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12 Jan 2010 : Column 171WH—continued
However, that is not really the point, is it? The point is that there is a legal requirement on the Government to pay the money. The point is that we are not dealing with people who have come from overseas to the United Kingdom and claim every benefit known to man, or the kind of people who are reported on the front page of the Daily Express today as using the United Kingdom as a social benefits milch cow by obtaining a national insurance number for future benefit use. We are not talking about people like that. We are talking about people who have devoted their entire working lives to the United Kingdom, who have paid their taxes, paid
their dues, done everything right, served in the armed forces, given their lives to this country-for this country in some cases-and in retirement have chosen to live somewhere warmer and slightly more comfortable to end their days.
Those are the people we are talking about. Those are the people we are damaging. They are not ciphers or numbers-2,000 or 3,000. I do not care if there is only one of them; they deserve what the law says they are entitled to, and that is what the Government-our Government, my Government, the United Kingdom Government-are denying. I am ashamed of that.
I want to hear from the shadow Minister, my hon. Friend the Member for Forest of Dean (Mr. Harper), that a Conservative Government will honour their legal undertaking, and ensure that those people receive the money that is due to them or sadly, in some cases, to their estates. It is open to the Minister, even now, to recognise that the Government have acted shamefully and that they are wrong, and to agree this morning that his Department will pay all the money due to those who have had benefits terminated when leaving the UK, and have subsequently submitted fresh claims from the EU country of their current residence.
I want to clarify one further issue. For the avoidance of doubt or misunderstanding, and to satisfy the claimants and the European Commission, any such payment, which I believe will have to be made, will have to be backdated to the date of termination or of first claim. The Government can either choose to do that honourably and graciously now, or wait for the European Commission's infringement proceedings to take their course, be taken back to the European Court of Justice-during which time more claimants will die-be ruled against, and then fined and forced to pay. I hope that the Government choose to settle.
I said earlier that I could see wriggle room appearing if we did not nail the matter down now, and I shall not settle for back payment to the date of the most recent claim. Those payments should not have been terminated when people left the United Kingdom; they were lawful then. To be fair, the Government did not know that they were lawful then and nor did we, which is why so many people did not appeal at the time. We now know, however, that they were lawful; that is what the European Court of Justice said in its ruling. Any payments made will, therefore, have to be backdated to the date of termination or of first claim. The Government have been caught breaking the law, and they have to pay the bill.
9.52 am
John Barrett (Edinburgh, West) (LD): I commend the hon. Member for North Thanet (Mr. Gale) on his passionate speech, in which he described many detailed and moving cases. I also congratulate him on his long track record on this matter, and on everything he has said today. He has done more than anyone to highlight what is an all too familiar tale of a Department that is willing to use every trick in the book to avoid meeting its legal and moral obligations.
The hon. Gentleman has done an excellent job in framing the issue today, and I do not wish to go over ground that he has already covered. However, it is worth re-emphasising what we are not dealing with
here. As he said, this is not a tabloid-friendly tale of people from other European countries arriving in the UK and claiming benefits, as has been reported in some quarters. The men and women affected are from here and have paid their taxes here, but are having their entitlement denied to them when they need it most. As has been said, they are not wealthy people. This cannot be spun as part of a wider Government crackdown on wealthy non-doms; the 2,000 to 3,000 or so people who are affected are generally elderly and manifestly in poor health with advancing disability. They have paid their taxes and national insurance contributions and have earned the right for help with their disabilities. Many of them have moved abroad not out of choice but on medical advice.
The reason to move to some place with warmer weather at this time of year should be self-evident-it is tempting for the younger and the able-bodied, let alone for those who have worked all their lives, such as an older couple I know who lived in Scotland. The man had worked for the Ministry of Defence until he retired at 65. When he retired he was living in MOD housing, and he and his wife decided to look around for warmer weather and a reasonably economical place to live; they decided to head for Spain. He had paid his dues all his life and had never asked for a penny, and for the Government now to put so much effort into avoiding their responsibilities to them in this way is shameful. The Government are avoiding those responsibilities, but the job of Government is to provide fair and decent treatment, particularly to the vulnerable and the disabled.
