But is ECJ a judgment or a law and is it binding on HMG. That is essentially where all this is taking us.

Will keep you in touch with things as I think them through.

rdgs

[wiggybaggins]

I also had my DLA stopped in 2003 when I came to France,today after pulling my hair out have now had the standard letter of refusal ,I did ask for a review at the time , and asked for my case to be looked at again (no avail) maybe its time I joined you all I have just found the forum and hope I will be able to contribute

wiggybaggins

[Isobel]

Can I just say, please check with DLA that a letter has not been sent to you.   I telephoned the other day and was told that a "refusal" letter had been sent to me on the 24th April, and to date have not received it.   The appeal has to be done within one month of DLA sending the letter.   However I have received the appeals forms.

 

Isobel

[dragonrouge]

Please bear in mind that their mail in my experience goes to Sweden or Denmark before it comes to us. Obviously they are supporting the good old fashioned UK post office. I would insist that all mail eminating from them comes with a signature being required for one can point to their system of going to Nordic states then goodness knows where before coming here to France. It is also wise to point out to them that there is in reality no competition here in the Postal market and indeed Unions here take a dim view of what they see as competition so unless a signature is received then it can be argued the letter never arrived. I have just received a letter today that was posted five weeks ago from Newcastle.

Add to this the news we see from Westminster as to expenses of MP's then my faith in both human nature and indeed the system has given away to dispair.

Some of you will know that I am let us say involved in the law. I say when you mind tells you to push the system to its extremes then you really are just about breaking the law. One of the least claiming MP's is Dennis Skinner he being an ex miner and somewhat direct in his approach. But that is to deviate from what is before us.

[lorna]

I wrote the following post back in early February:

[quote user="lorna"]

And now I have had a letter informing me that a payment has been made to my bank account.

There is one minor hiccup.[:(]. The letter states that the payment is for Attendance Allowance which is of course wrong. My award letter came from the DWP in Blackpool, the payment letter has come from the Pension Service in Newcastle. I'm not sure how much the error matters as I believe the amount paid is correct. However I thought it better to be safe and have phoned the number given. After going through the now standard id rigmarole (husbands make sure you know the date of your wedding including year [:)]), the very helpful advisor told me I had the wrong department and is going to ask the right department (I'm not sure who that will be) to ring me back.

I think this error has occurred because I asked for the payment to be made with my pension - it seemed the easiest way - and these are two different departments. Somewhere along the way the DLA has been transformed into AA.

[/quote]

I never did get a phone call so eventually in March I wrote to the Pension Service explaining the problem and asking them to reissue the payment letter mentioning the correct benefit. I recently received another version of the payment letter - identical in most respects but now stating that the payment is for State Pension.[8-)]. Although this is odd, I don't intend to pursue this any further. At least the State Pension is something which I am entitled to receive.

[Tony F Dordogne]

Well, bitten the bulklet this morning and sent a message to Wendy K telling her that I didn't live in the Uk for the 26 weeks prior to submitting my claim for reinstatement and also told her to send me the refusal letter with a statement of reason and let's all get to the Tribunal!

My email to ACE has been read, just waiting for a reply now.

[dragonrouge]

Tony lets see if the reasons for refusal tie in with other letters of refusal and thus we can see if it is a common approach or changes with the circumstances.

Please keep in touch

[Benjamin]

Mrs Benjamin sent this email earlier today to the Exportability Team. If it wasn't so sad you could laugh about it.

Yes, she does know she could have down loaded the form.[:P]

On 6 May 2009 I received your letter reference DLA7002 which had the hand

written date of 28 April 2009, a delay of some nine days. On the same day I

contacted the telephone number given on the letter and spoke with JACKIE

BLACK with a query regarding the section on Help with getting around

outdoors. She answered my query and I then pointed out the delay in receiving

your letter. She said it was a known problem and I should note it when

contacting you again.

 

I further pointed out that the only places listed

in your letter to obtain a leaflet GL24 were social security office, local

Jobcentres and Citizens Advice Bureaux, all about as much use as a chocolate

teapot to someone living outside of the UK. She then said she would send a

leaflet from your office although this was not obvious from your letter. Another

example of a distinct lack of openness with your customers.

 

She promised

that a leaflet would be put in the post that day (06/05/09) but as of today I

have still not received it. Whilst everyone appreciates that the price of bath

plugs is rising all the time as well as hire charges for pornographic films and

that the Government coffers need replenishing to keep up with unpaid capital

gains tax this is becoming an intolerable service that you are NOT

giving to your customers.

 

Please ensure that this email is

attached to my file and that someone actually acknowledges receipt of

it.

 

[barebackrider]

So Jonathon Shaw has not gone to ground....

http://www.dwp.gov.uk/mediacentre/pressreleases/2009/may/150-09-130509.asp

 

[Tony F Dordogne]

Hi folks

I have today had a long conversation with Sharron Nestor at Age Concern England - truth is I used to work for one of the UK Age Concerns so actually know my way round the organisation tho they've just amalgamated with Help the Aged and things are rather chaotic atm.

I have information that I need to disseminate about the TWO (2) appeals that they had.

Tina, can you send me a private email with your telephone number, we really need to speak about this rather than keep swapping messages on here - we need to organise the best place to put the information, whether on here, on the website or on Facebook.

But folks, it's very interesting and really does blow the past presence argument out the water according to ACE.

[wiggybaggins]

Will you please be so kindas to include me also with this information

wiggybaggins

[Tony F Dordogne]

Spoken to Tina this evening and there is even more confusion now over the past presence rule as what Puzzled has been told conflicts slightly to what I've been told.

So, tomorrow I'm going to speak to the two Appeals/Tribunal Offices concerned to get copies of the decisions so we have something concrete to work off and I've agreed to lead on the Tribunal aspect of our appeals/claims to get the decisions.  It may also help when we use the information from Tina's website for our appeals submission.

Tina will be organising the information I think tho some (but not all) of it has been sent to Puzzled already.

[Benjamin]

[quote user="PaysansG"]

"Rung DLA again. They say all our appeals are delayed due to the "complexity of making their submissions"!!! Anyone any idea of what they are playing at-are they trying to find more reasons to deny us our rights?"

 

[/quote]

Leaflet GL24 lays down strict time scales for the claimant to respond at various stages.

Strangely enough it doesn't lay down any time scales for DWP to do anything.  [:P]

[dragonrouge]

No but the English common law does. There must be finality to any process. I say anything over 28 days is illegal.

[wiggybaggins]

My latest message from Exportability Team in requesting a appeal ,(Quote) thank you for your email and thank you for your patience we will deal with your enquiry as soon as we can) I did state that their letter was dated the 29th April but did not arrive until the 11th May unsigned I made a telephone call but was told that their was no telephones available in the Exportability Teams rooms,but that they would send an email to them( Exportability Team) ,I am very worried that my appeal will be time barred!also I have been waiting for a call back now for a week any advice ?

wiggybaggins

[dragonrouge]

You just have to keep on to their case and repeat everything by recorded delivery. Pressure pressure not daily. Also do you have family friends in the UK? If so I would send them a letter for the Export team and get them to obtain a signature. Indeed within the letter tell them that the letter is being posting within the UK and a signature has been obtained.,

[dragonrouge]

Also I think Tina has something about delays in mail from the UK and through European hubs mail wise.

[dragonrouge]

Hi I have done some work on the retrospective nature of both ED judgments and our common law approach in the UK. I have sent this to Tina for I believe rather than a fragmented approach it is better to store it centrally.

I also suggest we do not disclose what we find until we hear as to the date of the first tribunal.

As to Tribunals in my view it is unlikely that we will see any dates (sorry) until this autumn.

If anyone does want this Sunday to do some heavy reading then please just pm me.

kind regards