Allowance Update

Disability Living Allowance, Attendance Allowance and Carers Allowance –

 Up-date

The DWP are stalling over the payment of these allowances and your Association will now request that the Commission cause ‘Infringement’ proceedings to be opened against the Secretary of State for the DWP.

 

Those of our members who were in receipt of any of the above allowances, which were removed following your departure from the U.K. will be aware that in May 1992 these allowances were defined as non-exportable social security benefits and on 27 May 1992 they were put into the EU ‘dustbin’ Schedule 2 of EU Regulations 1408/71, although the U.K. had the right, under Community law to continue paying any or all of these allowances the U.K. government however, decided to remove them as exportable as of 1 June 1992.  This ruling by the EU Parliament meant that all those who had been in receipt of any of these allowances prior to the cut-off date, where allowed, under Community law, to continue to receive these allowances.

 

Most of you should be aware that on 18 October 2007 the European Court of Justice re-defined these allowances as sickness benefits in the case of the Commission v. the European Parliament and Council (Case C -299/05). The Court upheld the claim by the Commission, that removing these benefits was vitiated by an error at law, although the Court gave the U.K. leave to have the ‘mobility’ component of DLA returned to Schedule 2 of Regulations 1408/71(back into the ‘dustbin’.

 

We invite our members, where they wish to learn more about the findings of the Court, to scroll up to the item dated 28-10-07, under ‘Latest News’. There you will also find the address to write to, where you consider you have a claim, following your loss of any of these allowances.

 

Our members will be aware that the DWP at first posted a notice on their website that they were considering the judgement, which they declared to be complicated. The only complication we could identify was, ‘who is responsible for the repayment for the loss of any of these allowances between the date members left the U.K. and 18 October 2007’, since such persons involved are entitled at law to recover their ‘lost’ allowances? Earlier this year the DWP announced on their website that they would be informing all claimants as to their resolve by 5th April 2008. This message was also pulled off their website at about this date and nothing further has appeared?

 

We are now able to tell all our members, who have waited with great patience, that we have learnt from a reliable source, that payments are not being made by the DWP, since they do not have the staff to process these claims? This type of excuse is not sustainable at Community Law and we shall now request that the Commission for Employment and Social Affairs DG open ‘Infringement’ proceedings against the Secretary of State for the Department of Works and Pensions. We remind you that this Secretary is the Rt. Hon. James Purnell MP. Although we find nothing honourable about his present conduct.

 

We have also been approached by one of our members, who, following his claim for the re-instatement of his DLA, he had received a written answer Informing him that his records had been destroyed by the DWP in accordance with the Data Protection Act. This is absolute nonsense and we say a deliberate lie, so as to prevent a lawful claim, since it is not allowed to destroy health records during the life- time of any individual. This claimant, like most of you, had been awarded this allowance for ‘life’ and it had been open to him to have this allowance re-instated at any time following his return to the U.K. and again take up residence there, as many of us expatriates do.

 

This member had had the foresight to retain all his original documentation when being awarded this allowance. However, when he telephoned the DWP to advise them he had all their correspondence, he alleges he was told, ‘sorry’ we have no record so no allowance’?  We have given this member our advice and his papers have gone off to the Rt. Hon. Michael Foster MP, for onward transmission to the Health Ombudsman, where he will also now be entitled to compensation.

 

The Data Protection Act 1998 plays no part in this matter, since the Act, in any event, is there to protect the integrity of information and creates many offences in respect of data controllers. The Act is a very lengthy statutory instrument, repeatedly setting out the very strict controls over any information kept for record purpose and one’s rights regarding access. Indeed, under its Basic interpretive provisions – Sensitive personal data,  ‘Mental and medical health’ are included under its paragraph 2(e). Further in addition to the action now commenced by our member we shall be forwarding our own complaint to the member of Parliament, who represents us at Westminster, with a request that questions are tabled in the House, so as to bring the Secretary of State to account for not only the alleged destruction of this persons health record, but also his failure to cause his department to comply with the ruling of the European Court of Justice, We are also able to forward copies of original documents from our member. We shall also request that the Commissioner, responsible for control of the Data Protection Act, be asked to explain any misconduct by any data controller.     

 

We should like to hear from any other member where they have received a similar response to their claim for any of the relevant allowances.

 

Apart from the illegality of destroying health records under U.K.  Law, such an action runs contrary to the EU initiative of e-health, whereby plans have long been in progress, so as to enable proper access to all Union citizens health records, so as to further enhance the right of free movement within the Union.

 

Perhaps our members can now see as to why it is so important for you all to register your vote and exercise it. That is unless you have not already been disenfranchised.

 

We strongly urge all members to enquire of the last G.P. /health Centre of the address where your entire medical history will be stored, since it is extremely important for you all to request a copy of your health records, which were first controlled in1948. You will be charged a fee, between £10 - £20. Again we cannot impress upon you the importance of doing this, since it could even help save your life. Also in the case, to which we have referred, if the DHSS, as it then was, had acted correctly, your own G.P. would have been advised of any award and these records, which are available to you, will support your claim to any of the above allowances.

 

Whilst preparing this website inclusion we received a copy e-mail received from the DWP today by one of our members. In this letter the DWP state that they cannot make decisions at present, although they set out eligibility ‘criteria’, which they state can be viewed on www.direct.gov.uk. This letter flies in the face of the Court ruling; in fact we declare it absolute garbage, since it reads in circles, continuing to state that the DWP are still in talks with the Commission. The letter clearly identifies the fact that the DWP do not have the staff or the will to pay these allowances in accordance with the Court ruling. Further, the letter is deceitful, since it states, when referring to the ruling by the ECJ, “The mobility component of Disability Living Allowance has not been affected by this judgement”. This element was in fact affected by the Court’s ruling, as that element was also removed from Annex 2 of the Regulations. However, the Court did grant leave to have this element put back in to Annex 2, should the United Kingdom government choose to apply for this.  

 

We are now way beyond 6 months since the judgement and our government are still trying to wriggle and abandon our invalids. This is a government that declares ‘it cares’. The only thing our present government care about is staying in power and awarding themselves huge pensions.

 


For those who wish to read this latest letter go to http://www.ukgovabusesexpats.co.uk

 

 

Additional information