× Search rightsnet
Search options

Where

Benefit

Jurisdiction

Jurisdiction

From

to

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

ESA and right to reside

Carol Laidlaw
forum member

Oldham Citizens Advice Bureau

Send message

Total Posts: 68

Joined: 20 June 2013

I am posting this in the slender hope that somebody might know more than me about European/human rights law (or benefits law!) and can suggest a solution:

Our (woman) client is a Polish national. She came to England as a fifteen year old with her parents on 26/06/2009. She went to school, then full time college course but did not complete the course. We do not know the date she left the course. She worked for different employers between these dates: 01/06/2011 - 01/08/2011; 01/08/2013 - 31/08/2013; 01/11/2013-12/01/2014; 14/04/2014 - 21/06/2014. The last job was a casual part time job.  She only claimed benefits, JSA, for the first time in November 2013.

She has been refused ESA on 3rd September as the DWP decided she has lost her worker status and no longer has the right to reside. More important, she has no right to housing benefit either. We are not sure if she will regain the right to HB, as there was a new rule brought in which bars foreign nationals from reclaiming HB after April this year if there is a break in their claim - not sure of the details of the new rule.

Does anybody have any clues how she might be able to win an appeal or MR to establish that she is entitled to ESA and housing benefit?
She has a possession hearing for rent arrears shortly, we mighht be able to get ths adjourned if we can establish that she is likely to get housing benefit to pay the rent with at some point shortly.

Cordelia
forum member

Welfare rights officer - Wrexham Council Welfare Rights Team

Send message

Total Posts: 149

Joined: 16 June 2010

What did her parents do in the UK?  If they were workers then she would have derived a right to reside from them.  And how old is she now?

If she’s under 21 and if one of her parents are working in the UK then she should have a right to reside as their child.  She doesn’t have to be living with the parent or dependent on them.

If she has clocked up five years continuous residence as either the child (under 21) of a worker, or a worker herself, then she will have a permanent right to reside. 

As long as she has one of the above rights to reside she can claim ESA and HB.

Bryan R
forum member

Folkestone Welfare Union

Send message

Total Posts: 233

Joined: 22 April 2013

If you’ve been legally resident in the Common Travel Area for a continuous period of at least five years you may have a permanent right to reside. If you have a permanent right to reside you don’t need to show that you have a right to reside for any other reason - for example, you don’t have to show that you’re a worker. Throughout the five years you must have been one of the following:
•a job-seeker
•a worker
•self-employed
•a former worker who has kept your worker status
•a student who is self-sufficient
•self-sufficient and supporting yourself financially
•a family member of a person in one of these groups.

Periods of jobseeking mixed with periods when you were working should count towards giving you a permanent right to reside.

Once you’ve acquired a permanent right to reside, you’re unlikely to lose it unless you stay out of the UK for two years or more in a row. However, you could lose your right to reside if you do something that is not seen as being for the common good. For example, you’ve committed a serious crime or put national security at risk.

So it appears from what you have said she would be eligible for permanent right to reside

See Here for further info and how to apply.

https://www.gov.uk/apply-for-a-uk-residence-card