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Exportable Benefits

Volume 503: debated on Tuesday 12 January 2010

Motion made, and Question proposed, That the sitting be now adjourned.—(Jonathan Shaw.)

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”—

that is, 2009—

“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—

to Chris Morgan—

“then states, ‘The decision affects Disability Living Allowance (care component only), Attendance Allowance and Carer’s Allowance. These benefits can now be paid’”

if you satisfy

“‘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.”

The letter says:

“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”

Her Majesty’s Government

“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.”

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.

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”

that I

“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”—

March 2006—

“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”

and we

“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”.

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.

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.

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?

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.

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.

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.

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.

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.

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.

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.

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

“compatible with European Community law”.

I have been through the ECJ judgment carefully—it is not riveting reading—and it would be helpful if the Minister set out why the Department thinks that the past presence test is compatible with the ruling, given that the European Commission does not think so and has indicated to the Department that it intends to introduce infringement proceedings.

On the issue of openness and transparency, I can understand why the Minister does not want to share specific correspondence, but given the information that has not been provided to the House—my hon. Friend drew attention to it—it is disappointing to see what is available on the European Commission website. There, the Commission clearly sets out that it is taking legal action against the UK for not paying benefits and that it

“addressed a Letter of Formal Notice to the UK authorities. The British authorities have two months to respond”,

as my hon. Friend said. Again, the Department took the full two months, so it did not exactly act with all due speed. The Commission then sets out the benefits and the ECJ ruling. It also says that the past presence test

“goes against the European rules coordinating social security benefits and justifies the Commission’s decision to start an infringement procedure.”

We can get all that information from the Commission website, but when we ask Ministers to set out the discussions that they have had and the position that they have taken, we get rather less information. This is not something that I thought that I would say, or that we hear often in the House, but the European Commission is being more open and transparent than the British Government, and the Minister should rectify that.

I have asked the Minister to set out the number of claimants abroad. Just to be clear, will he tell us what estimate the Government have made of the predicted case load and expenditure for existing claimants who move abroad, claimants who already live abroad and both sets of claimants combined? The Minister has talked about 2010-11, which is assumed to be the first full year for implementation of the ruling, but what does full implementation actually mean and why has it taken two years to reach this stage?

It is worth making one final point, which my hon. Friend and the hon. Member for Edinburgh, West (John Barrett), who speaks for the Liberal Democrats, have touched on. One reason why the issue has attracted attention and annoyed some of those living abroad is that the same European Union rules that say that British citizens who lived here all their lives, paid taxes, contributed, worked and then moved abroad should get the benefits under discussion, also say that people who come here from other European countries are entitled to other benefits. We read all the time in the papers—the stories are not made up, but are backed by parliamentary answers—about people who have come to the UK from other European countries and have not worked here or paid taxes, but who, under EU rules, can claim benefits for themselves and their children. People find that extraordinary. We hear stories about Polish workers coming to the UK who can claim child benefit for their children, when their children do not even live here, but in Poland.

The Government never seem to look for clever loopholes to avoid paying such people, who never seem to have any trouble claiming benefits. I do not suggest that they should not get those benefits—under EU rules, these things work in both directions—but it is strange that the Government have looked for every opportunity to deny money to those who have worked here, paid their taxes and gone abroad. Ministers never seem to make similar efforts with those who come to this country, and I am not saying that they should, but there is a disparity. People who come to this country never seem to have any trouble claiming money when they have not contributed. [Interruption.] It is all very well the Minister sighing, but that sort of thing enables people who are against our membership of the EU to score an easy hit. It also enables those who represent, shall we say, somewhat less democratic parties in this country to stir up all sorts of feeling against those who come here from other European countries. As everyone who has spoken has made clear, people are looking for fairness—they want people to be treated fairly.

Once the law is established following the ECJ ruling, it will be incumbent on the Government to implement it as soon as possible so that those who are lawfully entitled to benefits receive their lawful entitlement. On the basis of what I have said and what my hon. Friend so ably said in opening the debate, it is clear that the Government have not moved with due speed. At each stage, they appear to have taken the maximum time available to them and tested every deadline. That is not how the Government should behave, particularly when many of the British citizens involved are elderly and disabled, and when every month really matters.

In his response, I hope that the Minister will answer the questions raised by my hon. Friend and other hon. Members who have spoken in this debate, and that he will move to resolve the issues surrounding the past presence test and its lawfulness, or otherwise, and implement the settled law with all possible speed.

