EEA and HB

HI I am seeking some advice on a very complex case. We have a family of Romanians (husband, wife and 2 dep children). Couple arrived in UK in 2013. children only just started school a couple of months ago. Niether parent worked in the Uk since arrival.

Mum is ill and unable to work (and never worked in Romania) Dad is a plumber. He never claimed JSA and has returned periodically to work in Romania. He is now employed in Romania and works for 2 months there, and returns to UK for one month. Pay is low at something like £50 per week.

The couple have a tenancy (private) but have been refused HB. So far, I have tried the following arguments

1. Dad is resident here, lives with is wife but is working abroad.  HB argue not habitually resident.  I think that he is as this is still his home (just as someone working on an oil rig is still iving in UK) However, I dont think this will entitle them to benefits anyway as he isnt working in UK.

2. There is a non dep 18 yrs old who works in a car wash. Work is permanent but sporadic depending on the weather. Can be one day per week, can be 5/6 days per week. I have argued that Mum as she is sick, is a family member of an EEA national who is both financially and otherwise dependant . There are two issues with this , Hb are arguing work isnt permanent - a very weak argument as the letter from the car wash says that it is.However, the worker is not the claimant, and I think (though I am not certain) that he would need to be. If I try to get the tenancy put into the 18 yr olds name, and make him the claimant, I dont think they will qualify anyway due to the very low app amt. He may qualify occasionally when there is very low income.

We are waiting for outcome of CB/CTC claims.

Does anyone have any suggestions on other arguments I might try or things that I may have completely overlooked or misunderstood?

many thanks
Sharon

dizzymare - 15 August 2014 02:41 PM

Does anyone have any suggestions on other arguments I might try or things that I may have completely overlooked or misunderstood?

I don’t think you are far off, if you can convince the LA that the non-dep is a “worker”, and that in turn, the father and mother are dependant on him (Art 7 (4) of the EU directive) , then he can make a claim.

The other option is to let the non-dep make a claim (Under reg 8 of HB rules), this again dependant on the LA accepting he is a worker, but this is probably of no use because of the low applicable amount.

I am frankly a bit puzzled about the general RN approach towards a “tenancy agreement”.

I clearly must try harder.

I think I can see where you’re coming from, Martin, but I think the point others are making is that someone who isn’t the tenant can be treated as liable for the rent if they have to pay in order to continue living there because the liable person isn’t paying and it is reasonable for the LA to treat them as liable (under Reg 8).

It isn’t going to be an easy one though IMO. I don’t suppose there’s any chance of mum getting work at the car wash as well as son? It would make life a whole lot easier at least in terms of ongoing benefit.

Thank you for the replies :) sorry for the delay in acknowledgment but I have been on annual leave

There is no possibility of Mum working as her health is not good enough. Can I just clarify whether if LA accept that son is a worker, and Mum is therefore a family member, and they accept that she is both financially, and more importantly, dependant on her son for personal care etc. Can she still be the claimant for HB?

The information that I am reading seems to say that if a person has the right to reside, then any family member also has the same right to reside. Following that, then Mum should be able to claim HB and rely on her right to reside as a family member of an EEA national who is a worker.

The LA are arguing that the family member cannot be the claimant, only the worker. It is my understanding that a family member has the same right to reside and therefore can be the claimant.

Can anyone please confirm this?

many thanks

As far as I can see, yes- if the mum is accepted as being a family member of the working son then there’s nothing to prevent her claiming HB (or anything else she may be entitled to).

Unless I’m missing a trick?

Provided you have right to reside you should be able to claim.

I had a similar scenario, whereby the parent was a pensioner, dependent on her daughter, a self-employed business owner. The mother and daughter lived apart.  But the mother was dependent on the daughter financially for a long time.  In the end the mother was awarded HB and CTR in her own right at her own property. 

The biggest hurdle I had was proving ‘dependency’.

Her husband cannot have a right to reside as a worker under article 7(1)(a) of the EC Directive as he is not a worker or self employed in the host member state.  He could have a right to reside under 7(1)(b) if he has “sufficient resources for” himself “and (his) family members not to become a burden on the social assistance system of the host Member State during (his) period of residence and (has) comprehensive sickness insurance cover in the host Member State”.  So, unless 7(1)(b) applies whether he is habitually resident or not is irrelevant.

The question, therefore, is whether the son’s work is genuine and effective.  If it is then he is a worker and has a right to reside and she is possibly a dependent family member in the ascending line.  This will be a question of fact.  Does the son materially support his mother?  If yes, then she has a right to reside.  I think the DWP will argue that the support would have to be more than de minimis.

For the sake of completeness, for incapacity benefits then under the co-ordination rules the country where he works is likely to be the competent state.  If so, then Romania would be responsible for paying her any benefit to which she is entitled on the basis of incapacity.  For family benefits the situation is more complex.

Thank you . I thought I might be missing something since the LA have said that they accept that she has a right to reside if she is found to be dependant on her son, but that this does not give entitlement to claim HB. I thought that could not be right, as the key to claiming benefits is preceisely having the right to reside.

We now have to get them to accept that the son is a worker. He does have a letter saying he is employed and that job is permanent (but terms are flexible) pay is £150 per week, so can only try out best.

Thanks Nevip - hadnt really thought of her claiming in Romania and im not sure how their system works. If it is anything like ours, then she wouldnt qualify for the equivalent of contribution based ESA as she has never worked. I will certainly explore this more.

Thanks again