Ava's appeal: should a child with a disability still get benefits if her father works abroad?

A former student  asked me if I’d comment on a particular case reported in last week’s press.  A girl from Preston with serious disabilities has been denied DLA because her father is working in Germany.  The picture shows her mother’s response.

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The rules are complex.  When people are working in EU countries, they generally their benefits from the ‘competent state, which will usually be the place where someone works.  There’s a long list of benefits which are covered in these rules:  DLA care component is treated (oddly) as if it was contributory, and DLA mobility component is treated as a ‘special non-contributory benefit’, but the upshot of it is that only the competent state will be liable to pay.  That’s the position, then, which has led to the DWP claiming that Germany should be paying in this case.

The rule doesn’t make any sense.  Consider it first from the perspective of the operation of benefits in the UK.  Some benefits are income tested; many aren’t.  People’s pension does not go up or down because they have an occupational pension – or because they have overseas investments.  DLA is non-contributory and non-means tested; it isn’t affected because people have a court settlement, or an industrial injuries benefit, or a war pension.  So why should it change if people get a benefit in Germany as well – or if they don’t?

Next, consider it from the perspective of the European Union.  Benefits are not like residential care units, where people can only get one place at a time; people can draw income from several sources.  The European Union has been trying to develop networks of solidarity that cut across national boundaries.  Pensioners commonly get money from government and from occupational pension funds.  That’s what European integration means.  So a rule that leads to benefits stopping at national borders undermines one of the central principles of the single market.

I think the DWP’s interpretation in this case is doubtful, and it may well be challenged in the courts before long.  It looks too as if they’ve suspended benefits on the basis that Germany ought to accept liability for a non-resident disabled person, in circumstances where the UK itself wouldn’t.  There’s an evident  problem  in introducing rules that are so obscure that the DWP itself gets it wrong on its first go and where no-one has any hope of working out what ought to happen unless it goes to court.  This is bad practice in every sense, and it ought to stop here.

3 comments

  1. Caroline Leclercq

    In this sort of case the European Commission is supposed to help. They will answer letters and emails. It might be worth a try, as DWP is bound to take account of the enswer. Good luck to this family.

  2. williamthompsonucc

    Paul, if I am not mistaken there is another point – and actually a very simple one: If DLA is an individualised claim, i.e. a claim that grants the right to receive benefit to the person in question (not the family or family members), this adds another point to the dubiety of the decision

  3. Steven Craig

    On the limited amount of information shown about the case, it seems advisable for the parent to dispute the decision (if it is a decision on entitlement, and not just a suspension of payment) through the statutory channels. As I am sure you know well Paul, that means first requesting a reconsideration of the decision. Normal time limit for a request is one month from date of decision, which can be extended in special circumstances. In the event that the decision gets upheld on reconsideration, there is then a right to appeal directly to the First-tier Tribunal. Again normal time limit one month, which can be extended if benefit authority does not object, otherwise at discretion of Tribunal. I just wonder if that option has been drawn to the parent’s attention? I would also suggest she gets specialist expert advice form a local welfare rights agency, or from a CAB or similar. Seems there could well be arguments to be made (perhaps as yet untested) that might find favour with a Tribunal.

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