Back ground to the Sickness -
The Disability Living Allowance (care component), Attendance Allowance, Carer’s Allowance – Indicated below as ‘sickness benefits’
1. This account concerns the
‘exportability’ of ‘sickness benefits’ from the
Security benefits, including sickness benefits and pensions etc., are matters
for the EU Member States and the affiliated States, and where the granting of
these benefits is mostly a sovereign matter. However, in accordance with the EC
Treaty, and EU Council Regulations 1408/71, as amended, which sets out certain
overriding principles, not least so as to protect citizen’s rights when moving
within those States. New Social Security Coordinating Regulations 883/2004,
which grant even more enhanced rights of free movement
in this field, will supersede these regulations when they enter into force on
1992, following an application by the UK to the EU Parliament and Council, the
above benefits, which were then classified as sickness benefits and exportable under Community law, were
re-classified as special non-contributory benefits and as such the UK was no
longer required to permit their export. This took effect as of
4. In the Late 1990’s the British Expats Association (Spain), in liaison with another resident organisation there, raised dialogue with the EU Commission when they contended that the said benefits were indeed ‘sickness’ benefits and in the meantime there was increasing supportive case law from the ECJ culminating with a ruling by that court on 8th March 2001 when the Austrian ‘care’ allowance was ruled to be a sickness benefit.
5. Without getting into the legalities upon which the EU is founded, the EU Commission were constrained to act, until an opportunity arose in April 2005 after they had proposed amendments to Regulations 1408/71, which would have led to the re-classification of those benefits as sickness benefits, and therefore exportable from the UK.
7. The Advocate General delivered his opinion
8. The Spanish Association. for
Expatriates then wrote several letters to the Commission, commencing with their
first in November 2007 when seeking clarification as to the proper effects of
that ruling. On
9. There then followed further procrastination by our Government and in the meantime the Association caused a petition to be sent to the EU Parliament, which finally led to the Commission commencing the infringement proceedings in September 2009, following our Government’s response to that petition through the Joint International Office
10. We also saw the involvement of others with
numerous complaints being sent to the Commission and Members of Parliament at
11. On 5th January 2009 the Spanish Association again wrote to the Commission, requesting the opening of the infringement procedure, as the UK were still failing to comply with the ECJ’s ruling
12. We then saw supportive case law being handed
down from the Upper Chamber of the newly created ‘Independent Tribunal Service’,
when in respect of a case then under appeal, on 5 May 2009, the Judge took the
reinstatement of the ‘care’ component element of
13. Since then the UK Government has offered various spurious
reasons for refusing reinstatement to all this who lost their benefit before
the Court’s ruling. The latest excuse being their newly
invented ‘past presence criterion’ of 26 weeks residence in the
[This criterion does not coordinate with Community or the following two case laws.
1. of the ECJ of
2. The case of 18 April 2002. - Johann
Franz Duchon v Pensionsversicherungsanstalt der Angestellten. - Reference
for a preliminary ruling: Oberster Gerichtshof - Austria. - Social security for
migrant workers - Article 48 and Article 51 of the EC Treaty (now, after
amendment, Article 39 and Article 42 EC) - Article 9a and 94 of Regulation (
14. The former case addresses a ‘serious breach of Community law’, when being misapplied by a Member State, including the right to damages. The latter case refers to the backdating of a benefit to include a time when the circumstances which gave rise to a claim for benefit arose even before a State joined the EU.
15. This case law was forwarded to the Spanish
Expats Association on 26 January 2010 when in their letter, the Commission also
advised that its members should pursue their appeals through the domestic legal
procedures. Indeed, all those so affected in Spain, were so advised by their
Association from the outset.
16. Currently there are test (Lead) cases pending before the 1st Tier of the Sutton Appeals Tribunal Service and listed for hearing in central London on the 3rd and 4th March 2010. However, decisions are not expected to be released until the earliest April 2010 ! But don’t hold your breath.
Roger Gale MP (
Roger Gale M.P. was introduced to this saga in late 2008 following
complaints by his constituent Mrs. Hamilton, whose husband had been similarly
affected in this matter. Mrs. Hamilton also started up a campaign in
During the debate Mr. Gale appealed emotionally to his audience. The above legal history was not paraded as above. It must be acknowledged that Mr. Gale’s voice was initially alone in the House. Perhaps no other MP was as motivated as Mr. Gale to take up the cause of expats.
Jonathan Shaw, Minister for the Disabled, responded on behalf of our Government, but he did not present any sound counter argument and only displayed our government’s unwillingness to comply with Community law, stating that our government disagreed with the EU Commission?
The debate raised consciousness but that is all.
A complete up-date in this matter, including an analysis of the debate, has been prepared by Mr. Burrage [click here to view], for guidance to those who are affected by this matter and others who would seek to represent them.
matter which has caused some confusion, is where the ‘mobility component element
ECJ - European Court of Justice, otherwise known as the Court of Justice, whose function is the guardian of the Parliament, the Council and the rights of all citizens who come within the meaning of the EU’s legislation.
European Union – An economic and political association currently comprising 27 Member States.
EEA – European Economic area, which embraces the 3 affiliated
States , namely
The Council of the European Union - Council of Ministers (27, one from each State)
The European Commission is the executive ‘cabinet’ of the EU.
The EU Parliament.
Independent Tribunal Service – A judicial body set up in accordance with the Tribunals, Courts and Enforcement Act 2007 and which comes under our Ministry of Justice, replacing the old Social Security Tribunal system.
Attached is a long, but full legal exposition of all this written by the Legal Advisor to the Spanish Expatriates Association. The above is a much condensed resumé of that document: