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Forum Home  →  Discussion  →  Housing costs  →  Thread

EEA national being denied H/B

Judith Deen
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Merthyr Valleys Homes, Merthyr Tydfil

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Joined: 24 June 2013

I have a tenant who is an EEA national who has been in the country with her partner since 2012.  They have an 8 year old child in education.  Partner is now in prison having prevously worked, our tenant has worked for some of the time.  I think she has a RTR due to her being the parent of a child in education.  The DWP have clasified her on CIS as a ‘jobseeker’ but due to this status our Council are refusing H/B.  The DWP have stated that after 6 months she will have a GPoW interview and then be reclasified under Article 10 as a Derived RtR.  The Council will then pay H/B.  Surely she is entitled to h/b now and not have to wait for 6 months? Suggestions please ?

Edmund Shepherd
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Tenancy Income, Royal Borough of Greenwich, London

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Have you appealed any decision(s)?

Judith Deen
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Merthyr Valleys Homes, Merthyr Tydfil

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Have spoken to DWP and they will not review the case until she has been claiming JSA for 6 months.  Our Council will not consider due to the status on CIS.  We intend to appeal to the Council.  Just wanted to know if anyone has had any success with this?

HB Anorak
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Benefits consultant/trainer - hbanorak.co.uk, East London

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This all stems from a horribly tortuous interaction between Regs 6 and 15A of the Immigration (EEA) Regs 2006.  The words “angels” and “pinhead” will come to mind long before you get to the end of this, but here goes.

Reg 15A(1) says that a derived right of residence applies to “A person (“P”) who is not an exempt person”.

Reg 15A(6)(c)(i) defines an “exempt person” as someone “who has a right to reside in the United Kingdom as a result of any other provision of these Regulations” ... which would on the face of it include a work seeker.  If the derived right to reside is thus suppressed by Reg 15A(6) while the claimant seeks work, that prevents her from receiving HB.

However, work seeker is defined in Reg 6(5) as a person who:
“(a) entered the United Kingdom in order to seek employment; or
(b) is present in the United Kingdom seeking employment, immediately after enjoying a right to reside pursuant to paragraph (1)(b) to (e) (disregarding any period during which worker status was retained pursuant to paragraph (2)(b) or (ba))”.

Paras (1)(b) to (e) refer to a worker, self employed person, student or self sufficient person.  So if the claimant was not doing one of those things immediately before looking for work she would not in fact be a work seeker according to the strict definition and would have to rely on her primary carer derived right ... all of which would be good news for HB.  But what if she was a family member of a worker etc before she started looking for work?  Was her right to reside then also “pursuant” to Reg 6(1)(b) to (e) even though she was not the economically active person?

And what of the draconian amendments to the 2006 Regs on 1 July and 10 November: if anyone actually takes those amendments seriously then as I read it a person who enters the job market as a work seeker while already living in the UK can only have that status for three months.  There is no GPOW test - three months is your lot.  To be a work seeker again, you have to leave the UK and the GPOW test applies immediately on your return unless you were away for longer than a year.  The 10/11/14 change was retrospective in that periods of work seeking since 1/1/14 are counted towards the three months.  So this claimant’s work seeker status will end pretty soon if it hasn’t already, at which point she simply reverts to her underlying derived right.  Certainly not six months followed by GPOW - those were the rules between January and July.  Keep up DWP.

For HB purposes it is the Council’s decision as to which right to reside she has: see R(H) 9/04, paras 36-40.  Obviously DWP won’t be bothered that much either way as she can get JSA in any case so there isn’t any urgency for them to update their records.

Whether a court would agree that you only have a derived right to reside if you have no other I don’t know - I think it’s quite possible to have a right to reside on more than one basis at the same time, like a student who works or a worker who nhas a permanent right to reside.  Don’t see why you cannot be a primary carer who is also looking for work.  Otherwise there is a perverse incentive not to seek work.

But for immediate purposes, the thing to do here is convince the Council either that the claimant’s right to reside as a work seeker has ended under the November rules, or that she never came within the definition of work seeker because she was not doing one of those other things “immediately” before seeking work.