The Department of Work and Pensions (DWP) still refuses to reinstate disability allowances, withdrawn when claimants who made legitimate moves to live in other EEA Member states, but campaigners are making steady progress.
Here Tina Hamilton provides an update on where the campaign now stands:
Although some progress appears to have been made in the case of exportable benefits, insomuch that a handful of claimants have received appeal submissions from the Department of Work and Pensions (DWP), hundreds more are still being subjected to delays and procrastination from the exportability team, based in Blackpool.
Those claimants pursuing their allowances via the appeal process, having received rejection letters for reinstatement, are still being confronted with the 'complex issues' argument as to why their cases have not been sent to the tribunals service.
A quoted 350 cases (DWP statistic) are currently waiting to be heard at appeal. The majority of these claimants have had their claim refused on the basis of the '26/52 week rule' (the modified past presence test) and 'failure to appeal' at the original time of withdrawal of allowance.
In mid-August, claimant and campaigner J.H. received a 275-page submission for his appeal from the exportability team, advising him that his appeal was to be heard at the tribunals service in Liverpool.
Given that J.H. had requested his hearing to be handled by the tribunals service in Sutton, this proved a further attempt by the DWP to obstruct his right to a 'fair and reasonable' hearing, as J.H. is not physically able to travel to Liverpool.
After much correspondence and telephone calls, J.H.’s case was passed to Sutton and a date for a First Tier hearing given for November 10, 2009.
At the same time, Age Concern England offered J.H. legal representation, to be provided by the Child Poverty Action Group who have had success in previous exportable benefit appeals.
In mid-September, J.H. received a letter from European Commissioner for Social Affairs, Jackie Morin, in response to correspondence sent some time earlier in respect to his rejected claim.
The letter advised J.H. of the EC’s intention to initiate infringement proceedings against the UK Government for use of the '26/52 week rule', as it is 'contrary to Community law' (reference 2009/2193).
Several other claimants were also advised of the infringement proceedings by the EC and, accordingly, passed this information to the DWP – who denied any knowledge of it and continued to refuse claims on this basis.
In fact, recent correspondence received by group members from Terry Moran, CEO of the PDCS, and his staff in the exportability team, said that:
We have been notified of the decision of the European Commission to initiate infringement proceedings against the UK under Article 226 EC in relation to the "past presence" requirement.
We have carefully considered the application of the "past presence" requirement and believe it to be compatible with European Community law.
However, following the issuance of the EC’s infringement proceedings, J.H.’s November appeal date was cancelled, as “the DWP’s presenting officer was no longer available”.
Two further dates of end-November and mid-December were also rejected as unsuitable by the DWP.
During this period, another member of the group, P.S. residing in Greece, received his appeal submission from the DWP.
The main body of P.S.’s submission was made up of 22 pages of a duplication of J.H.’s submission, along with a request to the tribunals service by the DWP that these two cases, plus one for someone residing in Spain, be linked, under the banner of “the exportability reconsideration cases”, to be heard as three lead cases.
According to the request this will allow the DWP to “submit further and more submissions on the common legal issues”.
Additionally, in respect to the quoted 350 similar cases, the DWP maintains that “staying other cases which raise the same legal issues will mean that once the lead cases are finally determined, the stayed cases can be almost entirely resolved without the need for further litigation”.
It should be noted that J.H. has not been told of this request by the DWP, instead only finding out due to contact with P.S. – through the UK/EU Disability & Carers Group – and via the Child Poverty Action Group, who will be representing all three test case claimants (linked or not).
Website: UK/EU Disability & Carers Group