Legal problems - can anyone help?
Jul 9th 2004, 11:52 am
#31
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Joined: Jun 2004
Location: Cheshire
Posts: 46
I've just seen my MP about my case. She has already been in touch with some civil servants and is now going to take my case up with the minister responsible for benefits.
Basically, I've fallen into a gap in the regulations - apparently you are supposed to claim in the country you last worked then get your benefits exported back to the UK. I was not able to do this as I was still under contract to my last employer when I returned to Britain and had informed the local council that I was departing permanently. Besides, I had received severance pay for 5 months so I would still not have been able to claim in NL until 1st August this year and of course I'm not there any more!
I'm planning to appeal the ruling on these grounds because it discriminates against re-pats who need to leave their adopted country of residence and come back to the UK.
I'll keep you all posted!
Basically, I've fallen into a gap in the regulations - apparently you are supposed to claim in the country you last worked then get your benefits exported back to the UK. I was not able to do this as I was still under contract to my last employer when I returned to Britain and had informed the local council that I was departing permanently. Besides, I had received severance pay for 5 months so I would still not have been able to claim in NL until 1st August this year and of course I'm not there any more!
I'm planning to appeal the ruling on these grounds because it discriminates against re-pats who need to leave their adopted country of residence and come back to the UK.
I'll keep you all posted!
Dec 9th 2004, 5:00 am
#32
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Posts: 46
Re: Legal problems - can anyone help?
okay, it's been a long time but I'm finally getting somewhere with the DWP.
I had an appeal hearing last Friday, it overran because of the complexity of my case but has been adjourned.
A number of points came up.
Under Article 71 of EC REg 1408/71, I should indeed be entitled to contribution-based JSA if i can prove I had the intent to return to the UK prior to actually arriving back (in other words, I didn't walk out of my job abroad and throw myself on the mercy of the state here). I can actually prove this - I have documentation going back 18 months showing I'd asked my boss for a transfer to London in April 2003, September 2003 and November 2003. Plus, I'd formed a new relationship in September 2003 with someone in the UK, and had been for job interviews over here a year ago and signed on with a few headhunters.
The adjudicator at the appeal told me it's not possible to make an advance claim - this is what I had done as I was living on severance pay when I returned and it officially ran out on 1/8/04 and I had approached the job centre on 27/4/04 to submit an advance claim in case I hadn't found a job by August. However, yesterday a welfare rights advisor told me you CAN submit a claim up to 3 months in advance so I was in fact correct to do this (except I was out by 4 days cos I should have done it on 1/5/04 and thus I was misadvised by the CAB).
I have a copy of an internal memo about my claim given to me by a friendly soul at the DWP which admits that they had misinformed me and thus I may also have a claim for compensation (if I lose the appeal).
My advisor is now handling my appeal and reckons I should win and be entitled to CB-JSA as from 1/8/04.
I'm posting this as this affects any expat returning from another EU state who has paid their contributions abroad and can show they had an intent to return.
I'll keep you all posted as this develops.
I had an appeal hearing last Friday, it overran because of the complexity of my case but has been adjourned.
A number of points came up.
Under Article 71 of EC REg 1408/71, I should indeed be entitled to contribution-based JSA if i can prove I had the intent to return to the UK prior to actually arriving back (in other words, I didn't walk out of my job abroad and throw myself on the mercy of the state here). I can actually prove this - I have documentation going back 18 months showing I'd asked my boss for a transfer to London in April 2003, September 2003 and November 2003. Plus, I'd formed a new relationship in September 2003 with someone in the UK, and had been for job interviews over here a year ago and signed on with a few headhunters.
The adjudicator at the appeal told me it's not possible to make an advance claim - this is what I had done as I was living on severance pay when I returned and it officially ran out on 1/8/04 and I had approached the job centre on 27/4/04 to submit an advance claim in case I hadn't found a job by August. However, yesterday a welfare rights advisor told me you CAN submit a claim up to 3 months in advance so I was in fact correct to do this (except I was out by 4 days cos I should have done it on 1/5/04 and thus I was misadvised by the CAB).
I have a copy of an internal memo about my claim given to me by a friendly soul at the DWP which admits that they had misinformed me and thus I may also have a claim for compensation (if I lose the appeal).
My advisor is now handling my appeal and reckons I should win and be entitled to CB-JSA as from 1/8/04.
I'm posting this as this affects any expat returning from another EU state who has paid their contributions abroad and can show they had an intent to return.
I'll keep you all posted as this develops.
Dec 9th 2004, 5:34 am
#33
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Posts: 7,613
Re: Legal problems - can anyone help?
Courage!
Feb 24th 2005, 10:48 am
#34
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Joined: Jun 2004
Location: Cheshire
Posts: 46
Re: Legal problems - can anyone help?
Another update.
I had my second appeal hearing yesterday. And I should get a decision by the weekend through the post.
We argued my case on two key points.
Point 1 - the DWP has admitted that they accept that I was not trying to claim CB-JSA between 27/4 and 31/7 in 2004 and that they misinformed me at the time - what they should have done was advise me to drop the claim and start a fresh one in August last year. But they didn't and they kept making me sign on. What this has done is given me NI credits for 3 months before I would become eligible for benefits and we have thus argued that the required "period of insurance" in the member state where the claim was made has been fulfilled.
2. We uncovered a very interesting EU document on 1408/71 which basically said that the benefits regulations are often in conflict with the right to freedom of movement within the EU and that community law should always take precedence in cases of conflict and that national law should be disapplied. So we argued that in my case refusal to pay me benefits was discrimination under EU law as it hampered my right to return home to the UK and look for work while not being left destitute.
The DWP also failed to submit my full case file to the fresh appeal in accordance with the directions made at the last hearing. They had the nerve to stand there yesterday and say the file was complete when I know it's not as I have papers at home from them that weren't included in the submission file sent to the appeal last December! So I'm going after them on that one...
I had my second appeal hearing yesterday. And I should get a decision by the weekend through the post.
We argued my case on two key points.
Point 1 - the DWP has admitted that they accept that I was not trying to claim CB-JSA between 27/4 and 31/7 in 2004 and that they misinformed me at the time - what they should have done was advise me to drop the claim and start a fresh one in August last year. But they didn't and they kept making me sign on. What this has done is given me NI credits for 3 months before I would become eligible for benefits and we have thus argued that the required "period of insurance" in the member state where the claim was made has been fulfilled.
2. We uncovered a very interesting EU document on 1408/71 which basically said that the benefits regulations are often in conflict with the right to freedom of movement within the EU and that community law should always take precedence in cases of conflict and that national law should be disapplied. So we argued that in my case refusal to pay me benefits was discrimination under EU law as it hampered my right to return home to the UK and look for work while not being left destitute.
The DWP also failed to submit my full case file to the fresh appeal in accordance with the directions made at the last hearing. They had the nerve to stand there yesterday and say the file was complete when I know it's not as I have papers at home from them that weren't included in the submission file sent to the appeal last December! So I'm going after them on that one...
