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

Right to Reside and ESA/JSA appeal

WROTricia
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Advice Works, Renfrewshire

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I have a R2R appeal coming up for a 33 year old Slovakian national who has been in the UK since Oct 2011. Claimant has worked a total of 2 months over 2 periods the last ending in July 2015. No retained worker status and exhausted Jobseeker status. Receives PIP, lives with parent who receives Carers All. Looking for anything that might help with argument that R2R is based on receiving care in the UK. Does anyone have any advice or resources that might help. Many thanks :)

1964
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Deputy Manager, Reading Community Welfare Rights Unit

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It isn’t sounding promising to me. Does the parent have any other income? I suppose you could argue that the parent is ‘self sufficient’ and therefore client has a RTR via them (as a dependent family member) but unless parent has income other than the CA (and medical insurance) I can’t see it running. Unless parent has a permanent ROR?

WROTricia
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Thanks 1964, last minute HB decided perm R2R for parent so derived RTR for cl on the back of this. Hopefully.

WROTricia
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FTT adjourned case for DWP to respond to HB decision and submission re:  derived R2R, seemed very hopeful at the time that a positive decision would come back from DWP but appeal has now been relisted and DWP have made a further submission that cl does not have a derived R2R as parent was not a qualifying person for a period of 5 years, parent appears to have had 2 periods of residency separated by approx 2 years, most recent arrival to UK in 2011. Their submission also states that “there is no indication that a HRT or R2R test was performed” in regards to the parent, is it likely that this will now happen and that parents award of CA/PC is in jeopardy?

The concluding paragraph states “It cannot be shown that client can derive a R2R from his parent as on the available official records his parent did not have worker status at the date of claim to PC (reg 7) nor was he a qualified person for a period of 5 years (reg 15).” My submission argued that the derived right to reside came from dependency - this argument is not mentioned in the DWP submission, do others think it has been ignored because the DWP are now questioning the parents R2R?

If DWP have awarded parent benefits without HRT or R2R tests what are the odds they will now initiate this?

Any help with this gratefully received. Many thanks.

WROTricia
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Advice Works, Renfrewshire

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Not sure how to attract any further replies other than to post again and hope it shows up in folks new post list. Apologies.

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In short, yes.

If your argument is that your client (person A) has a right to reside as a dependent family member of a person with their own right to reside (person B) then the DWP does not have to deal with the dependency aspect (i.e. whether or not person A is actually dependent) if they can show that person B does not, in fact, have a right to reside.

The dependency is the easy bit - if person A is getting PIP and person B is getting CA for looking after them, then you’re knocking at an open door arguing dependency. And HB will simply have accepted a right to reside on this basis because person B/the parent is getting Pension Credit - i.e. they’ll have taken person B’s right of residence as a given.

Unfortunately, the DWP do sometimes make mistakes - even on right to reside issues - in a claimant’s favour. And if that mistake comes to light they’re not bound by it - they have to correct it.

Not saying that is what happened here - it’s just as likely (actuallty more likely) that a proper investigation into person B’s right to reside was conducted when Pension Credit was awarded and that now Pension Service cannot find any record of this, than that no investigation was carried out all.

But this does mean that you are going to have to investigate whether person B/the parent did have a right to reside when Pension credit was awarded.

WROTricia
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[/quote] But this does mean that you are going to have to investigate whether person B/the parent did have a right to reside when Pension credit was awarded.[/quote]

Thank you very much for your reply. I have a mandate for the parent so I could ask PC what R2R they had when PC was awarded but have held back in case it prompts them to look at their decision again, perhaps unfavourably. Your reply indicates I don’t really have any other choice though???

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No - I don’t think you do have any choice…..

But I wouldn’t rely on what the Pensions Service have to say. I would ask the parent to tell you themselves about the history of their residence in the UK;

- when did they come here?
- were they employed? or self-employed? If so, when and for how long?
- if not employed themselves, were they the spouse of a worker or someone else with a right to reside?
- did they have any periods after acquiring worker status when they retained status via JSA or ESA claims?

.....and so on. Get as much detail as you can.

In short, work out for yourself whether by the parent’s account whether or not they have a right to reside and whether this might be a permanent one. If they have evidence (wage slips, p45s, P60s) great - if they don’t then don’t worry too much so long as they can provide enough detail about periods of employment etc to allow you to come to a definite view about whether they have a right to reside.

Assuming that you are certain that they do have a right to reside, you then supply their authority to the FtT and ask that it directs the DWP to provide details of NI contributions paid etc - this will be evidence of their employment history and will establish that they do in fact have a right of residence…..

WROTricia
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In their submission to the re-listed FTT the DWP have included details of parents NI conts and their potted history of time spent in UK including the 2 year absence - parent categorically states this is not true. I am meeting with them shortly so I will take all your great advice and see where i go from there. Thanks again :)

WROTricia
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Me again, really appreciate all your help. Parent has confirmed no absence from UK and working throughout the relevant period and advised that PC sent a VO out to do a verification visit before PC award was made. Trying to resolve this before case calls next week as I believe client def has a derived RTR. However, speaking to the DWP they are advising that parent gets PC only due to living in UK for 2 years prior to claim!!! Please advise me if i have missed something or can continuous residence for 2 years, with no other qualifying criteria, be enough to get RTR for PC? I have looked at all the books we have and online and cannot find anything to support his view. Many thanks once again.

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It’s utter garbage - I assume this has simply been said on the telephone, rather than the DWP having committed itself to this nonsense in writing?

Anyway, two points;

1. It is a basic tenet of right to reside legislation and caselaw that no-one can acquire a right of residence (particularly a permanent right of residence - and it appears the DWP over the phone concede the parent has this) simply be mere presence. You have to be exercising some sort of EU Treaty right - as a worker, self-employed person, self-sufficient person etc. Or you have to be the family member of a person exercising such a right.

It might be worth while going on a right to reside course/training so you have a foundation in these basics…...

2. As pointed out above, you are going to need to establish that the parent has a right of residence in your sub to the FtT. So you need to;

i) identify what that right is - it very much sounds to me as if that right is going to be under reg. 15. 1 (c) of the EEA Regs - “a worker or self-employed person who has ceased activity”. That is defined by reg 5. of the EEA Regs - http://www.eearegulations.co.uk/Latest/ByPage/part1_5 - you need to look and see where what the parent says about their residence in the UK meets those conditions.

ii) having identified what the right is the parent is relying on, say this expressly in your sub - and identify why her circumstances meet those conditions.

iii) is it the case that without the alleged two year absence the NI contribution record would be enough to establish a permanent right of residence? Is the DWP argument essentially that she lost that permanent right of residence because of the two year absence? Or is it saying that even without any absence she would not have had a permanent right of residence?

We need to be clear which before going further - if the DWP’s case is that she lost a permanent right of residence because of a two year absence and the parent says she never even left it should be fairly easy for her to pprovide evidence of this…..

WROTricia
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Thanks, I just wanted to make doubly sure I was correct that this is rubbish. This info was given by Pension Service to the appeals officer at DWP dealing with the case. My submission states dads RTR is under the reg you stated as he was a worker until PC claimed - it is DWP who are complicating things. They would benefit from a course but point taken.

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Sorry, aye, that came across as a bit arsey maybe. I know at times they can come out with such guff it can make you doubt your own sanity…..

WROTricia
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Thanks for help and advice, decisions overturned prior to appeal, both parties have perm RTR. All parties delighted and I even cried a little. It’s been a hard slog.

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Good result - well done.