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Forum Home  →  Discussion  →  Housing costs  →  Thread

EU worker status / freedom of movement /caring responsibilties query

Alice
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Community Care & Welfare Rights, Brighton Housing Trust

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Joined: 27 June 2012

We have an Algerian client who’s wife who is a French national. They are based here - she was working part time and claiming JSA(ib) on and off until December when she had to keep travelling back to France to look after her sick mother who has no-one else to care for her. He is now working part time. He has never left and she only leaves for a couple of weeks at a time.

The DWP say that she is no longer habitually resident and HB are saying she has no right to reside, on the basis that if she had obtained worker status, she will probably have lost it when she left the country and his EU rights as her husband are no longer effective when she is not resident in the host state. However they are prepared to look at this in more detail as it was never made clear to them that she was only temporarily absent due to caring responsibilities and as such may still be based here. To reinstate the claim they would need to be satisfied that she had attained and retained worker status.

My query is: can a person retain their worker status and thus exercise a right to reside that is sufficient for them to continue claiming HB while they come and go between their host and home state for reasons such as this? Most case law is quite specific when it comes to retaining worker status being reliant on either working or continuing to attend the Job Centre to sign on.

ANY thoughts/ideas gratefully appreciated.

nevip
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Welfare rights adviser - Sefton Council, Liverpool

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Temporary absences, of themselves, do not break habitual residence nor lose you the right to reside.  For HR there is no fixed period.  It all turns on the facts of the case.  For RTR the period is two consecutive years.  They say the facts were never made clear to them.  That’s fine as long as they asked all the right questions.

Alice
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Community Care & Welfare Rights, Brighton Housing Trust

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Thanks nevip. It’s just emerged that JSA stopped because she was earning too much in her part time job, which was why HB stopped in Dec, but I’m not sure whether she was invited to make an in work claim. At any rate that was when she started coming and going and the partner, our client, returned a form putting himself as the main claimant. I now think what they’re saying is that it would now be a new claim period and she’d lost the right to reside through stopping working…although this has not been properly explained to her yet

COBrien
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York Law School Law Clinic

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Dear Alice,

This sounds like an interesting case - it sounds as though the exact work and job seeking history would be relevant to the status of the supposedly ‘new claim’. As noted temporary absences shouldn’t affect HR or RTR, though may be DWP are arguing repeated absences made her not available for work. But possible she could claim retained worker status.

In any case, I’m an EU rights specialist; a long term CAB adviser and an academic in EU welfare law at the university of York, undertaking CAB casework, as part of a research project on accessing EU rights. Based in Ripon CAB I’m taking on cases (mostly in the northern region) but also consulting on cases around the country, and in the process documenting the obstacles EU claimants face, with claimant consent of course.

I’d be very happy to chat with you about the case, and help with drafting an appeal (if it comes to that). If that sounds good, please drop me a line at .(JavaScript must be enabled to view this email address).

(You can get more of a sense of the project at http://www.eurightsproject.org.uk)

Charlotte

Alice
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Community Care & Welfare Rights, Brighton Housing Trust

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Hi Charlotte,

Wow! What you’re doing sounds incredibly exciting. I was just talking to a colleague the other day about how many of these cases we come across and we were discussing how effective a local EU welfare rights advice service would be in establishing a sense of citizenship - even just accessing coherent advice about one’s rights as an EU citizen, let alone being enabled to enjoy them, must increase a person’s sense of being an EU citizen.

Anyway I will email you directly, thanks!

All the best, Alice

MNM
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Solicitor, French & Co Solicitors, Nottingham

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Interesting one - from a housing benefit perspective, in the past I had a case like this and regulations provide that an authority should determine whether entitlement exists beyond the date of qualifying benefit ending (as you say an ‘in work claim’) without the need for a new claim. 

I’ve not got access to resources this minute but it may be HB Reg 77 or 80 which requires that the authority make enquiries before terminating the award. 

If you can establish entitlement continues than the 13 weeks temporary absence rule will apply.

In terms of RTR and Hab res, as Charlotte notes, a lot will determine on specific case facts.

There seems to be a greater influx of these type of cases and it is surprisingly how many are overturned on appeal.