It is a pleasure to serve under your chairmanship, Mrs. Humble. As other hon. Members have noted, you take a personal interest in matters relating to the Department for Work and Pensions.

I begin by paying tribute to the hon. Member for North Thanet (Mr. Gale), who has been pursuing this issue for a long time. He and I have had meetings and he acts in his own doughty way but always in a manner of reasonableness, as the hon. Member for Forest of Dean (Mr. Harper) said. The hon. Member for North Thanet expresses his views in a forthright way, and I appreciate the manner in which he has presented his case, not only during this debate but during our meetings in the Department.

The starting point is the judgment by the European Court of Justice in October 2007, and I want to explain what that meant. In case C-299/05, the Court decided that certain benefits belonging to Finland, Sweden and the United Kingdom should not be classified as special non-contributory benefits under European law, but should instead be classified as sickness benefits. That change in classification for the UK mainly affected disability benefits—the disability living allowance care component, attendance allowance and carer’s allowance, which have been referred to.

The relevant legislation is EC regulation 1408/71, which co-ordinates social security systems in the European economic area, and provides rights for workers and people who used to work and, in certain circumstances, their family members. Not all people who are eligible to receive benefits in the UK can export them if they leave the country. For instance, someone who resides in the UK can claim DLA without having a national insurance contribution record. When they leave the country, however, the UK is no longer responsible for paying them and they are not covered by the regulation. Each member state is free to decide who is entitled to be insured under its legislation, which benefits are to be granted and under what conditions, and how those benefits are calculated. Any such decisions are, of course, subject to challenge from individuals or the European Commission.

When people are covered by the regulation and wish to export their benefit, they are no longer required to meet normal residence and presence conditions although they are still required to meet other conditions of entitlement under domestic legislation. In the UK, that includes a past presence test, whereby an individual is required to have been present in the UK for 26 of the previous 52 weeks, on each day of the award of benefit. For people wishing to export their benefit we have modified that condition so that it is applied only on a single date, on which other conditions of entitlement can be established.

The unmodified test is not new—it has always been part of the conditions of entitlement that all customers are required to meet. Unlike the state pension, for example, disability benefits are not paid because relevant national insurance contributions have been made. They are not means-tested and are paid out of general UK taxation. The purpose of the past presence test is to establish a connection with the UK that is appropriate and proportionate.

The hon. Member for North Thanet said that we have failed to comply with the Court’s decision. However, since the judgment, more than 1,700 people who have left the UK for another EEA state have been able to export their benefit. They are currently being paid while resident abroad, as long as they meet the eligibility criteria for payment. The hon. Gentleman represents a campaign group of people who previously received benefits, but who moved abroad before the date of the judgment and consequently lost them. As noted by the hon. Member for Hexham (Mr. Atkinson), who is no longer in the Chamber, when those people moved abroad they would have known that their benefits would cease, and would presumably have taken that into account when making their decision to leave the UK. Automatically to reinstate benefits to that group of people could be contrary to both domestic and European law. Apart from ensuring that customers satisfy all relevant domestic requirements, including whether they need help in looking after themselves or caring for others, they also need to satisfy European law on sickness benefits.

If I can make my point, I will come to the issue that the hon. Gentleman has referred to.

We know that some customers may have worked in their country of residence. Once that happens, even if they have now stopped work, they are no longer the responsibility of the UK for payment of sickness benefits, and they will need to claim sickness benefits from their new state of residence. People in the UK can receive a disability benefit, even if they have no income at all. However, under European law relating to sickness benefits, in order to be eligible for payment a person needs to be in receipt of a state pension, or a long-term benefit such as incapacity benefit, or to have paid recent national insurance contributions.

People who moved abroad before the judgment and lost their benefits—such as the constituents referred to by the hon. Member for North Thanet—have written to the Department to ask the Secretary of State to reconsider the disallowance decision, and we have looked carefully at all the available options. We can revise a decision when we have made an official error. The definition of an error specifically

“excludes any error of law which is shown to have been an error by virtue of a subsequent decision of a Commission or the court.”

When we decided to disallow benefit when people moved abroad, the decision was made under relevant legislation that was appropriate prior to the decision by the European Court of Justice. People reclaiming benefits they received in the past must therefore not have worked in their state of residence, must be receiving a long-term contributory benefit such as incapacity benefit or state pension, or must have made recent national insurance contributions. They must also satisfy relevant domestic conditions of entitlement.

