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EU Single Parent & IS Entitlement
I know that this subject has been talked about a great deal before but it still baffles me with regards all the case law. Eg A polish lady is now estranged from her UK partner and is now the mother of her child. All the case law goes on about he child’s right to be in the UK for educational purposes. The education referred to is that of compulsory education ie from about 5 years onwards. However income support for lone parents stops in any event when the chid reaches 5 years old.
So can the Polish lone parent claim and actually recieve IS from the first possible date that the child enters proper education up until the child is 5, even if this period is about 3 months or so.
I don’t see why not. If the only right to reside is as the primary carer of the child of an EEA worker in education and the other rules for IS are met, that should do.
If the Polish lady was married to her partner, she can still use his right to reside to obtain benefits if she has no alternative, for as long as they remain married.
A right to reside through the child is useful for other benefits as well. For example, it could enable her to claim Housing Benefit and to remain on Jobseekers for longer than the 91 days that many Europeans are limited to.
A polish lady is now estranged from her UK partner and is now the mother of her child. All the case law goes on about he child’s right to be in the UK for educational purposes. The education referred to is that of compulsory education ie from about 5 years onwards. However income support for lone parents stops in any event when the chid reaches 5 years old.
Sorry, but as the partner is a UK citizen none of this is going to help, unless your client has actually worked in the UK or can meet the conditions of any other status, none of the EEA right to reside conditions will help, and the child will have to be in danger of not being able to continue in education for the primary carer rules to apply if she has worked.
Is this a civil partnership (sorry to be dense)? As described, the partner has legal responsibilities towards the child ie to support it and the client has a right to work or to look for work for 91 days before GPOW test kicks in.
As Chacha says: if the polish lady is married (or in a civil partnership) and her spouse (or civil partner) is from the EU but not the UK, then she is a family member and can claim benefits according to the status of her spouse (or civil partner). If not, then not. I think.
Oops, I missed that her partner was British!
So did I!
Ok, plan B. Has she worked in the UK since the child was born?
Yes she has worked since the birth of her child but approx 6 hours per week if this helps. Again is there any possibility she can claim IS (and others in her position) from the material time the child enters compulsory schooling up to the age of 5 even if this is for 1 or 2 months.
You could try to argue she is a worker that the work is not marginal and ancillary. It appears be 6 hours but for a considerable period when she was main carer for a young child. There is plenty of case law on this and check her past employment details to ensure it has not done more work in the past.
compulsory education starts at the beginning of the term after the child turns 5.
most children start (in practice) at some point when they are 4, but they don’t have to.
so, unless I am misunderstanding, there would be no time when child was in compulsory education but was not yet 5
Still very confused - Am I right in believing that the numerous EU cases eg Baumbast, Texiera etc merely allow the single parent to stay in the UK perhaps to look after their 7 year child who is in compulsory education. If so is it correct that the said parent would have a right to housing and council tax benefit together with child benefit and CTC and not the other income based bens eg IS,ESA and JSA etc.
In summary, if the mum has worked at some point in the UK (and the work was ‘genuine & effective’- which it could be even if she was working only a few hours per week- it depends on the circs) she will have a RTR via any children she has who are currently of school age (and attending school). So she will be entitled to any benefits subject to the RTR test. If she has other children under 5 she could claim IS but if children are 5+ she will have to claim JSA (as would any other LP). She will be entitled to HB, CB, CTC, etc.
If the mum has NEVER worked in the UK she can’t take advantage of this but if she was married she would potentially have a RTR via her estranged husband (so long as he is also an EU national).
If the mum has never worked in the UK AND was not married it becomes more complicated….on the face of it she would only have a RTR as a Jobseeker (so would be limited to 91 days of JSA and no HB entitlement) though it may be possible to find another route to her having a RTR- or even that she has aquired a permanent right of residence (depending on how long she has been in the UK, etc).
The issue around being able to stay in the UK in order to see a child through school was the subject of the Zambrano case (which established- and correct me if I am wrong or over-simplifying things- that someone from outside the EU could have a right to remain in the UK whilst child was in education here but would not be entitled to claim benefit).
Still very confused - Am I right in believing that the numerous EU cases eg Baumbast, Texiera etc merely allow the single parent to stay in the UK perhaps to look after their 7 year child who is in compulsory education. If so is it correct that the said parent would have a right to housing and council tax benefit together with child benefit and CTC and not the other income based bens eg IS,ESA and JSA etc.
They have the right to the DWP benefits as well, but subject to the normal eligibility conditions: so once your youngest child is 5 you cannot claim IS as a lone parent and you will have to sign on. Essentially a Teixeira-style carer is in exactly the same position as a British lone parent.
so, unless I am misunderstanding, there would be no time when child was in compulsory education but was not yet 5
Maybe even before 5, I know it’s only 6 hrs a week of work but it’s more than worth a shot, and the UT case, Shabani. I know the “compulsory age” in the Education Act has not been amended but the SoS conceded it should?
Don’t know if it’s of any use, so I/S till 5 and JSA afterward?
https://tribunalsdecisions.service.gov.uk/utiac/2013-ukut-315
3. A further concession made by the Secretary of State in the course of the present case is that for the purposes of new regulation 15A of the same Regulations (if not also as a matter of Court of Justice jurisprudence) the primary carer of the child of an EEA national/Union citizen who has been employed in the host Member State is entitled to a derivative right of residence once that child has entered into reception class education. The Secretary of State has indicated that the definition of “education” is to be reviewed.
compulsory education starts at the beginning of the term after the child turns 5.
most children start (in practice) at some point when they are 4, but they don’t have to.
so, unless I am misunderstanding, there would be no time when child was in compulsory education but was not yet 5
Education for Teixeira purposes starts with the reception class.
So again, if the lone EU parent has worked in the UK can he/she claim income support for the period from when the child enters reception class up until the child is 5. Again (and sorry to be thick) but do these cases ie Texerirre etc merely allow the parent to physically stay in the UK as the primary carer or allow the lone parent to claim IS.