Exporting AA and DLA within the EEA
(extract from a letter from Pamela Fitzpatrick
of National Association of Citizens Advice Bureaux)
We recently took up the case of a woman, in receipt of Attendance Allowance, who went to live in Spain and had her AA withdrawn. As a result we have become aware that the DSS have been wrongly refusing to export AA and DLA since 1992 as they have misunderstood the relevant EC legislation.
As you probably know, Regulation 1408/71 was amended in 1992 with the result that AA and DLA could no longer be exported. Prior to 1 June 1992 it was possible to export AA and DLA because both benefits were considered to fall under Article 10 of EC Regulation 1408/71. These benefits are commonly referred to as “insurance benefits”. From 1992 however some benefits that fell within Article 10, including AA/DLA were reclassified as “special non-contributory benefits”. One major effect of this reclassification is that special non-contributory benefits are not exportable benefits.
Some transitional protection is available to people already in receipt of benefit in June 1992 and this can be found in Articles 95–95(b) of the Regulation. The DSS view since that time has been that in order to rely on this transitional protection a person must satisfy the following criteria:
- They must be an EC national
- They must have had entitlement before 1.6.92
- They must have worked in the United Kingdom as an employed or self-employed person
- They must by reason of past contributions have entitlement to some insurance benefit at the time they apply to export benefit.
Our interpretation of the transitional protection available within Article 95(b) is that it allows a person who is covered by EC Regulation 1408/71 (those who have been employed or self-employed) and who in June 1992 were already getting an insurance benefit (the insurance benefit in question being AA) under Article 10 to continue to have the right to export that benefit even though it is now defined as a non-exportable benefit.
The DSS do appear to have got themselves into a muddle on this issue. There is no logical reason for them to impose the additional criteria. The problem may have arisen because of the terminology used within European social security. In particular the fact that the term “insurance” and “special non-contributory” is used. The DSS appear to have simply assumed that this must mean contribution-based benefits and as AA is not a contribution-based benefit the transitional protection must mean that you have to be in receipt of some other contributory benefit. Furthermore that contributory benefit in the eyes of the DSS must be as a result of contributions that you have paid.
We understand that in cases of exporting AA/DLA it has been DSS practice to look first at whether a person was getting a contributory benefit and then to look if the benefit is paid on the basis of their own contributions. Therefore women receiving a Category B pension would be automatically excluded.
We took this issue up with the Adelphi who agreed to seek a legal opinion on the point from their own lawyers. DSS lawyers have confirmed that the guidance is wrong and we have been told by the Adelphi that they will amend the guidance to reflect our interpretation of the Regulation.
The DSS also appear to recognise that some people may have been wrongly advised as a result of this guidance. People who were wrongly advised may of course be able to get compensation from the DSS.
Pamela Fitzpatrick, 18 October 2000