As I noted earlier, we consider the past presence test to be a necessary condition of entitlement to a non-contributory benefit, as it establishes a recent link to the UK. However, we recognise that people abroad who have not left the UK recently will not be able to qualify.

Let me make this point as it is relevant to a question raised by the hon. Gentleman.

There are exceptions to the situation that I have outlined, and they include cases when people are terminally ill. When we announced the criteria for payment of the disability living allowance care component and attendance allowance for people claiming from abroad, we made it clear that people in such circumstances would not have to satisfy the 26-weeks past presence requirement.

The hon. Gentleman referred to an e-mail that he received on 11 January and the case of people who were asked to pay back around £3,000. I cannot answer in detail about that specific issue now, but I would be happy to look into the case and consider it carefully.

We are paying benefits, including state pensions, to many thousands of expatriates abroad. Most of our expatriates in the EEA live in Spain, and over the last year Ministers and senior officials have visited Spain to meet them and their representatives. They have demonstrated a genuine interest and concern in the lives of British nationals overseas. We are aware that UK nationals may experience difficulties abroad, and we want to help where we can. Since May 2007, my Department has supplied a team of six staff based in Alicante, Malaga and Madrid to provide customer service to support UK nationals living in Spain.

The reason why I tried to intervene earlier was to ask the Minister about the Court ruling. I have two questions: first, I think that the Minister said that if the Department were to reinstate benefits from the time the relevant people moved abroad, or from when they lost them on moving abroad, it would in some way breach European or domestic law. I am not quite certain which aspect of law would be breached.

Secondly, what is the Government’s view of the ECJ ruling? Did it change European law or simply set out what European law had been all the time?

I shall answer those points in my speech.

As I was saying before the hon. Gentleman intervened, we are providing staff. We have a presence, and are working with the Spanish authorities. That is in contrast to the characterisation the hon. Gentleman attempted to give of our interest in British people living overseas. The team on the ground offers up-to-date and accurate information on entitlements; it liaises with the Spanish authorities to resolve the most complex cases; and it also works closely and improves co-operation with the Spanish benefits agency—the National Institute of Social Security. The team is approached on occasion by customers who are priority cases in difficult welfare and health care situations, and who need quick intervention. Recent cases have included dealing with terminally ill customers requiring medical cost advice, and giving support to vulnerable customers when benefits have not been claimed.

People who cannot receive a benefit from the UK may be able to receive a benefit or service from their new state of residence. If they are integrated in their new community and satisfy relevant conditions they may be able to receive benefit and assistance from social services, just like people who come to the UK. In fact, we know that people can and do receive help. For example, there are messages on various websites. One person who left the UK in 2004 recounts that she had three strokes and has

“received excellent treatment in France”.

She writes on the website:

“I received a letter telling me I am considered 80 per cent. or more disabled and will receive an allowance which will pay for a home help. My husband will also get an allowance for helping me in the house with washing, dressing etc.”

She goes on to say that although she is happy with the help she gets in France she feels bitter that she cannot get help from the UK, as she and her husband paid into the system all their working lives.

I am pleased that lady is receiving the help she requires. As Minister for disabled people I strongly support the provision of services for disabled people, but the imposition of conditions such as the past presence test is compatible with regulation 1408/71. If the hon. Member for Forest of Dean wishes, I shall send him details of the regulation. Conditions of entitlement under domestic legislation must be taken into consideration.

The European Commission has indeed written to us to start infringement proceedings, as hon. Members have noted today, on the basis that it considers the past presence test to be an unlawful residence test. We have replied explaining our position in detail and in particular ensuring that the Commission understands how we treat workers. We have not yet received a response.

Members have asked why we do not agree with the Commission. The UK is not alone among member states in disagreeing from time to time with the European Commission in this and other policy areas. I am sure that hon. Members present have disagreed with it, and have called on the UK Government to argue their case. Of course, that is what we do when we disagree. However, we have never published such correspondence with the European Commission. It is important that we can have frank and robust exchanges with the Commission, and to publish them would undermine our opportunity to engage in them. That is not true just of the present case; it is the general custom and practice.

