Pensioners living in Spain should apply for the Winter Fuel Payment or appeal the decision to withdraw it, according to an independent European advice agency.
A Nexonr reader contacted the agency, Your Europe Advice, following the news that the WFP would be withdrawn from pensioners living abroad, including in Spain, from 2015.
The agency has advised the reader that, in the first place, the payment should be considered part of the Old Age Pension and thus may not be suspended or withdrawn, and secondly that the decision to withdraw it could be considered discriminatory.
Anyone who has been receiving the WFP or would be eligible in 2015 should apply for the payment this year in the usual manner. If the payment is refused a letter whould be sent asking for “full reasons” for the refusal. Once these “reasons” have been received there are grounds to appeal. Anyone wishing to appeal is recommended to take advice from the Child Poverty Action Group, http://wwww.cpag.org.uk or The Aire Centre, http://www.airecentre.org or you can use the draft letter below giving the legal reasons why you should be entitled to the payment. If you decide to use this letter please put your name, address and NI number in the space marked reference.
Tactically it would be advisable to apply for the payment and then, when you are refused, ask for full written reasons for the refusal which will then give you an automatic right to appeal. The appeal must be lodged within a certain time period so check the reply for that closing date.
Dear Madam/Sir,
Reference:
I am writing with reference to the Winter Fuel Payment which is I am entitled to because I am an old age pensioner and to appeal the decision to refuse my applicatiuon of (date).
I believe that the decision to withdraw this lump sum payment from pensioners living in Portugal, Spain, Greece, France, Gibraltar, Malta or Cyprus from 2015, is in contravention of your own Social Security Regulations and, moreover, could be considered discriminatory for the reasons given below.
The rules on social security in the EU are coordinated by Regulation 883/2004 which replaced Regulation 1408/71 from 1 May 2010.
Article 7 (waiving of residence clauses) provides that benefits in cash should be paid to persons who are entitled to them wherever claimants may reside within the EU without any reduction, modification or suspension.
I have been advised that the Winter Fuel Payments falls within the category of old-age benefits in cash:
Firstly, the European Court of Justice has recognized that WFP are to be considered old-age benefits : In so far as the grant of the winter fuel payment to any of the categories of persons referred to is always subject to the materialisation of the risk of old age, that payment must be deemed to protect directly and effectively against that risk (paragraph 25 of the ECJ s judgement in Case C-382/88 SoS for Social Security v Taylor).
I consider that the ECJ s judgment is directly applicable in connection with the interpretation of Regulation 883/2004 because both Directive 79/7 and the Regulation apply in the field of social security.
As a result, I consider that WFP must also be considered as old-age benefits within the meaning of Article 4(1) of the Regulation.
Secondly WFP must be considered a cash benefit because it is a lump-sum payable in cash.
As a result and in accordance with Article 10 of Regulation 883/2004, the payment of WFP cannot be subject to any reduction, modification, suspension, withdrawal or confiscation by reason of the fact that the recipient resides in the territory of a Member State other than that in which the institution responsible for payment is situated.
I am in receipt of a pension from the UK. In this case, it is clear that I am covered by the UK social security system and that the UK remains the competent state to pay me benefits. Therefore, I am making a new claim for Winter Fuel Payments, in line with the principles laid down by the EU Court of Justice in Case C-503/09 Stewart, which concerned the possibility for a person residing abroad to claim short-term incapacity benefit for young persons from abroad on the basis of having continued being covered by the UK system.
I have also been advised that the decision to limit WFP to those pensioners who reside in countries that have similar or colder climates to the UK as measured against the average winter temperatures of the south west of England: is discriminatory and that such discrimination may be justifiable if there are objective reasons for such discrimination. While awarding WFP only to those pensioners who reside in countries that have similar or colder climates to the UK, it would need to be necessary to determine how the UK authorities went about determining whether those countries all have higher average winter temperatures than that of the south west of England. We consider that because the comparison is being made in respect of a region in the UK (rather than the entire UK), then this same approach should be followed when determining the regions in the listed.
For these reason I would ask you to reconsider your decision to withdraw the Winter Fuel Payment from me on the grounds that I live in Spain.
