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Attendance Allowance...denied

23 February 2016

Vera Soldanova, our Legal Advice Line Manager, looks at the issue around determining the competent state.

In January we were approached by a 67 year old Czech national about her application for attendance allowance in the UK.  She came to the UK in August 2013 to join her daughter here. She receives a pension from the Czech Republic and State pension credit from the UK but was refused Attendance Allowance (“AA”) from the Department for Work & Pensions (“DWP”) on grounds that the UK was not the competent state to pay sickness benefits, since she is in receipt of a pension from the Czech Republic. Our advice was based on two main grounds:

The first, is simply that she is indeed eligible under the criteria set out in the relevant regulations.

The client’s mother met the criteria established under the Social Security Act 1975 (this was supported by her GP’s medical reports) and passed the “residence or presence in Great Britain” condition under Regulation 2 of the Attendance Allowance Regulations. Therefore I will not mention the criteria to be met to be eligible for AA in detail.

The second, is in summary, that - particularly in the context of this case - AA must be seen as an invalidity benefit, and not a sickness benefit in kind. Accordingly, the rules governing the competent Member State for such benefit have been misapplied by the decision maker, therefore the UK is the competent Member State.

UK as a competent authority – classification of AA

Ultimately, the issue regards whether UK or the Czech Republic is the competent State, rather than whether the client’s mother is eligible at all.

The DWP’s refusal depends on AA being a cash sickness benefit for the purposes of Regulation 883/2004. It is arguable that in cases where the claimant’s disability is either permanent or long-term, AA is more appropriately classified as an invalidity benefit, and therefore the refusal is in error.

On the basis of Stewart (C-503/09 Lucy Stewart­), there is a strong argument that in a case, such as this one, where AA is granted on the basis of long-term or permanent health issues, it is properly regarded as an invalidity benefit rather than as a cash sickness benefit.

If AA is regarded as invalidity benefit in this case, under Regulation 883/2004, the UK is the competent Member State to pay this. Our client’s mother falls within the personal scope of this regulation because she has been subject to the social security legislation of one or more EU Member States – in this case, the UK and the Czech Republic (Article 2(1) Regulation 883/2004). Articles 11 to 16 Regulation 883/2004 determine which Member State is competent for invalidity benefits: 

i. Article 11(3)(e) Regulation 883/2004 provides that any person to whom Articles 11(3)(a) to (d) do not apply “shall be subject to the legislation of the Member State of residence, without prejudice to other provisions of this Regulation guaranteeing him benefits under the legislation of one or more other Member States.”

ii. Article 11(3)(a) related to a person pursuing an activity as an employed or self-employed person. You are neither.

iii. Article 11(3)(b) relates to civil servants, and so is not relevant for you.

iv. Article 11(3)(c) relates to a person receiving unemployment benefits, so is also not relevant.

v. Article 11(3)(d) relates to persons serving in the armed forces or in civilian service and so is not relevant to you.

 

Since Articles 11(3)(a) to (d) do not apply to our client’s mother, who is not an employed person, the Member State competent for paying invalidity benefits is the  Member State in which she is resident. Following Article 1(j) Regulation 883/2004 and C-90/97 Swaddling, residence is determined by identifying the state in which she has the habitual centre of her interests. We are of the view that the UK is the competent Member State.

 

The AIRE Centre currently has two pending cases which concern whether or not a particular benefit is a sickness benefit or an invalidity benefit. Sattlerova (currently before the Upper Tribunal) and Pacholec (First-tier). 

For further questions you can contact Vera at vsoldanova@airentre.org or follow her on twitter @VeraSoldanova.

 

Have you experienced a similar situation or have you been refused with benefits? You can  submit enquiries either by contacting The AIRE Centre using the phone number 0207 831 4276 or by using the email: info@airecentre.org 

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