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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

ESA rtr query - extended family members

MMiah
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Benefits Department, Crystal Law Solicitors, Leicester

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Joined: 11 February 2015

Hi Rightsnetters

Hoping for a quick explanation on a rtr query for an extended family member.

Reg 8(3) EEA Regs 2006 allows siblings to be extended family members on serious health grounds. 

Does this need to be qualified with a residence card/permit?

I am not in the office and don’t have my pool of text books/resources at hand and online the information isn’t particularly clear.

Brief Facts
1/11/2007 - client arrived in UK from Italy
1/10/2008 - 5/1/2010 - client worked full time - involuntarily unemployed (redundancy)
10/1/2010 - 6/12/2010 - JSA claim
6/12/2010 - 21/3/2011 - client abroad sick father
21/3/2011 - 21/11/2011 - no claim for JSA (client insists she made a claim but DWP have nothing)
21/11/2013 - 21/8/2013 - JSA claim
22/8/2013 - ESA claim made and rejected on rtr


Client has already been to tribunal and lost (we are awaiting a statement of reasons)

We have now been instructed and looking at a new ESA claim and appealing the other case.

Alot will depend on if client has gained Permanent Right to Reside by remaining a worker.  Only issue I am seeing is worker status or extended family member status between 6/12/2010 - 21/11/2011 (when client went abroad and returned without any JSA claim for months). 

Any tips would be extremely welcome. 

 

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

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Extended family member of whom?  You mention siblings, so has the client got a sibling in the UK?  Extended family members do require residence documents: the Regs are structured so that you need a document and circumstances consistent with it.

Can you check the dates in your chronology: two years between November 2011 and November 2013 are unaccounted for.  There is a chance of permanent right to reside but I think a lot depends on whether the 2011 date is a typo or the 2013 date.

Thanks

MMiah
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Benefits Department, Crystal Law Solicitors, Leicester

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Total Posts: 50

Joined: 11 February 2015

Thanks for the response HB,

The date referred to is a typo it should read ...

“21/11/2011* - 21/8/2013 - JSA claim”

Client sister is in UK, sister is an EEA National, currently working f/t here. 
Sister has irrefutable Permanent RTR

Client now has PIP and is cared for and dependant upon sister for finances, accomodation, care, transport etc. 

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

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Thanks.  The period of absence from the UK isn’t a problem - it was less than six months and the five years for a permanent right to reside can take that in its stride.  The tricky part is from March to November 2011 and I guess this is probably what the Tribunal homed in on. Two possible ways that period could count towards the five years:

- retention of worker status from before, or
- starting afresh as work seeker

By the time she claimed ESA she would need to have already chalked up five years (including those six months) or still retained worker status (including those six months).  Absence of evidence of serious jobseeking and (in case of retained worker status) failure to be registered with DWP (according to their records at least) may well prove fatal.  It does all look a bit tenuous, but when you see the SOR you might find something you can hang an appeal on.

She ought to apply for an extended family residence document to protect her position now - then at least she could claim ESA going forward.

MMiah
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Benefits Department, Crystal Law Solicitors, Leicester

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Total Posts: 50

Joined: 11 February 2015

Thanks for advice and tips,

The March - November gap appears to make all the difference.  I am going to dig deeper with the client in respect of this period. 

The family resident document is a great idea and a secondary route to gain current and future entitlement. 

Thanks