Withdrawal agreement
Do changes to Winter Fuel Payment breach UK expats’ rights under Withdrawal Agreement?
An analysis by LI member Mark Lee.
This is hard to believe but appears to be occurring.
Winter fuel payments (WFP) have been paid to those of state pension age as at each September for many years including those living in the EU (& wider EEA/Switzerland) apart from “warm” countries, since Brexit restricted to those who are Withdrawal Agreement (WA) beneficiaries.
In winter 2023, 34,407 WA beneficiaries in the EEA & Switzerland received the WFP. (Ministerial written answer October 2024 ministerial written answer: https://questions-statements.parliament.uk/written-questions/detail/2024-10-04/5855/ )
It was clearly a WA protected payment. For winters 2024 and 2025 additional limiting qualifications of, respectively, being on other benefits and having a max income of £35,000 were introduced. That’s lawful.
However for 2025 onwards those WA beneficiaries are excluded by a residency condition! The legal advice service provided by the EU says that is unlawful under the WA and EU law, and re-iterated this in response to the rejection of their opinion by the Pensions Minister.
My UK MP had pressed the Pensions Minister to explain and after initially ignoring the legal aspects, the Minister who is also a Treasury Minister, insisted he could apply such a condition despite the clearly reasoned legal position from the EU legal advice service. He just said their advice was wrong.
The Independent Monitoring Authority (primarily set up to protect EU Citizens against the UK Government) agreed the issue was in scope, may need further investigation but they would not initiate a formal inquiry at this time. This appears to be largely that they have not had other people raising the issue. If you have previously received the Winter Fuel Payment as a WA beneficiary in winters 2020, 21, 22, 23 or 24, it appears you are now being unlawfully denied this by a Labour Government and would be wise to express concern to the Independent Monitoring Authority [email protected] and submit a claim to the DWP before 31 March to protect your position.
Indeed even if your income exceeds the £35,000 2025 criteriax
The risk exists that further withdrawal agreement rights could be eroded based on this by any future Government if one breach is “got away with”.
Age UK say “we do not have the legal expertise to campaign further on the international dimension” and British in Europe think there is a case to be made but think it might take a hugely costly & time consuming court case. The National Pensioners Convention have yet to reply.
The legal advice from the Your Europe legal advice service
https://europa.eu/youreurope/advice/index_en.htm
available to all who live in the EU follows.
“1. As you may know, the UK government changed the rules on how Winter Fuel Payment is administered
following the adoption of the Social Fund Winter Fuel Payment Regulations 2025.
2. However, the rules contained in the Withdrawal Agreement (Articles 30 to 36) and the EU rules on the
coordination of social security (Articles 4, 7 and 50), have not changed since 2020 when the UK withdrew
from the EU. The last changes that were made to Regulation 883/2004 took effect in 31/07/2019 and had
nothing to do with the exportability of old age benefits or Winter Fuel Payment in particular.
3. The question as to whether Winter Fuel Payment is an exportable benefit for the purposes of Regulation
883/2004 is a matter for EU law.
4. It cannot be changed simply because the UK government has decided to change the eligibility conditions
by imposing a condition that claimants must be ordinarily resident in England or Wales (regulation 2(b) of the
Social Fund Winter Fuel Payment Regulations 2025).
5. Under the repealed Social Fund Winter Fuel Payment Regulations 2024, regulation 2 explicitly provided
that Winter Fuel Payment was an exportable benefit. This provision no longer appears in the Social Fund
Winter Fuel Payment Regulations 2025.
6. However, this does not mean that, as a matter of EU law, Winter Fuel Payment is no longer an exportable
benefit.
7. Our advice remains the same: any residence condition imposed by the Social Fund Winter Fuel Payment
Regulations 2025 would appear to be in breach of EU law for the following reasons:
a. Regulation 883/2004 imposes a general rule that benefits cannot be suspended or withdrawn by sole
reason of a person living outside the country which grants the benefit in question. Article 7 of Regulation
883/2004 (waiving of residence clauses) states that, unless there is a rule to the contrary in the Regulation,
cash benefits cannot be subject to any reduction, amendment, suspension, withdrawal or confiscation on
account of the fact that the beneficiary (or the members of their family) reside in a State other than that which
is paying the benefit.
b. We consider that Winter Fuel Payments falls within the category of old-age cash benefits for the purposes
of Regulation 883/2004.
c. Firstly, the European Court of Justice has recognized that Winter Fuel Payment is 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 SS for
Social Security v Taylor): http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!
CELEXnumdoc&numdoc=61998J0382&lg=en
d. We 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.
e. As a result, we consider that WFP must also be considered as old-age benefits within the meaning of
Article 4(1) of the Regulation 883/2004.
f. Secondly, Winter Fuel Payment must be considered a cash benefit because it is a lump-sum payable in
cash payable to persons who have attained pensionable age.
g. Thirdly, Winter Fuel Payment is an exportable benefit, given that all old-age benefits are exportable under
Regulation 883/2004 in view of the absence of any derogation from Article 7 contained in the section dealing
with old-age benefits (Articles 50 to 60).
h. As a result and in accordance with the general rule on waiving of residence clauses contained in Article 7,
the payment of Winter Fuel Payment 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.
8. This is currently the subject of an investigation by the UK’s Independent Monitoring Authority (IMA) to
determine whether the Social Fund Winter Fuel Payment Regulations 2025 comply with the Withdrawal
Agreement:
9. The IMA has indicated that Any citizen experiencing difficulties in exercising their rights is encouraged to
report a complaint through the IMA Portal : https://complaints.ima-citizensrights.org.uk/
10. In conclusion, we consider that, as a matter of EU law, Winter Fuel Payment is an exportable benefit for
the purposes of Regulation 883/2004.
11. We therefore encourage you to raise the matter before the IMA.
12. Ultimately, this would be a matter for the UK courts to decide and if necessary make a reference to the
EU Court of Justice in order to obtain a conclusive ruling on whether Winter Fuel Payment is an exportable
benefit for the purposes of Regulation 883/2004.“