1. Review 2009/10
Pamela Fitzpatrick
www.cpag.org.uk

2. CPAG
• Provides advice and supported casework on all aspects of
social security and tax credits law
• We bring test cases on issues of wider importance than to
the individual client to get a better interpretation of the law
• We run training courses in all areas of social security and
tax credits and publish various benefits guides including
the Migration and Social Security Handbook
• Over the past year we estimate probably between 60 and
70% of all advice queries to CPAG relate to issues of EU
law
• The demand for our training on EU law has also
increased significantly

3. Main issues 2009/10:
• UK approach to interpreting EU law
• Exporting AA, CA, and DLA
• UK Right to reside test
• Lack of advice provision on co-ordination
rules
• Delays in accessing rights
• Uncertainty about rights under 883/04

4. Interpretation of EU law in UK
• Perception by advisers and claimants that there is a
resistance in the UK to accepting the rights that are
available to individuals under EU law
• Courts and tribunals will often take a literal approach
which leads to difficulties
• Appears to be some resistance to accepting EU law is
supreme
• In one case it was stated for example that social security
was not a matter covered by the EC Treaty
• Recent judgements such as Harrow and Ibrahim treated
as though this is a new right not one that has existed
since the introduction of 1612/68
• Claimants and adviser therefore left in some confusion

5. Exporting AA, CA, and DLA
• Main problems have been:
• The lack of clarity following the judgement
• Delay in implementing the judgment
• Delays in decision making
• Process of appeals:
• - taking place in the UK (cost and inconvenience)
• - formality of first tier appeal tribunal hearings

6. Clarity: Summary of events
• Judgment given by ECJ 18th October 2007
• In June 2008 DWP issued guidance on impact of
judgment in Memo DMG 14/08
• Revised guidance issued in April 2009 in Memo
DMG 17/09 restricts export from people already
living abroad
• Concession given by UK Government relating to
people already living abroad February 2010

7. Problem areas
• What date did AA, CA and DLA care become a
sickness benefit:
• The UK position is that the benefits can only be
treated as sickness benefits in the UK from
October 2007 the date of the judgement in C-
299/05
• But our view is that there is no warrant for the
selection of any later date than the date of the
decision in Jauch C-215/99, ie 8th March 2001 –
see also paragraph 11 of CDLA/2078/2005

8. Problem areas
• When is a person no longer a person subject to
the legislation of the UK;
• Claimants having to meet the 26 week past
presence test in order to be able to export
sickness benefits;
• People who were in receipt of a disability benefit
prior to going to live in another EEA state - UK
conceded on this point shortly before the lead
cases came to the First Tier Tribunal

9. UK statement Feb 2010
• 'In October 2007 the European Court of Justice
decided that ……'disability benefits' should be
classified as sickness benefits under Regulation
EC 1408/71. Consequently, the benefits are
exportable in certain circumstances. Before this
judgment disability benefits were not exportable
and as a result people who had been receiving
these benefits lost entitlement when they moved
abroad.

10. Government position continued…
The Government accepted that the disability
benefits ……..are exportable to customers living
in the European economic area (EEA) and
Switzerland provided certain conditions are met.
This includes a requirement that customers
making a new claim have been in the UK for 26
out of the past 52 weeks.

11. UK concession
• After careful consideration we have decided to
take a different approach on cases where people
lost entitlement to a disability benefit when they
moved to another EEA state or Switzerland
before 18 October 2007 (the date of the judgment
in case C-299/05, Commission v. Parliament) but
no earlier than 8 March 2001 (the date of the
judgment in case C-215/99, Jauch v.
Pensionsversicherungsanstalt der Arbeiter).

12. UK concession
• We accept that these people will have been in the
UK for 26 out of the previous 52 weeks when they
left the UK. We will therefore no longer require
that they should satisfy this condition at the date
they seek reinstatement, providing they continued
to meet the other relevant domestic and EU law
eligibility requirements throughout the period their
claim was disallowed. Payment will be considered
from 18 October 2007.'

