Westminster Hall
Tuesday 12 January 2010
[Mrs. Joan Humble in the Chair]
Exportable Benefits
Motion made, and Question proposed, That the sitting be now adjourned.-(Jonathan Shaw.)
9.30 am
Mr. Roger Gale (North Thanet) (Con): Good morning, Mrs. Humble. I am grateful for the opportunity to raise this issue and I hope that my voice will last long enough for me to place my concerns on the record.
Simon Morgan e-mailed me just before Christmas. He told me that his father had died on 12 December 2009. Chris Morgan and his wife had lived in Alicante in Spain and were endeavouring to secure the payment of exportable benefits. Let me quote from an article written by Chris Morgan for the Costa Blanca News in May 2009.
"In the past, the Department of Work and Pensions...decided that anyone who was receiving a disability living allowance, carer's allowance or attendance allowance and moved to another EU country would not receive this allowance. In 2005, a 'test' case was put before the European Court of Justice...in an attempt to"
secure these benefit payments for
"non-UK residents. On the 18th October 2007, the ECJ ruled against the UK but for the next 18 months the DWP procrastinated,"
"'We are considering the legal implications of a decision by the European Court of Justice and will inform you of the outcome when the result is known.' In March this year"-
"we were informed by the DWP...that they were now able to look at our case. The letter went on to say, 'The ECJ have decided that certain UK disability benefits are to be considered sickness benefits. This means that they will be paid to some people who leave the UK to live in another EEA state or Switzerland.' The letter-
"then states, 'The decision affects Disability Living Allowance (care component only), Attendance Allowance and Carer's Allowance. These benefits can now be paid'"
"'certain eligibility conditions'...from a letter we received at the end of April...it would appear that the DWP have shut the door on ALL those, like us, who are already living abroad because this latest letter states, 'As you had not been present...in Great Britain for 26 weeks out of the previous 52 on the day you asked us to look at the decision again, you cannot get Attendance Allowance'".
The late Chris Morgan, eight months ago, summed up the Government's shameful position precisely and they have been wriggling on the hook ever since.
The UK/EU Disability and Carers Group, based in northern France, wrote to the Prime Minister recently, saying:
"While you are busy deciding when you are going to comply with the European Court of Justice ruling...we...have received...the following message from the wife of one our members who resides in Spain, having gone there on doctor's"
"with the hope that it would prolong his life-as it did."
"I am writing on behalf of my husband.
They do not think he will last until next week. We are just waiting for the Army to fly in my two sons tomorrow and then they will increase the morphine and he will not be lucid. They say he is fading fast.
The first thing he said this morning was, 'The DWP has won. I am going to die before they cough up...' The rest is unprintable."
My first question to the Minister is how many more UK citizens now living within the EU or in Switzerland will have to die without receiving the benefits to which they are entitled while this Government remain in breach of the law?
The Minister is aware that this is not the first occasion on which I have raised this issue in debate. He is aware that I have tabled parliamentary questions to his Department and have challenged the Prime Minister orally on the subject at Prime Minister's Question Time.
The Minister may find that he has a personal interest in this matter. Another claimant has written from his home in France to Revenue and Customs, declining to pay his tax. That claimant says:
"For over six years I have been denied the Disability Living Allowance to which I am entitled under judgement of the European Court of Justice. I am very disabled and losing my sight, yet the DWP continues to squabble with the European Commission, which is now taking"
"to court for failure to pay British citizens living in the EU the sickness benefits to which they are entitled under Community law. This sickness benefit would be tax-free, and exceeds the amount of my private pension, which you tax-like rubbing salt into an open wound."
Mr. Peter Atkinson (Hexham) (Con): I congratulate my hon. Friend on securing the debate and on the work he has done over a considerable length of time in sticking up for the unfortunate British citizens who have been so shamefully and dishonourably treated by the Government.
Several of my constituents reside in Spain on doctor's orders-my hon. Friend mentioned that earlier-because living in a warmer climate helps their disability. Recently, with the collapse of the pound against the euro, their financial situation has become much more urgent and that has added to the trouble faced by my constituents, my hon. Friend's constituents and those of all other Members.