I think the Minister was guilty of slightly mischaracterising what I and my hon. Friend the Member for North Thanet said. I did not ask why the Government disagree with the European Commission. I asked the Minister to set out in detail why the Government think that the past presence test is compatible with the ECJ rule. I have no problem with the Minister disagreeing with the Commission—I frequently do so—so I do not want to leave him with the idea that I am complaining about that. I just want to know why the Government think that what they are doing is compatible with the ECJ ruling. The point that I made about the Commission was that it was apparently being more transparent about its discussion with the British Government than the Government were being.

I am grateful for that clarification of the hon. Gentleman’s position.

Several hon. Members raised the issue of costs. The figures referred to this morning are projected costs of £50 million by 2011, on the existing past presence test. That is what we project at the most, and that was our reply to the parliamentary question tabled by the hon. Member for North Thanet. That does not take account of what would happen without the past presence test, if benefits were backdated in the way that the hon. Gentleman argued for.

On the basis of the number of people moving abroad and who have already moved abroad, and the cases that have come up so far, we make a general estimate. I shall set out our method in more detail for the hon. Gentleman, in a letter that I shall ensure is placed in the Library. As I have said, we estimate what the figure will be at the most, but we obviously need to be cautious when accounting for public expenditure.

The hon. Member for Edinburgh, West (John Barrett) talked about savings. It is a reasonable point that other savings will be made when people move abroad; but, of course, people’s patterns and plans change. I am sure that the hon. Gentleman has met people who have moved to Spain and then decided to move back to the UK, as of course they are entitled to do. It is difficult to make projections relating to people’s behaviour and the social services they will use.

In most cases, when people are dissatisfied with a Department’s decision they have the right to appeal to an independent tribunal.

On the point about cost, the Minister has clarified the answer that he gave Parliament about what would happen if the past presence test were used, and without backdating. Has the Department made any estimates of the costs of the two elements? How much would it cost if claims were backdated to the point when people left the UK, and what would the situation be without the past presence test? Has the Department made those estimates, and can the Minister furnish us with the information today, or include it in his letter to my hon. Friend the Member for North Thanet?

I shall certainly ensure that we can provide a response on the costings, to take into account not applying the past presence test, as the hon. Gentleman suggests.

We have identified and submitted a small number of cases for tribunal hearings and applied for those appeals to be appointed as lead cases. I know that there has been some criticism of the delay, but obviously hon. Members will be aware that the tribunal service is the responsibility of the Ministry of Justice and I will ensure that the criticisms are passed to that Department.

The need to get things right and deal with the delays is because the benefits were designed before the rulings came into being, as the hon. Member for Hexham noted. We have had to get the system right. It is not the case that we have been wantonly disingenuous and dragged our heels, as some Members have tried to characterise the Government’s behaviour. Members should look at the track record in terms of the benefits that the Government have paid out to disabled people and compare it to that of other Governments. I think our record stands up very well. The hon. Member for Forest of Dean made a point about Polish workers and talked about how some extreme parties would use that case. Perhaps he should not fan those flames in the way that he did.

All we are asking for is consistency. The Government appear to be perfectly prepared to pay people who now live in the Minister’s constituency, or people who live in my constituency in Kent, considerable sums of money, in the form of benefits decreed by the European Union—I have no problem with that. That money is paid to people who are not resident in the United Kingdom, people who have come here and paid no taxes, no rates, no nothing, for the majority of their working lives. They may be paying taxes now, but they have not paid them for 30, 40 or 50 years. Therefore, we cannot understand why United Kingdom citizens—UK passport holders—who are now resident in European countries are being discriminated against, and those citizens cannot understand it themselves. That is the point. It has nothing to do with racism, extremism or anything else.

I am pleased that the hon. Gentleman made that point, because it contrasts with the efforts of his colleague, the hon. Member for Forest of Dean—[Hon. Members: “No, it does not.”] It was the hon. Member for Forest of Dean who raised the point that I am now responding to and who set the tone. It is reasonable for me to respond to what he said. I happen to disagree with him. If he does not like that, it is a matter for him.

We will continue our dialogue with the Commission. We have set out why we believe the past presence test is reasonable and fair. I pay tribute to the hon. Member for North Thanet as he takes this case forward. I am sure that this will not be the last point we hear from him on the subject. I am grateful for the contributions from all hon. Members who have spoken in this morning’s debate, which has provided the Government with the opportunity to set out our case.

Sitting suspended.