When I was a local councillor, I had experience of a local authority trying to deny individuals fair treatment. When elderly people fell in the streets, the first response they would get would be from loss adjusters who would try to put them off and imply that it was their fault. Most people gave up and went away. We have a Government with a track record of denying for years a fair deal to investors in Equitable Life, despite the ruling of the ombudsman. Today we are dealing with benefits paid for by those who have worked all their lives-many of them never taking a penny. Many of them are ill and some are disabled, and they have gone to live abroad, many for health reasons. They are being denied not something that can be argued about, but an entitlement. The question has been taken up at European Court level. This is an entitlement, not something that is up for debate. The Court has decided: the Government were found guilty, and in the run-up to the election the Minister has a lot of explaining to do.
The European Court of Justice ruling on 18 October 2007 was very clear. It said that those eligible and in receipt of the care component of DLA, attendance allowance and carer's allowance should be able to continue to receive those benefits when they leave the UK. That was because they were classed as "sickness cash benefits" under EU law. That ought to have been the final word on the issue, and the Government should have accepted the ruling and paid out the benefits. Instead, it seems that the ruling itself has been warped by the Department to create yet another loophole.
We are now in the farcical position whereby claimants cannot have their benefits reinstated if they had them removed before the European Court of Justice ruling,
because the Government will not admit that their decision to remove benefits before then was wrong. The ruling by the European Court was that people should be entitled to receive those benefits. People who had their benefits removed by the Government before the date of the ruling should have them reinstated immediately, with backdating and a full apology. Instead, they are told that unless they appealed within 13 months of losing their benefit, they have no grounds for their benefit to be reinstated. Essentially, if they took the Department for Work and Pensions at its word and made the mistake of assuming that the Government would act within EU law, they would miss out. Not only that, but when someone writes to the Government to request that their benefit be reinstated they have to meet the eligibility criteria of having been resident in the UK for at least 26 weeks out of the past 52. The very fact that their benefits were removed means that they are already living abroad, so there is little prospect of meeting that criteria at any time.
If I have misunderstood the situation, I invite the Minister to clarify it, but it seems as if every possible effort has been made to construct artificial loopholes and roll after roll of red tape to keep vulnerable people from receiving the help to which they are entitled. I agree with the hon. Member for North Thanet that the Minister is a decent individual, but he is trying to defend the indefensible. It seems that Ministers have been making up the rules as they go along, and that is quite deplorable behaviour.
In the Minister's winding-up speech, we need to hear that this shameful saga will not be allowed to drag on into the next Parliament, although I doubt he will have much say in that matter. It is an embarrassment that the European Commission has seen no other option but to take the UK Government to court to try to force us to meet our obligations. I appeal to the Minister to save the time, expense and embarrassment of battling another court case, and instead to announce today that the benefits will be reinstated without further argument or details hidden in the small print. I would also like a firm answer on how many people stand to be affected, and how much this will cost the Government-how much money the Government have withheld from them so far. I would not be at all surprised if the money spent fighting a legal battle in the European Court of Justice, and now fighting the Commission, was not too different a sum from that being held back from UK citizens.
Will the Minister also publish a copy of the Government's response to the Commission's letter of 9 October 2009, giving formal notice of legal proceedings? The Government have refused to make the letter public, citing confidentiality. Frankly, it is not a matter of national security. Those people-possibly thousands-missing money that is rightfully theirs deserve to know whether the Government are still attempting to wriggle out of their obligations. The Government have so often professed to be interested in fairness; it ought to be a matter of shame for Labour Members here today that the matter has still not been resolved.
People on low incomes who depend on such benefits to make ends meet do not have time for endless pontification from the DWP. As we heard this morning, some who have fought the battle have lost not only that battle but, in the meantime, their lives. I hope that today's debate will have pressed home to the Minister how far there is
to go before fairness is delivered to those people. I cannot help but feel that if the time and energy spent by civil servants and the Government in devising ways to avoid their obligations had been invested in finding a fair solution, we would not be debating the issue today. I hope that this is the last time that we do so.
