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

derivative right to reside

Kate S
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Staying Put services, Shepherds Bush Housing Group

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Joined: 13 April 2011

My client is a Portuguese national who is disabled and on DLA. He has been in UK since 2006. His Mother also a Portuguese national has been in the UK since 2001and was working, but I am not sure for how long.  She is my client’s carer and gets Pension Credit and carers allowance.

My client has never worked and has made a claim for ESA by phone, and the statement has been sent. They now are going to interview him under right to reside rules tomorrow.

do you think he would be eligible under derivative rights to reside? the CPAG book talks about children but my client is an adult.

I think he will not be eligible, but if anyone can give me advice, that will be great.

I looked at their passports, but there was nothing stamped there about their eligibility to benefits or anything.

Cordelia
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Welfare rights officer - Wrexham Council Welfare Rights Team

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Does he live with his mother?  If he is “dependent” on her then he may have a right to reside.

Kate S
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Staying Put services, Shepherds Bush Housing Group

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yes he does

past caring
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Welfare Rights Adviser - Southwark Law Centre, Peckham

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A few questions;

1. Although he may be an adult now, how old is he? If mother had a right to reside as a worker, then he will automatically have had a right to reside as a dependent up until he became 21. Conceivably, then, he could have acquired a right of permanant residence by the time he was 21.

2. Mother’s work and benefit claiming history in the UK (and that of any spouse if also an EEA national) will be crucial - i.e. if there is to be a possibility of his having acquired a permanant RtR . You will need to know whether she had a RtR throughout the 5 years in order to establish this. He could, have course (and by the sounds of it still is) been his mother’s dependent even after age 21 (and so have those years count towards a permanent RtR). I emphasise 21 only because of it triggering automatic dependency.

3. The fact that mother is in receipt of PC might be grounds for optimism (i.e. on what basis of having a RtR is it being paid to her?) but it doesn’t necessarily mean she has a RtR - or even that she had one continuously from 2001 down to present. Transitional protection rules could mean that if she was already in receipt of IS/JSA/HB as at April 2004 and has been continuouslyy in receipt of one of them since that she is receiving PC on that basis, rather than having an actual RtR.

4. If he’s only now claiming ESA, what has he lived on/how has he been supported previously?

past caring
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Welfare Rights Adviser - Southwark Law Centre, Peckham

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Cordelia - 15 April 2015 01:34 PM

Does he live with his mother?  If he is “dependent” on her then he may have a right to reside.

True, he will be his mother’s dependent. But it’s possible (even though she is receiving PC) that the mother may not herself have a right to reside - see my previous post on this. The issue of the mother’s RtR is going to be crucial.