Transferring ESA claims when moving to another EU country
Important legal success for people entitled to Employment and Support Allowance moving to another EU jurisdiction – of particular interest to advisers who work near the border with the Republic of Ireland.
Law Centre (NI) helped Ms Robinson, a lady who, because she had moved to Spain, was having problems with continuing to receive Employment and Support Allowance (ESA) due to complex issues of jurisdiction. The Law Centre managed to secure back-payments of £9,000 and have her placed in the Support Group of ESA so that she can continue to receive her much needed benefit even after welfare reform is introduced.
This important result could help many people on ESA who move to other EU jurisdictions, including the Republic of Ireland.
Patricia Carty, social security adviser at Law Centre (NI), said: “We would particularly like to alert advisers operating close to the border. A number of our clients were people who had moved for instance to Donegal and had had appeals listed in England and claims determined under GB rules. The rules applied to claims and appeals when a person exports ESA within the EU can make a crucial difference to their entitlement. Advisers with similar cases are encouraged to contact the Law Centre's advice line.”
Ms Robinson added: “I cannot praise the team in the Law Centre enough. They worked tirelessly on my behalf, and their dedication and encouragement helped me to continue with my case and not give up.”
Ms Robinson’s case
Ms Robinson was awarded Invalidity Benefit due to long term disability in the 1990s. She moved to Spain with her husband a few years later and continued to receive her contributions-based Incapacity Benefit, under EU rules allowing the export of social security benefits.
As part of the migration from Incapacity Benefit to ESA, she was assessed in Spain by a Departmental approved doctor and placed in the work related activity group. She appealed as she thought she should be in the support group. In 2012 her ESA stopped because the claim was being dealt with in Great Britain and, under welfare reform rules, contributions-based ESA stopped after 365 days.
Law Centre (NI) represented her in the appeal and succeeded in establishing that, because the original decision was made in Northern Ireland, the claim should be dealt with under Northern Ireland legislation and the appeal heard in Northern Ireland. As the Welfare Reform Bill had not been passed in Northern Ireland, her award was not time limited. She received arrears of around £9,000 and her benefit was reinstated.
The Law Centre adviser then succeeded in persuading the Department to revise the original decision and to place Ms Robinson in the support group without the need for a hearing. This means that her ESA will not be time limited when the Welfare Reform Bill is passed here.
Implications for advisers
The issue of what rules apply to claims and appeals when a person exports ESA within the EU has arisen on an ongoing basis. Although Incapacity Benefit has been discontinued, advisers may still be dealing with Incapacity Benefit appeals where this would also apply.
ESA has never been included to date in reciprocal arrangements for social security between Northern Ireland and Great Britain. Law Centre (NI) has had previous important test cases to challenge the financial loss suffered by its clients on moving within the UK and these led to the establishment of an extra statutory scheme. The Law Centre also had assurances that when welfare reform goes through, ESA will be included in reciprocal arrangements.
Advisers encountering similar cases can contact the Law Centre’s advice line on: 028 9024 4401 or 028 7126 2433, Monday to Friday 9.30am to 1pm.