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Forum Home  →  Discussion  →  Housing costs  →  Thread

Housing Benefit RTR, JSA as a EEA Jobseeker

Tom Shepp
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Sandwell Metropolitan Borough Council

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Hi Everyone,

We have a Polish Couple with 2 school aged children, not married, they came to the UK in 2014, he worked for approximately a year and stopped. She worked for about 6 months then ceased employment and did not make a claim for benefit, she then had a period as self employed and ceased trading at the end of 2016. Her children are now in school and where in the country with her when she was working.  It does not look like he has retained his worker status because he left work voluntarily.

He made a claim for JSA in September and was awarded this as an EEA Jobseeker, HB have advised that they cannot pay because they have received advice from the DWP that Article 12 is a derivative right of last resort and can only be applied if the person does not have a right to right reside as a qualifying person.

They advised “a derivative right to reside arises under Regulation 15A(4) of the Immigration (European Economic Area) Regulations 2006. This regulation says that the entitlement arises in the case of a person who is not an ‘exempt’ person. Reg 15A(6)(c) of these Regulations defines an ‘exempt’ person as someone who has a right to reside in the UK as a result of any other provision of those Regulations.“His JSA has now ended because after 3 months he failed the GPOW. HB have advised that they can now consider an application now that his JSA has ended and can consider a derivative right to reside now.

We are not sure whether this could possibly conflict with EU law as Regulation 492/2011 and whether Teixeira and Ibrahim cases should have any bearing and it is possible HB could be awarded based on a derivative right to reside whilst they were EEA Jobseeker.

I queried whether it would be possible to switch the claim to the partner, as per Regulation 87 of the 2006 regs. However HB have advised that this would not make any difference because they are both EEA Jobseekers and not eligible for HB even if claim is switched as was a joint claim for JSA and this must be exhausted before can look at alternative right to reside.

Have there been any court rulings on regulation 15A? Would appreciate any advice on whether or how this could be challenge this decision.  Thanks in advance

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

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I am also on the look-out for cases that will test this DWP advice.  I agree with you that it does seem to conflict with Reg 492/2011 and with the comments in the Teixeira case about parents not being excluded from social assistance.  It seems to me that, contrary to what DWP asserts, a derivative Teixeira right is not a right of last resort, suppressed by any other transient right of residence a person might have: the EU Regulation requires the worker’s child to be educated under the same conditions as the child of a host state national and under the “best possible conditions”.  If a British parent with a child at school signs on for JSA s/he is not deprived of HB, therefore in order to uphold the child’s rights under Article 10 of 492/2011 HB must be available to the parents in the same economic situation as a British JSA claimant.  Where the child’s rights as a conventional family member under the Directive are inferior to those guaranteed by Reg 492/2011 it is that Regulation which must “trump” the Directive and not the other way round.

That’s how I see it, but not aware of any direct authority on this as yet.  I suppose given the lead-in time since 1 April 2014 (the first date on which an EEA jobseeker on JSA could have been excluded from HB) we would only expect to see UT cases appearing early this year

past caring
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Welfare Rights Adviser - Southwark Law Centre, Peckham

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It’s absolute nonsense. Whilst it may be the case that for pure administrative convenience the DWP will seek to award IS/JSA/ESA on whichever is the ‘easiest’ basis and so look at Art. 10 rights only as a last resort (I’ve seen a number of clients with a permanent RtR awarded JSA on the basis of ‘workseeker’ therefore stuffing up the HB claim) a person may have more than one right of residence at the same time.

If I am self-employed and my spouse/civil partner is a worker, I have a RtR both as a self-employed person and as the family member of a worker.

If we are partners but not civil partners/married, I claim C-JSA or credits only JSA and retain worker status - if at the same time I have comprehensive sickness insurance and my spouse’s earnings are sufficient, I might also have a RtR as a self-sufficient person.

All children in education of EU workers have Art 10 rights - and the primary carers of those children currently have a right of residence as such, even though they may not need to rely on that right at present.

Elliot Kent
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Have to agree with the above; its surely antithetical to the whole concept of free movement that the granting of a right to reside under EU law would have no impact other than to deprive the claimant of an entitlement which she otherwise would have had.

It is at least a coherent argument based on the regs. I’m doing a derivative right to reside case at the moment where the MRN simply says “She is single so does not have anyone to derive a right to reside from”

Tom Shepp
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Sandwell Metropolitan Borough Council

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Thanks for the replies guys. It will be interesting to see when/ if there is any case law that makes a determination on this issue.

JPCHC
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Cardinal Hume Centre - Welfare Rights

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Hi all,

Are all local authorities maintaining this position?

I was just drafting a revision request arguing that the claimant has a derivative residence right but as JSA was awarded as an EEA jobseeker I fear this will be knocked back.

Perversely, this would then mean she would be better off it she stopped signing as she’d be eligible for housing benefit then based on her derivative residence?

Just wondering whether anyone is having any success arguing derivative residence for HB when JSA is awarded as a jobseeker.  If they’re not, I fear I’d have to advise her to stop signing? She has CHB and CTC to manage on but it doesn’t seem right somehow.  She’s in a very precarious situation so she couldn’t wait for an appeal…

Thanks in advance


I haven’t had experienced any problems with our Local Authority up until now, but I am about to challenge an Ealing decision so I need to kn

Our LA were accepting HB entitlement based on derivative residence right, even when claimant was receiving JSA as an EEA jobseeker.  I was just about to challenge another council and argue derivative residen

Tom Shepp
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Sandwell Metropolitan Borough Council

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Hi,

Ours still is, they have received guidance from DWP, which is fairly recent.
If they are following this advice they are likely to view a derivative right, as a ‘right of last resort’
I am not to sure about other LA’s because our tenancies are all within one council area. When an appeal has been submitted the HB team are sticking with original decision and not changing

Regards

Tom

[ Edited: 13 Jan 2017 at 12:31 pm by Tom Shepp ]
JPCHC
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Cardinal Hume Centre - Welfare Rights

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Thank you. Have you had sight of the DWP memo? I know the DMG has always said if you are not an exempt person, but I don’t recall HB making an issue of it on past cases.  I was wondering whether it was a ‘new’ problem so to expect pushback this time. Thanks!

Tom Shepp
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Sandwell Metropolitan Borough Council

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This is the response our HB team had to their enquiry to derivative rights and EEA Jobseekers. It wasn’t a memo, it was just this email in response to the query that our HB team had. And was sent on April 2016 by DWP.
” The Article 12 (derivative) right to reside is a right of last resort, ie it applies only if the claimant does not have a right to reside as a qualifying person - that is as a worker/self-employed person, jobseeker, student or self-sufficient person. In the case that you are dealing with, the EEA national had jobseeker status for 3 months, so during this period they can’t also have a derivative right to reside. The legal background to this is as follows:

A derivative right to reside arises under Regulation 15A(4) of the Immigration (European Economic Area) Regulations 2006. This regulation says that the entitlement arises in the case of a person who is not an ‘exempt’ person. Reg 15A(6)(c) of these Regulations defines an ‘exempt’ person as someone who has a right to reside in the UK as a result of any other provision of those Regulations.”
Hope this helps

[ Edited: 13 Jan 2017 at 01:41 pm by Tom Shepp ]