10.1 am
Mr. Mark Harper (Forest of Dean) (Con): It is a pleasure to serve under your chairmanship, Mrs. Humble. I know that you take a great interest in matters relating to the Department for Work and Pensions, given the nature of your constituency. I congratulate my hon. Friend the Member for North Thanet (Mr. Gale), who has been a long-standing campaigner on this subject. He demonstrated his usual doughty fighting spirit on behalf of all who depend on Members of the House to speak for them.
I shall mention, as did my hon. Friend the Member for North Thanet, the UK/EU Disability and Carers Group, a group of those affected by this problem. I mention it for the Minister's benefit. It e-mailed me late last year, saying that no member of the group at the time-more than 100 people-had received the legal reinstatement of their disability living allowance or even had the opportunity to have their case heard by the Tribunals Service. That brings me to a point made by my hon. Friend. Even once the law was established, it seems that the Government did not move with appropriate speed. I shall say a little more about that later.
It is worth setting out a little of the background-I shall try not to repeat what was said by my hon. Friend-and saying something about the benefits. I shall also ask the Minister about the thinking behind the Government's stance. The three benefits are the care component of the disability living allowance-the mobility component is not included in the European Court of Justice ruling of 18 October 2007-the attendance allowance and the carer's allowance. The Court decided that those benefits should be removed from the list of non-exportable special non-contributory cash benefits, but should be classed instead as sickness benefits and therefore paid, as my hon. Friend said, to those who live elsewhere in the European economic area or Switzerland.
I shall give the House an idea of the scale involved. Slightly more than 3 million people in the United Kingdom receive the care component of DLA, less than 1.6 million receive attendance allowance, and about 500,000 people receive carer's allowance. I mention that because I shall be asking the Minister to give us an idea of the number affected by the ruling and the Department's estimate of how many might be affected in future. I shall give an example: in 2008-09, about £4.7 billion was spent on attendance allowance for the 1.6 million who received it; it is a significant sum.
To put matters into context, it would be interesting to hear from the Minister how much is involved in the present case. My hon. Friend said that a parliamentary answer gave an estimate of £50 million. That is a large sum, but it pales into insignificance when put next to the total amount of benefits paid. I shall have some specific questions on that aspect for the Minister.
It is worth spending a brief moment to consider the chronology of this case, as it is one reason why those overseas who are affected are so agitated. They may think that things are clear after the ECJ ruling, but they
believe that the Government have moved at a slow pace. My hon. Friend set that out well. However, the Government have not only moved a slow pace but have looked for every opportunity to delay making a decision.
The ECJ judgment was delivered on 18 October 2007. The Government responded reasonably quickly with a written statement to Parliament, saying that they would carefully consider the implications of that judgment. Within a week, one could not expect them to say anything else. In December, two months later, we heard only that the disability and carers service was "preparing guidance", and would give full details of eligibility criteria in April. Not an awful lot had happened, especially given what we had been told publicly, in two months.
At the beginning of April 2008, five months after the ECJ judgment, Parliament received a third written statement. Again, we were told that details would be set out on the website, and that officials were continuing their discussions with the European Commission. We still had to wait. Even five months after the decision, the Government were still not able to set out the eligibility criteria, either for those who had been claiming the benefits before moving abroad or those who lived abroad and were claiming for the first time. Later that month, the criteria were eventually published.
In December 2008, more than a year after the ECJ judgment, the Government admitted that they had received 1,700 requests for payment of DLA, attendance allowance or carer's allowance from people who had previously lived in the UK. That information was gained in response to a question from my hon. Friend, who has been questioning the Government on the matter for some time. In January 2009, my hon. Friend followed up that question, asking the Minister how many of those 1,700 had been settled. He was told that the implications were still being considered.
Later that month, again in response to a written question, the Minister said that the Government had set out their estimate of the increased case load and expenditure due to the ECJ ruling. He said that in 2010-11 they expected that the case load would reach 20,000 people at an annual cost of £50 million. That was assumed to be the first full year following full implementation of the judgment. That estimate is broken down into £30 million for DLA, £10 million for attendance allowance and £10 million for carer's allowance. I am not clear, however, whether that is for those who were claiming benefits before leaving the UK or whether it includes those living abroad who were claiming for the first time. That estimate gives no indication of whether the Government expect those numbers to change.