Mr. Gale: I am grateful to my hon. Friend for his kind comments and his support: he, in common with a number of Members on both sides of the House, is seeking justice for that group of people.
As I said in the summer Adjournment debate-I will put it on the record again because it is relevant-setting aside the matter of law, which we will come to in a moment, there is an impression abroad that the people we are talking about are rich, have gone to the sun, saying, "The hell with the United Kingdom", and live in splendid retirement with big yachts and lots of drink, and that they do not need any benefits. My hon. Friend has made the point that a huge number of those people have gone south for the benefit of their health, because they have respiratory or other conditions, and are eking out an existence. The other important point, to which I will return, is that they have been UK citizens and taxpayers, and many still are.
The chap I mentioned a moment ago who wrote to Revenue and Customs lived-his family and all their friends still live-in the parliamentary constituency of Chatham and Aylesford. Some 50 Members of Parliament from all parties have a constituency interest in this subject, and I hope and believe that more of them will join us later this morning.
Many of the claimants have appealed against the DWP ruling. That is why they have sought the support of their UK Members of Parliament. I believe that the appeal process has been deliberately spun out by the Department. On 3 December 2009, my constituent, John Hamilton, noted that the Directgov website had been revised to read:
"The Department for Work and Pensions...has selected a small number of these appeals...(known as lead cases). These have been sent for tribunal hearings. The DWP has requested that similar cases are suspended until the tribunal has made a decision.
It is expected that the tribunal will not hear these cases until January 2010 at the earliest."
That is despite the fact that on 20 November 2009, tribunal Judge Jeremy Bennett ruled:
"The Tribunal Service at Sutton shall establish the availability of the parties and their representatives before listing, subject to the proviso that the hearing must take place in January 2010 unless directed otherwise by a Judge hearing this case."
That was translated by Daniel Vickery, social security and child support appeals tribunals team leader at Sutton into the following request:
"Could you please provide me with your availability for January and February."
My constituent, John Hamilton, has now been told to look at dates at the beginning of March, so Judge Bennett's ruling is effectively being pushed into the long grass.
In the meantime, what of the grounds for the Government's continued defiance of the ECJ ruling-the so-called past presence test, requiring a claimant to have lived in the United Kingdom for 26 of the previous 52 weeks to be eligible to claim? In response to one of my earlier parliamentary questions back in June, the Minister asserted:
"The Department is already complying with the European Court of Justice ruling on the payment of exportable disability benefits."-[Official Report, 22 June 2009; Vol. 494, c. 680W.]
We now know that statement to have been ill-advised.
The European Commission website states:
"The European Commission has decided to take legal action against the United Kingdom for not paying certain benefits"-
exportable DLA, attendance allowance and carer's allowance-
"to EU citizens residing abroad."
Abroad in this case means within the European Union or Switzerland. On 9 October, the Commission addressed a letter of formal notice to the UK authorities. The British Government had two months to respond. That is the first stage of what is called the infringement procedure.
The British Government did reply within two months-just. However, in response to my question asking for sight of that response, the Minister for Pensions and the Ageing Society said:
"Correspondence between the European Commission and the member states...on such cases is generally regarded...as confidential".-[Official Report, 8 December 2009; Vol. 502, c. 249W.]
I should like to know why. The infringement proceedings are in the public domain; why is the Government's response not in the public domain?
The clue might be found in the tardy answer, sent on 17 December, from the Prime Minister in response to my oral question to him on 11 November. It took the man in No. 10 more than a month to be able to tell me:
"We have carefully considered the application of the 26 out of 52 weeks 'past presence' requirement and believe it to be compatible with European Community law."
So I guess that is what we said in reply to the Commission.
Perhaps it is a pity that instead of relying on his hapless junior Minister for advice, the Prime Minister did not read the Commission website for himself. It states:
"British authorities require the claimant to have spent 26 of the previous 52 weeks in the UK...This requirement goes against the European rules coordinating social security benefits and justifies the Commission's decision to start an infringement procedure".
