EU Lone Parent & IS Claim - Help

Many thanks HB for your reply. Just one more scenario for you or anyone else ( I promise). I will be attending a child in need meeting which is centred around another Polish lone parent where this time she has been in the UK for around 2 years. Social Services are adamant that the Polish mother is in receipt of CB, CTC and carer’s allowance as her child is in receipt of MRC of DLA.

I) Does she have a right to reside whilst claiming C/A for her disabled child.
ii) Even if she does have a RTR am I right in believing she cannot claim income support.
iii) Again if she is claiming C/A is she entitled to housing benefit.

Any input would be appreciated.

Sorry to be a pain but I would really appreciate any ones views regards my last post ie can a lone Polish parent with a 2 year old have a right to reside for income support purposes when she is already in receipt of carer’s allowance as her child receives DLA. Or can she remain and just live off the CB,CTC and CA and the child’s DLA etc.

Receipt of Carer’s Allowance in itself is nor relevant for RtR purposes - it has recently been confirmed at Upper Tribunal that receipt of Carer’s Allowance does give the recipient RtR as a worker or self employed - see http://www.rightsnet.org.uk/briefcase/summary/person-not-a-worker-or-self-employed-for-purposes-of-ec-directive-2004

Receipt of Child Benefit and CTC would suggest she does/did have a RtR on some basis as they both also have a RtR requirement. But don’t discount the possibility that they were awarded in error, or that that RtR has subsequently been lost and that they shouldn’t actually be in payment.

So you need to look at her other circumstances to determine if she is has a RtR for the purposes of IS and HB.

If she is doing some work/self employment within the CA earnings limit is it arguable that she is a worker subject to that work being genuine and effective. Otherwise you are likely looking at her deriving a right via a family member - e.g. her spouse if she is still married to a former partner and that person is also an EAA national with their own RtR.

CAB Adviceguide has a good generic summary of the routes to a RtR.

http://www.adviceguide.org.uk/england/benefits_e/benefits_coming_from_abroad_and_claiming_benefits_hrt/benefits_eea_nationals_and_the_habitual_residence_test.htm

Just another query in this area of law - Can someone again advise me on the position of the Teixerer and Baumbast cases in that what were the circumstances where an EU national was a lone parent but was allowed income support because the lone parent stated on their income support application that they were looking for work. I have looked at an IS application form and cannot see where it asks for current work seeking etc. An idiot’s explanation of this case would be appreciated.

That’s something else entirely.  The case you are thinking of is Secretary of State for W&P v Elmi.

Briefly, EEA workers who become unemployed retain their right to reside as a worker as long as they remain in the job market and register as a job seeker.  The way DWP screens claimants, if you are a carer or a lone parent with a young child you will be streamed towards claiming IS at an early stage of the process and this means that you don’t register as a job seeker in the way DWP normally understands that term. However, EEA nationals are issued with a separate habitual residence questionnaire which asks whether the claimant is intending to work in the UK.  This can satisfy the requirement to be registered as a job seeker.

There is nothing wrong with DWP insisting that a person relying on retained worker status signs on for JSA, or satisfies equivalent UC conditionality, but in the Elmi case that had not happened and the court was not prepared to allow DWP to retrospectively move the goal posts.

Retention of worker status is a separate right of residence from the “derived” rights of Teixeira type carers - that’s why you won’t find it discussed in Teixeira and similar decisions.

And you won’t find the question on the main IS form.  It’s on the supplementary form issued in potential hab’ res’ cases.

The following is from Disability Rights UK….

“Note that the judgement is concerned with IS claimants who have previously worked and are arguing that they retain worker status. Claimants who have never worked but are seeking work will not be able to rely on this decision to show that they have a right to reside as a jobseeker, because Reg 21AA(3)(b) of the Income Support (General) Regulations 1987 provides that the right to reside as a jobseeker does not qualify the claimant for IS.”

Therefore can a Polish lone parent who has worked eg for 3 years, actually claim and receive income support whilst her child is in education up to 5 years old and if so does he/she still have to actively look for work. Also must the lone parent have been forced to give up work (redundancy or end of contract) in order to get IS oppose to simply choosing to claim IS after voluntarily leaving their employment.

Former workers can rely on Elmi to claim IS instead of JSA.  Former workers or spouses of former workers, who are carers, can rely on Elmi or Teixeira to establish a right to reside if the child is in mainstream (i.e. primary or secondary) education.  For the meaning of the term “involuntarily unempl;oyed” see below.

In principle yes, as long as they are genuinely seeking work.  They must be “involuntarily” unemployed, but this does not only mean redundancy/end of contract etc: you can resign from a job, for instance because the hours are too inflexible, as long as you are still in the market for other work that would be effective and genuine.

However, after retaining worker status for six months the onus will shift to her to provide compelling evidence of realistic work prospects - since the start of 2014 it has been much more difficult to retain worker status for longer than six months.  So what you suggest is only possible in most cases if there will be a child at school within six months of the claimant leaving work ... at that point her Teixeira right will kick in.  But she will only remain entitled to IS for as long as she satisfies the normal entitlement conditions (perhaps another younger child), otherwise as soon as the kid is 5 she’s got to claim JSA just as any lone parent would in the same situation.

FAO HB - Therefore the lone parent can claim and receive IS for 6 months but must actively look for work during the 6 months when in receipt of the IS. If the lone parent has to look for work in any event then why doesn’t the lone parent just claim JSA - what’s the benefit of the IS claim!

The work seeking is less rigorously policed by DWP and you are unlikely to be sanctioned

All makes sense then - many thanks.

HB Anorak - 24 November 2014 02:43 PM

The work seeking is less rigorously policed by DWP and you are unlikely to be sanctioned

Whilst this is true, it’s also the case that this less rigorous policing might mean that a claimant finds it more difficult to establish that they remain in the labour market - certainly, the onus will be on them to show that this is the case. Which will mean that they will have to keep scrupulous records of what they have done - and quite possibly retain those records for a number of years.

And again, because the issue is only likely to arise retrospectively, by the time the claimant becomes aware that there’s a problem, it will probably be too late to do anything about it.

FAO HB (and others) Again for the purpose of clarity does the ELMI case allow the ex EU worker to claim Income Support (whilst still looking for work) for any period of 6 months ie from the day of delivery up to any time the child becomes 5 or is it this precise window when the child can enter main stream education again up until the age of 5. Many thanks JM

Not quite.

Elmi was about what is required to retain worker status. The Citizenship Directive requires only that the person is duly registered with the appropriate unemployment office and that they remain in the labour market. The Secretary of State’s position was that the requirement could only be met via a claim to JSA - the claimant’s was it could be met via a claim to IS. To an extent this depended on the particular facts of the case - Ms Elmi had ticked ‘yes’ to the question on the HRT2 form ‘Are you looking for work in the UK?’ - the UT’s decision and later, that of the CoA might have been different had that not been the case.

The decision could equally apply to a person of either sex who is not a lone parent who claims IS on the basis of being a carer - though arguably they might have to confirm that they would give up their caring duties were they to find employment.

St. Prix might be more the case you are after. Here the ECJ held that a woman who was forced to give up work due to pregnancy, who claimed IS and who then returned to work within a reasonable timescale after giving birth remained in the labour market and retained her status as worker.

On one reading of St. Prix the 5 years could be argued for - it says that an EEA national should not be treated less favourably than a citizen of the host member state in terms of when it is considered reasonable for her to return to work, but I’m not sure that’s been tested as yet.