Give us the money!
Delay in claims for SNCBs by EU migrants
Martin Williams
January 2012
www.cpag.org.uk
Delays faced by EU migrants in
claims for SNCBs
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A separate issue from the lawfulness or otherwise
of the right to reside test in general.
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Here we are concerned with delays caused by
the need to apply the right to reside test and then
determine challenges to the resultant decision.
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Anecdotal evidence suggests that an EU migrant
can wait much longer for the determination of
entitlement than a British/Irish person.
Why delays exist
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To determine a right of residence in EU law requires in
some cases significant amounts of evidence about
claimant: work history, family members, income etc over a
long period of time.
Some of that information may not be known to claimant.
It also requires decision makers who have a knowledge of
EU residence law.
DWP have chosen to concentrate this expertise in a team
located in Wick (NE Scotland).
The information gathering is not done by a person who
understands the legal test that will be applied in Wick.
Poor quality decisions then lead to longer delays whilst
claimant awaits appeal (no benefit paid pending appeal).
Evidence of systematic delay (1)
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Attempts to get statistics on added delay have so far
failed- DWP have informed CPAG they do not keep such
records:
− Question: “Whether there are any targets times for the processing
of claims by the EEA specialist decision makers (in Wick I think)? If
so what they are?”
− Answer: Answers provided through FOI request April 2010
“There are no set target times for the processing of claims by the
EEA specialist decision makers within Jobcentre Plus.”
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However, at a later meeting we asked again:
− Question: “It appears that DWP take significantly longer to issue a
decision in a case which involves a right to reside issue as
compared to a similar case which involves no such issue. This
means that EU nationals wait for far longer to have their claims
determined than UK nationals.”
− Answer: “Wick are currently taking on average 6 working days
to make a decision”
Evidence of systematic delay (2)
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The DWP have explained the apparent
discrepancy as follows:
− “Wick Benefit Delivery Centre (BDC), along with all
BDC’s across Jobcentre Plus , does keep an informal
track of the number of cases they have outstanding,
but this is not deemed as being statistically safe and
are therefore not published within public domain
under Cabinet Office rules on security and provision
of data.”
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DWP minutes of meeting with CPAG and others on
08/09/2010.
Delays: UK law on claims (1)
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No express duty in UK legislation concerning time limits
for decisions on new claims. (s. 8 Social Security Act
1998).
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It is probable that the duty is implicitly to determine claims
within a “reasonable time”.
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Published targets:
− IS – 9 days
− JSA – 11 days
− ESA – 14 days
Delays: UK law on claims (2)
What is a “reasonable time”?
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Can depend on the volume of claims awaiting
determination and availability of decision makers: R v Sec
of State for Social Services & Chief Adjudication Officer
ex p CPAG [1990] 2 QB 540, CA
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Arguable that what is reasonable will depend on the facts
of a particular case- eg why is it so much worse for this
poor person to have to wait than for another such person?
– R (S) v SSHD [2007] EWCA Civ 546 at para 51.
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Failure to stick to published targets may provide further
ammunition.
Interim payments (1)
Reg 2(1)(b) Social Security (Payments on
Account etc) Regulations 1988 No. 664:
2-(1) Subject to paragraph (1A), the Secretary of State may, in his
discretion, the Board may in their discretion make an interim
payment, that is to say a payment on account of any benefit to
which it appears to him [them] that a person is or may be
entitled [….] in the following circumstances(a) […]
(b) a claim for the benefit has been so made, but it is
impracticable for it or an application or appeal which relates
to it to be determined immediately;
Note that para (1A) concerns appeal cases- see below
Interim payments (2)
Guidance to decision makers for DWP paid
benefits is as follows:
09325 Interim payments may be made where the Secretary of State
is of the opinion that there is entitlement to benefit (see DMG
09326) and
1. [….] or
2. there is a claim but it cannot be put to the DM immediately2 or
3. [….].
2 reg 2(1)(b);
09326 The test is not whether it is “clear” that the person is entitled
to the benefit concerned, it is whether it appears to the Secretary
of State that the person is or may be entitled1. That judgement has
to be made on the basis of the information available at the time
and in the light of whichever of the three conditions in DMG 09325
applies.
1 R v Secretary of State for Social Security Ex p. Sarwar Getachew and
Uranek (High Court April 11, 1995)
Interim payments pending appeal?
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It will be recalled that interim payments under
Reg 2(1) of the Payments on Account
Regulations are “subject to paragraph (1A)”.
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That provision is as follows:
(1A) Paragraph (1) shall not apply pending the
determination of an appeal.
EU law challenges to rule preventing
interim payments pending appeal (1)
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Where a case involves an issue of EU law then
that may be unlawful given that there must be
some power to grant interim relief- Factortame
Ltd v SS for Transport (No.2) [1991] 1 A.C. 603.
