EEA National and Housing Benefit (no JSA or IS)

Hi

Hoping someone can help with my query.

I have just about got my head round JSA and EEA Nationals but I now have a client who has no JSA as she has a husband that works and I need to make sure they can get HB as they are hoping to rent a house (currently renting a room)

Client is Hungarian, she came to UK in April 2011 with her family. At the time she was 19yrs old. She has worked on and off since then and has provided some payslips for 2012 and a few for early 2014 (none for 2013 but claims to have worked).

Her husband is from Sri Lanka and came to UK in June 2011 for a Business Studies course, his passport from that time showed no recourse to public funds.

In May 2013 they got married and he now has a UK Residence Document, under type of document it says ‘Residence Card of a Family Member of an EEA National’ and says that ‘Employment and Business Activities allowed’.

Client stops work in Jan 2014 as she returned to Hungary for 8 weeks as her mother was very ill. She has not worked since she returned as she falls pregnant - baby born a few weeks ago.

Husband works 15 hrs per week and earns £380pm.

They have been living on his wage as only renting a room from a friend and they are not charged much.

So will they be able to claim HB if they rent a 2 bedroom house?

Thanks for any help.

Unfortunately not,  see reg 10 of the HB regs.

“3B) A person is not a person from abroad if he is—
(a) a worker for the purposes of Council Directive No. 2004/38/EC;
(b) a self-employed person for the purposes of that Directive;
(c) a person who retains a status referred to in sub-paragraph (a) or (b) pursuant to Article 7(3) of that Directive;
(d) a person who is a family member of a person referred to in sub-paragraph (a), (b) or (c) within the meaning of Article 2 of that Directive”

His rights derive from the fact the EEA national is a “worker”, “self-employed”, or retains “worker” status….etc. As she is not working,  or retained the status, not self-sufficient, not a student…...etc, they can’t claim HB.

Thanks chacha

So my only option is to get her to go back to work asap - although I doubt she will want to do this yet as the baby is only 2 weeks old?

That is probably the best option, she wouldn’t necessarily need to find full time work, I would think working between 8-12 hours a week, on maybe £7-£8 per hour, part time should just about get her over the line and be deemed a worker.

There is the possibility of arguing that she actually retained her right to reside when she stopped working to attend to her mother in Hungary. In Saint Prix, the CJEU made it clear that Directive 2004/38 does not limit the circumstances in which a person who stops working has a right to reside. You could argue that the reason she stopped working was so important that it would be unreasonable to deny her a right to reside for this period, especially as the right to private home and family life is protected by article 7 of the EU Charter and article 8 ECHR. You could also drawn an analogy with article 16 (3) of the Directive which says that periods of continuity of residence shall not be interrupted by periods spent abroad for important reasons such as (but not limited to) illness and childbirth.

If this reasoning is correct, for the period when she de facto stopped working until she became pregnant she retained her right to reside (retained worker status). This would be for a reasonable period of time only—probably for as long as she was caring for her mother—and then for a bit after to give her a chance to look for work (?6 months). Then add in the pregnancy which you could argue extends this time.

However I stress that this is untested and as I was writing the above it started to sound more and more tenuous. There is no guarantee the Tribunals would agree—either on the law or on the facts of the case—and this would only give her a right to reside for a short period of time from now (only for as long as is reasonable for her to take up work again).

As to what constitutes genuine and effective work, chacha’s estimate would almost certainly do but remember there is no bright line. A person working just 5.5 h/w at EUR 7.87 p/h was found in Genc to be doing genuine and effective work. See the discussion on the minimum earnings threshold in the WRB: http://www.cpag.org.uk/content/residence-rights-and-wrongs