Winter Fuel Payment
EU Law Information
When Iain Duncan Smith was Secretary of State for Work and Pensions, we believe he breached our Rights under EU Law, when he removed the Winter Fuel Payment (WFP) from some UK Citizens who had exercised the right of free movement of people to live in an EU country outside the UK. In addition he deliberately refused to accept or recognise those elements of Judgments of the Court of Justice of the European Union, which impacted on UK Regulations for the WFP. As such, we feel it is appropriate to provide you, the reader, with a brief outline of the key legal milestones which have a direct bearing on his actions.
There can be no doubt about the meaning of Article 7 of the EU Regulation 883/2004, shown above. And yet .... Iain Duncan Smith chose to ignore its existence, to pursue his gaol of removing the WFP from anyone living in France and Spain in particular. It was very much a case of 'pick and choose', since the DWP continues to make payments in locations such as Sicily, and Sardinia, both of which get to keep the WFP, despite being 'hotter' in Winter than all of Metropolitan France, even with the falsified temperature manufactured by the DWP.
The Court of Justice (CJEU)
The Court of Justice interprets EU law to make sure it is applied in the same way in all 28 EU Member States, and settles legal disputes between national governments and EU institutions. Further, also amongst a number of its functions it hears cases brought by the Commission against a Member State when it considers that State is in breach of Community Law. However, currently its main business, some 90%, is the interpretation of Community Law at the request of one of the National Courts of the 28 Member States. These are called requests for a Preliminary Ruling.
When Iain Duncan Smith told The Daily Mail that he had ‘vowed to fight ludicrous Euro diktat’, he could not have been more wrong. A UK Court, the Upper Tribunal (Administrative Appeals Chamber), had made a Reference for a Preliminary Ruling in the case of Lucy Stewart v Secretary of State for Work and Pensions.
The DWP had fought the claim made by Lucy's parents every step of the way in order to block the original claim for incapacity benefit for Lucy, made by Mr & Mrs Stewart. The fierce opposition from the DWP lead to the Upper Tribunal making a reference for a Preliminary Ruling of the Court of Justice. So, the true problem lay within the DWP, and not the Court of Justice.
The real truth was; Iain Duncan Smith did not approve of, or accept, the Judgment which resulted. When he found he had no choice but to implement the results of the Judgment, he ruled someone had to suffer! No one, in their right mind, can consider that to be a legitimate approach to the framing of a policy which has affected so many UK Pensioners. In our view, there is no way in which the action IDS enacted can be described as 'proportionate to the legitimate objective of the national provisions'.
The principle of exportability
A key element in the levels of protection afforded to UK Citizens from within Treaties which the UK has ratified, is that of the principle of exportability of social benefits. The EU’s Social Security Coordinating Regulation is in place in order to protect the free movement of workers and makes provisions for the export of certain benefits across National Borders, providing a person has a sufficient and genuine link to the social security system of the awarding state.
In the case referred to above, and detailed below, of Stewart (C-503/09) of 21 July 2011, the CJEU held that Lucy Stewart, a Downs Syndrome victim, who had never worked, could claim her link on the grounds that: (a) she was in receipt of Incapacity benefit in youth; (b) also where she had lived for the greater part of her life in the UK; and (c) by proxy as a dependent of her parents who had acquired their linking on the basis of their NI contributions and the fact they were in receipt of a UK State Retirement Pension.
The EU Law states: If you are entitled to a cash benefit from one country, you may generally receive it even if you are living in a different country. This is covered by Article 7 of EU Regulation 883/2004; which replaced the former Regulation 1408/71 and in particular its Article 10 (1) as of 1 May 2010. The principles inherent in the former Regulation apply equally to the current Regulation.
The Lisbon Treaty
Came into force in December 2009, and is known as the Treaty on the Functioning of the European Union (TFEU). The United Kingdom Parliament ratified that Treaty on 11th March 2008, and it has become, in effect, a consolidation Treaty for all previous EU Treaties. Iain Duncan Smith was amongst those Conservative MPs who opposed the ratification of that Treaty every step of the way.
Judgments of the
Court of Justice (CJEU)
The Court of Justice, when requested to give a Preliminary Ruling, must provide the National Court with all the elements of interpretation which are necessary in order to enable it to assess the compatibility of that legislation with fundamental rights. This is known as ‘settled case-law’, and in the three examples below we have listed Judgments, which have involved UK citizens, with references made illustrating ‘settled case-law’.
Through its settled case-law, the Court of Justice has identified an obligation on administrations and National Courts to apply EU law in full within their sphere of competence and to protect the rights conferred on citizens by that law (direct application of EU law), and to disapply any conflicting national provision, whether prior or subsequent to the EU provision (primacy of European Union law over national law).
Case C-356/89 Newton : The importance of the Newton case of 19 June 1991, is where it had been sent to the CJEU for a Preliminary Ruling by a UK Social Security Commissioner, (who are now Judges of the Upper Tribunal, Administrative Appeals Chamber), for a Preliminary Ruling in respect of the proper interpretation of Articles 4 (1) (C), and 10 (1) of the former EEC Regulation No 1408/71, which addressed such benefits as that at Article 7 of the current Regulation. In their ruling in Newton the CJEU had relied upon a substantial body of earlier case-law of that Court, as set out below, wherein it sets out that a cash benefit, such as that at issue, cannot be refused on the sole grounds the beneficiary resides in the territory of a Member State other than that in which the institution responsible for payment is situated.