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A particularly strong argument where the answer
to the EU law point cannot be given by a national
Court due to a pending ECJ case (see eg cases
such as Punakova C-148/11).
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See Welfare Rights Bulletin 222 (June 2011).
Challenges to the rule preventing
interim payment pending appeal (2)
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Dixon, R (on the application of) v SSWP (case reference:
C1/2011/1936) – case pending at present.
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Ms Dixon brings a much wider challenge to Reg 2(1A):
− Irrational provision- no reason right should disappear simply when
appeal submitted.
− Incompatible with right of access to a court under both the
common law and Article 6 (right to an independent tribunal) ECHR.
Specifically, the right of access to a court requires, in appropriate
cases, a right of access to interim measures capable of securing
for the time being the rights in dispute.
− Article 6 and 3 of the Convention require the Courts to have a
power to grant interim payments in any case where prolonged
delay in resolution of an appeal is such that Article 3 (right not to
be subject to inhuman or degrading treatment) may become
engaged.
Challenges to rule preventing interim
payments (3)
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Ms Dixon’s case has had an odd trajectory in
that:
− She asked for interim relief pending her challenge to
rule preventing interim payments being made.
− The High Court refused to make them on the basis that
it could not do so until it determined the challenge.
− Ms Dixon sought permission to appeal to the Court of
Appeal against that refusal.
− Court of Appeal has granted interim relief pending that
appeal.
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Ms Dixon has now died.
Crisis Loans- shortcut solution?
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Crisis Loan applications are easy to make and should be
determined very quickly.
The Social Fund Inspector aims to make decisions within
24 hours.
Crisis Loan eligibility requires the claimant to:
− Not be a “person from abroad” – SF Direction 16(b)
− Have an ability to repay the loan- SF Direction 22
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Thus it is often possible to get at the reason for the delay
in processing a claim or for refusal of benefit through a
crisis loan application
- for example where the claimant is appealing an IS decision
refusing on basis of no right to reside and applies for a crisis loan
then that issue arises again on that application.
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Given how quickly crisis loan decisions are made and that
remedy against SFI is JR then this is a quick route to the
Admin Court.
EU law and delays
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Potential remedies in EU law where:
− systematic delay can be proved; or
− evidence the delay in a particular case is due to the right to reside
test being applied
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Is the speed with which someone can have a claim
processed something which should not depend on
nationality?
This argument would depend not on a challenge to the
right to reside test itself but instead to the fact that the
delay caused by way it is administered is a difference in
treatment.
Problems with using Article 18 anti-discrimination
provisions in EU Treaty when no right of residence
(Abdirahman): are they overcome by reliance instead on
Article 4 Reg 883/2004?
Does Article 4 extend to the speed with which a claim
processed?
Provisions on delay in Co-ordination
rules (1)
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Preamble 7 Reg 987/09
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Persons covered should receive a timely
response from the competent institution to their
requests.
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The response should be provided within the
national time limits for responses.
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It is desirable for member states without such
time limits to consider adopting them – no real
time limits for decisions and may be something
for the DWP/Revenue to consider
Provisions on delay in Co-ordination
rules (2)
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Preamble 10 Reg 987/09
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To determine the competent institution, namely
the one whose legislation applies or which is
liable for the payment of certain benefits, the
circumstances of the insured person and those of
the family members must be examined by the
institutions of more than one Member State. To
ensure that the person concerned is protected for
the duration of the necessary communication
between institutions, provision should be made
for provisional membership of a social security
system.
Provisions on delay in Co-ordination
rules (3)
Article 7 Reg 987/2009
• Provisional calculation of benefits and contributions
1.Unless otherwise provided for in the implementing
Regulation, where a person is eligible for a benefit, or is
liable to pay a contribution in accordance with the basic
Regulation, and the competent institution does not have
all the information concerning the situation in another
Member State which is necessary to calculate definitively
the amount of that benefit or contribution, that institution
shall, on request of the person concerned, award this
benefit or calculate this contribution on a provisional
basis, if such a calculation is possible on the basis of the
information at the disposal of that institution.
2.The benefit or the contribution concerned shall be
recalculated once all the necessary supporting evidence
or documents are provided to the institution concerned.
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Discussion of Reg 987/2009
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Can Article 7 help with delays: note it is worded in
the assumption that the claimant is entitled to
some benefit at least.
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Perhaps its use is more in showing that the
intention overall is that delays in decisions on
entitlement hinder free movement?
Damages for delay?
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There is no statutory provision in UK law for
compensation in respect of delay. A policy allows
for compensation to be paid.
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Possible damages for breach in EU law?
Francovich and Danila Bonifaci and others v
Italian Republic Cases C-6/90 and C-9/90
www.cpag.org.uk