Nothing could be clearer. The Government of the United Kingdom are coldly and deliberately acting outside European law. That fact is confirmed by Jackie Morin, a member of the Commission's staff, in a letter to my constituent John Hamilton dated 3 December 2009.
Quite simply, the Government are in breach of the law and they are disingenuously using weasel words and artifice to try to deny to sick, elderly UK citizens who have served this country-many of them in the armed forces-and who have paid their dues throughout their working lives the money owing to them.
The situation gets worse. Overnight, I received an e-mail on the matter. Unfortunately, I have not been able to go back to the person who sent it to me to secure consent to name them, so I shall have to hand it to Hansard on the understanding that for the moment their anonymity is protected. The e-mail states:
"In June last year (2009) I received a letter from the DWP Debt Collection for what they describe as an overpayment of £3,800 for Carers Allowance...I explained...that I had not left the UK permanently in August 2004"-
the date to which the attempted reclaim related-
"had sold our property then, rented afterwards, and the pensions department were informed of change of address, and"
"had taken permanent residence in France at the beginning of March 2006. The lady I spoke to said she would call me back the following week, but did not...I received no phone call. I have received no correspondence until today."
That was 11 January. The e-mail continued:
"My allowance was stopped at that time"-
"and my husband, who is 72 years old and had suffered a massive heart attack (leaving his heart working at 70 per cent.), has diabetes, diverticular disease, asthma, arthritis and...mobility problems as a result...was awarded Attendance Allowance for life in 2003. I had to leave my full time job to become a £50 a week full time carer. Today I received a letter stating if I do not repay this amount"-
"by the 19th of this month legal action will commence...we do not have any money, the house we live in belongs to our daughter"
"have no savings. We receive £160 per week which includes an allowance for me as a 'wife', and our daughter and son in law help us out financially. We do not even own a car. There is no way we can afford to repay...money, which I believe I do not owe anyway...as we are waiting for reinstatement of our benefits, which we have pursued since August 2006".
Mr. Atkinson: In the case of my constituent, who comes from Northumberland and moved to Spain a long time ago, when the move took place, he was told that disability living allowance would have to stop and he accepted that as one of the penalties of moving abroad. Then, when he discovered the result of the European judgment and reapplied for the allowance, he was told that he was out of court because of the past presence test; he had not lived in the UK for 26 weeks out of 52. This is a classic Catch-22 situation. He thought he had been deprived of disability living allowance, only to be told that if he was entitled to it, he could not have it because he did not pass the test as he had already moved from the United Kingdom.
Mr. Gale: I fear that the situation my hon. Friend describes applies in many cases and I shall come in a moment to what I believe may prove to be the Government's fall-back position, because I can see another area of wriggle room developing if we are not careful.
I believe that the Minister is not only an honourable but a decent man. I know him very well as a Kent Member of Parliament, and outside the Chamber as a friend. I also know that Ministers have to do the bidding of their civil servants, the Secretary of State and the Cabinet, and I know that the Cabinet is in turn leant on by the Treasury, which is seeking to save, for blindingly obvious reasons, every penny that is available. However, I hope that the Minister will believe that it is quite wrong of his Department to send out threatening letters to elderly and infirm people, seeking to claw back money that they do not owe; not only that, they are owed money by the United Kingdom Government.
Mr. John Randall (Uxbridge) (Con): I, too, pay tribute to my hon. Friend's doughty crusade on this matter. Has he any idea of the number of people involved and the sums involved?
Mr. Gale: Information is very hard to come by. The Minister may be able to shed more light; he has access to figures that I do not have. I know roughly the number of appeals that have been lodged. We are probably looking in total at between 2,000 and 3,000 cases across the whole European Union and Switzerland. The majority are in France and Spain or Majorca, and there are some in Greece and one or two others dotted around the European Union, but not many. With regard to the sums involved, the Minister is on record, I think, as saying that this situation could lead to a sum rising to £50 million annually. I am not quite sure what the justification for that figure is, so I hope that the Minister will have time to explain to my hon. Friend, the expatriate community and me how those figures are arrived at.
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