Exportabillity of PIP and CESA

Just had a call from a member of a gay couple ( not marrried or in civil partnerahip)

One of them is a Spanish national, the other is a US citizen

The US citizen has no restictions on his visa and gets contribution based ESA and PIP

They are considering moving to Spain

My question is whether CESA and PIP are still exportable in these circumstances

Done a bit more work on this

The US citizen could only take advantage of the withdrawal agreement if he had an EU residence permit at the end of the transition period (meaning that he would then be a dependant family member of a qualifying EEA national - the equivalent of a spouse)

If he has not been issued with that document he does not have any protected EU treaty rights

The need for the EU residence document was cofirmed in a different context by Judge Ward in Secretary of State for Work and Pensions v LZ (SPC)  [2014] UKUT 0147 (AAC)

Even if he had the document he would be an extended family member and there is then the question of dependancy in the country of origin (MARIA PEDRO- and - SECRETARY OF STATE FOR WORK AND PENSIONS : [2009] EWCA Civ 1358 )

Looks like I might be the harbinger of bad news for this couple

I think you may have gone down a slightly wrong turn in that the cases referred to are to do with the concept of “family member” for the purposes of EU law residency rights rather than “member of the family” for the purposes of the co-ordination rules which is a somewhat different concept. If you have “Benefits for Migrants”, it’s discussed there - I have the 10th edition and its at page 286 onward.

As far as I understand it, the definition of “member of the family” follows the legislation for the relevant benefit - however if the relevant benefit does not define the members of the family, we default to the definition of a spouse or dependent child. As PIP (like DLA - see PB v SSWP (DLA)[2016] UKUT 280 (AAC)) doesn’t define family members, the default definition would apply and the partner would not be a “member of the family” for the purposes of exporting PIP.

However for cESA, it seems to me that an unmarried partner is capable of being a “member of the family” within the meaning of national legislation given the definition of a couple as inclusive of two people LTAHW, so I would have thought that this hurdle at least is potentially overcome. There still may be questions in relation to the competent state etc.

Happy to defer to anyone who knows this better than I do as co-ordination is not really my best subject…

Perhaps worth discussing with CPAG or the EU rights hub?
https://www.eurightshub.york.ac.uk/