13. UK anti test case rules
• The limit to payment from18 October 2007
relates to the UK anti test case rules –

14. Right to Reside and co-ordination
rules
• Right to reside test for IS, income based JSA,
PC, HB, CTB, HIPG, CB and CTC continues to
be a major problem for UK claimants excluding
large numbers of claimants from entitlement to
any UK benefits
• Co-ordination rules failing
• Pregnant or sick EEA workers often left with no
work or benefit reliance on red cross for food and
have a disproportionately high impact on women;

15. Right to Reside
• Lack of awareness by claimants of rights to
aggregated benefits such as maternity/sickness
benefits and DWP still do not appear to be
proactive in notifying claimants of these rights
• Special non contributory benefits such as IS not
payable unless the person has right to reside or
permanent residence. No acceptance in the UK
that a person covered by 1408/71 can claim IS
under 1408/71 and therefore be self supporting to
gain right to reside.

16. Problems
• Where clients successfully claim benefits such as
maternity benefits they should be considered self
supporting and consequently have a right to
reside as a self supporting person and therefore
be able to claim benefits such as housing
benefit/council tax benefits and family benefits
• The response to this by DWP and Revenue is not
consistent. People are told that reliance on a
social security benefit does not make them self
sufficient – we think there is no authority for this.

17. Self sufficient
• Residence Directive and Treaty require that a
person:
• has sufficient resources to avoid becoming a
burden on the social assistance scheme; and
• Has comprehensive sickness insurance

18. Self sufficiency continued
• Directive says you measure self sufficiency by
looking at the threshold by which a person
becomes entitled to social assistance
• Applicable amount in UK?
• Must also have sickness insurance
• Covered by co-ordination rules?

19. What might help
• Guidance from Commission on application of
residence directive does help
• However – the problems facing pregnant women
could be dealt with very quickly by EU law making
clear that a person’s residence is not lost during
maternity leave of a fixed period whether or not in
work – We ask the Commission to consider this
as a matter of urgency
• It would also help to make clear that a person has
comprehensive sickness insurance if covered by
the co-ordination rules (EHIC)

20. Lack of advice
• Complexity of EU law is reflected in CPAG’s
helpline:
• We estimate that approximately 70% of all
queries to CPAG now on the Right to Reside Test
• We have also found that claimants and advisers
have struggled to get access to advice on
exporting DLA etc
• If experienced advisers have difficulty where does
that leave the public
• Need for this lack of advice must be addressed if
co-ordination rights are to be really available to all

21. Delays
• Claimants are finding they are left without money
they are rightly entitled to under the co-ordinaton
rules because of delays
• Delays arise because decision makers and other
front line staff do not pick up on benefit
entitlement under the co-ordination rules
• Delays in decisions on RTR and exporting DLA
• Delays in getting cases to tribunal in some areas

22. Regulation 883/04
• Now have the new co-ordination rules which are
intended to simplify the system for those
exercising free movement.
• Not yet seen the new system in operation and it is
clear that many people remain unaware of any
change
• CPAG view is that the new Regulations may offer
some solutions to the problems we have
identified over the last year – but only if the DWP
and Revenue interpret the new rules in the same
way that CPAG does

23. Possible improvements for
claimants
• Access to special non contributory benefits and
residence more clearly defined. Makes clear that
residence means habitual residence
• Exporting – rules allow all but special non
contributory benefits to be exported
• Member states must make interim payments if
there is disagreement about which state a person
is subject to the legislation of; this should avoid
the problems of people covered by the co-
ordination rules being left without any benefit

24. Delays
• Preamble 7 Reg 987/09
• Persons covered should receive a timely
response from the competent institution to their
requests.
• The response should be provided within the
national time limits for responses.
• It is desirable for member states without such
time limits to consider adopting them – no real
time limits for decisions and may be something
for the DWP/Revenue to consider

25. Late claims
• Reg 987/09
• Preamble 9 – The complexity of the co-ordination
rules means that Member States should make a
particular effort to support insured persons who
have not complied with time limits for claims or
providing information

26. Temporary protection
• Reg 987/09 preamble 10 and Article 6 Reg
987/09
• To ensure a person is protected during a period
of consideration as to who is the competent state
provision should be made for temporary
membership of a social security scheme.