John Barrett: Does the hon. Gentleman agree that the matter would be helped along if the DWP were to speak to the Department of Health on the matter? Considering the cost of claims to be a matter exclusively for the DWP would be to look at only part of the picture. Many who go abroad are not using GPs or health workers; they are not using NHS services, which has an impact on the Government's budgeting. The cost of claims may be a matter for the DWP, but the costs to the NHS would dwarf that figure.
Mr. Harper:
The hon. Gentleman makes a good point. I am dwelling on the cost because it is our view that once the law is clear, the Government should move
quickly to implement it. The Minister will doubtless be able to make clear the reason for the use of the past presence rule to limit the number claiming for the first time from abroad. I presume it is because an estimate has been made of the potential number, and that that number is significant. I am simply trying to get a handle on what that might be.
Mr. Gale: My hon. Friend cites a figure of 20,000 claims. It is the first time that I have heard that figure. It is a phenomenal increase on the 3,000 who we believe are in the system now. Where on earth are these figures coming from? We ought to know that, too.
Mr. Harper: The straightforward answer from my point of view is that they come from a written answer; the Minister can tell us where the numbers come from. It is difficult to reach a total. The estimated case load for disability living allowance is 20,000, but in an excellent piece of Government speak, no numbers are given for attendance allowance and carer's allowance because they equal
"less than 5,000 and therefore"
"zero when rounded to the nearest 10,000"-[Official Report, 28 January 2009; Vol. 487, c. 563W.]
Only someone in government could, on seeing that 5,000 people were entitled to something, round the figure down to zero, but that is what we are told has happened.
To put the figures in context, the £50 million estimated expenditure is about 0.1 per cent. of the total spent on such benefits, while the number of people affected is about 0.4 per cent. of the number on such benefits. Those numbers do not seem that dramatic or significant, given the Department's estimates for the growth of disability living allowance, attendance allowance and carer's allowance over time. I do not understand why the Government are working so hard to limit the number of claims, and I would be grateful if the Minister filled us in on that.
At the end of February 2009, a month after the Minister answered that question, we had the fourth written statement to Parliament. That was 10 months after the previous one and one year and four months after the original judgment. On a Government website, Ministers finally published details of the eligibility criteria for those who were not claiming disability benefits when they left the UK, but who wished to claim them when they moved abroad.
In a parliamentary written answer, the Government stated that the past presence test had been modified for those claiming from another EEA state so that they had to have been in Great Britain for not less than 26 of the previous 52 weeks. The Government also said that the test would be applied only once, on the date on which the entitlement to benefit was established. In other words, someone who claimed more than six months after having moved abroad would not be eligible for benefits. It would be helpful if the Minister told us how many people living abroad would be eligible for such benefits if the past presence test was not in place and what estimates the Department has made of the number who will be eligible over time. The Department must have done some thinking about that when deciding on its implementation of the ECJ ruling.
In June last year-these things move very slowly-the Government said that they had received 2,100 requests for payment or reinstatement of awards from people living in EEA states. At that point, decisions had been made on 1,100 requests, with 1,000 pending a decision. For the benefit of hon. Members, will the Minister give us the latest information on how many requests for payment of benefits have been received and how many have been processed and had a decision made on them? Of those on which a decision has been made, how many have resulted in a benefit being awarded? In other words, how many requests for benefit have been successful?
There is another disappointing aspect to the lack of dispatch in the Department's approach. In June last year, the Government said that 1,400 people who lived abroad were in receipt of benefits, but that the DWP had only "started to process" claims for DLA from other states following the statement on 24 February. It therefore took a year and four months after the ECJ ruling for the DWP to start processing claims. Given that we are talking largely about disabled and elderly claimants living abroad, such a period can be significant.
The issue has obviously attracted great interest. There has been an e-petition on the No. 10 website, the media have given the subject a lot of coverage, and colleagues such as my hon. Friend the Member for North Thanet have raised the issue in Parliament. As he said, the Prime Minister wrote to him saying that the 26 out of 52 weeks past presence rule was
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