Delays in SNCB Claims for EU Migrants: An Investigation into Systematic Issues

1. Give us the money!Delay in claims for SNCBs by EU migrants Martin Williams January 2012

2. Delays faced by EU migrants in claims for SNCBs • A separate issue from the lawfulness or otherwise of the right to reside test in general. • 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. • Anecdotal evidence suggests that an EU migrant can wait much longer for the determination of entitlement than a British/Irish person.

3. Why delays exist • 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).

4. Evidence of systematic delay (1) • 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.” • 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”

5. Evidence of systematic delay (2) • 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.” • DWP minutes of meeting with CPAG and others on 08/09/2010.

6. Delays: UK law on claims (1) • No express duty in UK legislation concerning time limits for decisions on new claims. (s. 8 Social Security Act 1998). • It is probable that the duty is implicitly to determine claims within a “reasonable time”. • Published targets: • IS – 9 days • JSA – 11 days • ESA – 14 days

7. Delays: UK law on claims (2) What is a “reasonable time”? • 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 • 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. • Failure to stick to published targets may provide further ammunition.

8. 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

9. 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 immediately2or 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)

10. Interim payments pending appeal? • It will be recalled that interim payments under Reg 2(1) of the Payments on Account Regulations are “subject to paragraph (1A)”. • That provision is as follows: (1A) Paragraph (1) shall not apply pending the determination of an appeal.

11. EU law challenges to rule preventing interim payments pending appeal (1) • 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. • 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). • See Welfare Rights Bulletin 222 (June 2011).

12. Challenges to the rule preventing interim payment pending appeal (2) • Dixon, R (on the application of) v SSWP (case reference: C1/2011/1936) – case pending at present. • 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.

13. Challenges to rule preventing interim payments (3) • 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. • Ms Dixon has now died.

14. Crisis Loans- shortcut solution? • 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 • 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. • 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.

15. EU law and delays • 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 • 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?

16. Provisions on delay in Co-ordination rules (1) • Preamble 7 Reg 987/09 • Persons covered should receive a timely response from the competent institution to their requests. • The response should be provided within the national time limits for responses. • 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

17. Provisions on delay in Co-ordination rules (2) • Preamble 10 Reg 987/09 • 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.

18. 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.

19. Discussion of Reg 987/2009 • Can Article 7 help with delays: note it is worded in the assumption that the claimant is entitled to some benefit at least. • Perhaps its use is more in showing that the intention overall is that delays in decisions on entitlement hinder free movement?

20. Damages for delay? • There is no statutory provision in UK law for compensation in respect of delay. A policy allows for compensation to be paid. • Possible damages for breach in EU law? Francovich and Danila Bonifaci and others v Italian Republic Cases C-6/90 and C-9/90