Case C-382/98 Taylor : of 16 December 1999, was the Judgment which first identified the benefit at issue (WFP) as coming within the meaning of the EU’s social security coordinating Regulation (Article 4 (1) (c) of 1408/71, and exportable by virtue of its Article 10 (1), and as of 1 May 2010 replaced by Articles 3 (1) (d) and Article 7 of Regulation 883/04 which replaced the former Regulation.
Case C-503/09 Stewart : The importance of the Stewart case of 21 July 2011 is where not only did the CJEU rely on settled case-law, it went further by dealing not only with grounds for refusing the benefit, and basically that is where a claimant does not have a genuine and sufficient linking to the UK’s social security system. Helpfully the Court also identified grounds which may establish such a linking and they include state pension contributions and/or being in receipt of a state old-age pension or one of any of the other benefits listed in Article 10 (1) of the former Regulation, now Article 7 of the current Regulation. The Stewart Judgment reaffirmed already subsisting case-law of the Court with regard to the proper interpretation of Article 10 (1) - Waiving of residence clauses - of Regulation 1408/71, namely Case 51/73 Smieja  ECR 1213, paragraphs 20 to 22; Case 92/81 Camera  ECR 2213, paragraph 14; Joined Cases C-379/85 to C-381/85 and C-93/86 Giletti and Others  ECR 955, paragraph 15); and (Case C-356/89 Newton  ECR I_3017, paragraph 23).
The above 'settled case-law' relates to the proper effects of the ‘Waiving of Residence Clause’, where in its wording it appeared to only refer to the retention of a benefit etc., such as the WFP, having been acquired in another Member State. Whereas the Court in the above cases ruled that that Clause in Article 10 (1) meant that it also applied to the acquisition of such benefits. The fact that Regulation 1408/71 was replaced by EU Regulation 883/2004, does not affect the settled case because so as to maintain legal certainty within the EU the principles inherent in the former Regulation, including case law, apply equally to the current Regulation.
Careful examination of 'settled case-law' reveals the degree to which Iain Duncan Smith forced the DWP to ignore many of the basic concepts of all of EU Law. A particular example can be found in CJEU Judgment in Pusa, Case C-224/02.
At Paragraph 20, the Judgment in Pusa states: 'National legislation which places at a disadvantage certain of its nationals simply because they have exercised their freedom to move and to reside in another Member State would give rise to inequality of treatment, contrary to the principles which underpin the status of citizen of the Union, that is, the guarantee of the same treatment in law in the exercise of the citizen's freedom to move (D'Hoop, paragraphs 34 and 35). Such legislation could be justified only if it were based on objective considerations independent of the nationality of the persons concerned and proportionate to the legitimate aim of the national provisions (D'Hoop, paragraph 36).'
The DWP have no logical explanation as to why WFP claimants in Sicily and Sardinia continue to receive the WFP, whilst claimants living in the Rhône-Alpes of France, or the Sierra Nevada of Spain, do not. Such appalling differences cannot be proportionate to the legitimate aim of the national provisions - to provide elderly UK Citizens with help to heat their homes in winter.
New Conditions Imposed
The UK Government, through the Department for Work & Pensions (DWP), has imposed four conditions on our rights to export our legal entitlement to the old-age cash benefit of the WFP. These are:
(a) An age-related eligibility
(b) Establishing a sufficient and genuine link to the competent state, the UK
(c) A re-definition of winter
(d) A 'temperature link' imposed because of where we live
If we had remained living in the UK, or, if we must return to the UK in two years' time because of the results of Brexit, only (a) would apply to us, and we would receive the WFP automatically each year. So, three conditions have been imposed upon us, because, and only because, we have exercised our legal rights to freedom of movement, to live in France - conditions which are not imposed in any way, on those who receive this ‘old-age risk benefit’, who live in the UK, and who receive this benefit automatically every year.
We believe condition (b) has been more than adequately clarified by the CJEU Judgment in Stewart.
In any event, we 'passed' conditions (a) and (b), because our original claims for the WFP, after moving to France, were accepted, and were paid in full. Conditions (c) and (d) have been used by the DWP to deny us access to our legal entitlement to this ‘old-age risk benefit’. These two conditions have breached our rights under Article 7 of EC Regulation 883/2004.
Condition (c) imposes a completely new definition of winter, created by the DWP. Meteorologists and Climatologists the World over, recognise that the definition of winter in the Northern Hemisphere is December, January and February, normally signified by DJF. A winter of 90 days. The DWP has created a re-definition of winter extending it to 151 days! But it seems that does not provide us with sufficient qualification, even though the UK Met Office, the French Meteo-France, and the Spanish Agencia Estatal de Meteorologia, AEMET, all recognise DJF as winter.
Condition (d) imposes a comparison of the mean average winter temperature of the whole of France with that of one part of the UK, namely SW England, which, despite claims by the DWP that it is the ‘warmest part of the UK’ - it is not!
The Isles of Scilly, which are part of the UK, but not part of SW England, is the warmest part at 8.7°C - warmer in fact, than the falsified temperature recorded for France of 7.0°C. We were recently given a copy of the feasibility study conducted by the Met Office, in response to a Freedom of Information request - it has never been published, and was never made available to MPs. This shows a mean average temperature for France as 4.9°C. Since this is below the 5.6°C for SW England, every claimant of the WFP in France should have retained their legal entitlement!
Now take a look at
the temperature information