27. Residence
• Preamble 11
• Member states should co-operate in determining
the state of residence and if a dispute reference
should be made to all the relevant criteria
including the criteria set out in Reg 987/09

28. Determining Residence
• Where a difference of views institutions must
establish the centre of interests of the person:
• a) the duration and continuity of presence on
the territory of the Member State concerned;

29. Residence continued…
• b) the person’s situation; including:
• i) the nature and specific characteristics of any
activity pursued, in particular the place where
such activity is habitually pursued, the stability of
the activity and the duration of any work contract;
• ii) his family status and family ties;
• iii) the exercise of any non-remunerated activity;
• iv) for students the source of their income;

30. Residence
• v) his/her housing situation and how permanent
it is
• vi) the member state in which the person is
deemed to reside for tax
• If there is still no agreement MS the intention of
the person as it appears from the facts and
circumstances of the case and the reasons for
the move shall be considered as decisive for
establishing the persons residence

31. Absence for childcare
• Preamble 14
• Specific rules required in order to define
applicable legislation for taking account of
periods during which an insured person has
devoted time to bringing up children in the
various member states.
• We think this should assist in particular women
who are temporarily away from work due to
childcare

32. Some CPAG cases 2009/10
• CDLA/2864/2007, joined with CDLA/2002/2006,
CDLA/2106/2006, CDLA/496/2006 – Exporting
DLA/AA/CA within the EU following C-299/05
• These cases were concerned with how the
decision in C-299/05 is to be applied in UK law
and in particular at the status of the mobility
component of DLA.
• CDLA/2864/2007 was decided in the claimant’s
favour on the facts. CDLA/2002/2006,
CDLA/2106/2006 and CDLA/496/2006 have been
referred to the ECJ. CPAG is not involved in
those cases.

33. CPAG test cases
• CIS/647/2009, CIS/2357/2009 joined with
CIS/1465/2009 – self employed workers and
“Baumbast” rights, A8 nationals and “Baumbast”
rights.
• CIS/2357/2009 - whether a previously self employed carer
of children in education has a right to reside in the UK
following the ECJ’s decisions in Ibrahim C-310/08 and
Teixeira C-480/08.
• CIS/647/2009 - whether an A8 national who has worked
in the UK for less than 12 months has a right to reside in
the UK as the primary carer of a child in education
following the decisions in Ibrahim and Teixeira.

34. CPAG cases
• Secretary of State for Work and Pensions v
Lassal [2009] EWCA Civ 157
• Article 16 Directive 2004/38/EC – Whether
residence prior to 2006 can be taken into account
to establish permanent right to reside
• The Advocate General’s opinion was given on
11th May 2010. The AG has held that residence
in accordance with EU provisions prior to
Directive 2004/38/EC does count towards the
permanent right of residence under Article 16
Directive 2004/38/EC. We are now waiting for the
decision of the court.

35. CPAG cases
• CIS/339/2009
• The issue in this case is whether a woman who
becomes temporarily unable to work due to
pregnancy and childbirth and has no continuing
employment rights has a right of residence in the
UK. The case was heard on 19th April 2010.
• Appeal did not succeed at UT.

36. CPAG cases
• CIS/1224/2007–The issues in this case are:
• Whether Article 10a EC Regulation 1408/71
means that an EU national who is habitually
resident in the UK has a right to receive special
non-contributory benefits
• Whether an EU national who is unable to work
due to his/her partner’s illness retains a right of
residence
• This case has been stayed pending the outcome
of the Court of Appeal’s decision in Patmalniece,
the appeal against CPC/1072/2006.

37. CPAG cases
• Pedro v Secretary of State for Work and
Pensions
• Court of Appeal held that it was not necessary for
a dependent family member to have to show
dependence in the member state of origin.
• However guidance from the European
Commission seems to contradict the judgement

38. DLA export lead cases
• CPAG has represented in a number of appeals
before the First Tier Tribunal on the export of
benefits.
• These cases (although lead cases) have largely
been decided on the facts

39. Looking forward:
• We are cautiously optimistic for the coming year:
• ECJ starting to make caselaw which assists and
clarifies issues in relation to the UK right to reside
test;
• Commission taking infringement proceedings on
many areas of RTR test that CPAG has long
argued are breaches of EU law;
• New Co-ordination rules offer some hope for
delays and temporary cover where a person left
without benefit

40. But:
• EU law is failing pregnant women both in terms of
employment protection and financial support.
• Many migrant women are now working up to the
point of giving birth and returning to work within
days of the birth. They do so because they have
no money otherwise and therefore no choice.
• The health of both mother and baby is at risk
because they are forced to take the child to work
or to leave the child with someone.

41. 2010/11
• We hope that at next year’s Tress seminar we will
be able to reflect on some positive measures that
have been put in place to protect pregnant
migrant women.
• We need the Commission and the UK
government to urgently address this issue.

42. www.cpag.org.uk