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Nicola-mod
Nicola-mod, Moderator
Category: Law
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Experience:  Moderator
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Might the Pension Service be in

Customer Question

Might the Pension Service be in breach of HRA 1998 first protocol in that they refuse payment of Pension Credit benefit to me unless I am resident in UK, refuse to give a reason for this comparatively recent change in the rule rules which formerly did pay benefit to overseas residents otherwise qualifying for benefit? In breach specifically by interfering with or preventing 'peaceful enjoyment of possessions' and refusing to provide "objective justification" for the rule? Just had reply from lawyer who says he does not know answer but will research it for £500 which would take me about 5 months to save and of course, the answer might be what I suspect: "no". Clues, tips, any positive 1 liners much appreciated. Jack XXX

Submitted: 2 years ago.
Category: Law
Expert:  Ash replied 2 years ago.
Alex Watts : Hello my name is ***** ***** I will help you with this.
Alex Watts : When you say the first protocol you mean right to life please?
JACUSTOMER-wez6huar- :
I am referring to Article 1 of the First Protocol, (The Right to Life), which reads: Article 1 of the First Protocol: Protection of Property

"The protection of property gives every person the right to peaceful enjoyment of their possessions.

This imposes an obligation on the State not to:


  • interfere with peaceful enjoyment of property;

  • deprive a person of their possessions; or

  • subject a person’s possession to control."


Age Concern and Liberty both advise that "possessions" also means non contributory pension income which must also be free of control except what the state can show is objectively justified.
Alex Watts :

So you are not resident in the UK, but you wish to assert Treaty rights, is that correct?

JACUSTOMER-wez6huar- :

I am resident in the UK. I wish to reside abroad as those in receipt of contributory state pension are entitled to do, and as pension credit recipients WERE formerly entitled to do. The Pension credit rules were however altered to deny the right of Pension Credit recipients to receive their pension credit for longer than 13 weeks whilst abroad. I want to kmnow if under the terms of the HRA 1998 I might be able to challnge this rule as not meeting the criteria of objective justification for example as in the best interests of the majority of british people

Alex Watts :

If you are going to the EU then you may still be entitled to the benefit.

Alex Watts :

But if you are not going to the EU but outside then you wont be entitled to it

Alex Watts :

Protocol 1 is not an absolute right - it is qualified

Alex Watts :

This means that it can be limited by law,

Alex Watts :

Sadly I suspect that the answer is no

Alex Watts :

Even if you wanted to take it to Court you need to exhaust all avenues of appeal in the UK before you can go to the European Court on Human Rights

Alex Watts :

You may not get legal aid for this

Alex Watts :

But generally if it is a benefit based on UK residence and you are not resident in the UK then generally you would not be entitled to it

JACUSTOMER-wez6huar- :

You appear to be ignorant. My MEP already established that the Free Movement Directive specifically excludes the right of recipients of non contributory benefits to receive their benefits whilst resident in other EU countries.

Alex Watts :

Ignorant? That is not correct. For example you can receive a UK pension abroad

JACUSTOMER-wez6huar- :

but how can you determine it does not contravene theHRA1998?

Alex Watts :

But the right is not absolute as I have said. It can be qualified by law.

Alex Watts :

Because that right is NOT absolute - plead read above

Alex Watts :

The right can be limited by law

Alex Watts :

The right to life, for example is an absolute right

Alex Watts :

That means that it can not be interferred with

Alex Watts :

But the right is qualified

Alex Watts :

Therefore it can be limited by law

Alex Watts :

Does that clarify?

JACUSTOMER-wez6huar- :

but pension rules are not law, you are not answering my question. it looks as if pension credit is a possession and also, how are you determining if the residence rule is not a breach of the act?

Alex Watts :

Ok - then if I am not answering your question I will opt out and let someone else take over

Alex Watts :

Please do not respond to me as the system will think you are stuck

Alex Watts :

Another expert will be along to assist you I am sure

Alex Watts :

good luck with this I wish you well

Expert:  Nicola-mod replied 2 years ago.
Hello,
It seems the professional has left this conversation. This happens occasionally, and it's usually because the professional thinks that someone else might be a better match for your question. I've been working hard to find a new professional to assist you with your question, but sometimes finding the right professional can take a little longer than expected.
I wonder whether you're OK with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.
Thank you!
Nicola

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