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Forum Home  →  Discussion  →  Benefits for older people  →  Thread

Pension Credit-habitual residence

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David Brown
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I have a client who has been refused pension credit on the basis of the right to reside and habitual residence tests. It has now gone to appeal. The client is an Italian citizen originally from Somalia.

The client came to the UK in 2010. He receives attendance allowance at the lower rate which is his only income. The client is 70 years old.

He worked in the UK from 31/05/11 to 15/11/12 and from 06/07/15 to 10/11/15. He is now unable to work due to ill health. I have argued that he retained worker status both on the basis that he is a worker who has become permanently incapacitated and as a worker who has reached retirement age. I also quoted the Upper Tribunal decision TG V SSWP (PC) 2015 UKUT 50 AC which decided that mere presence in the UK was enough to satisfy the residence conditions. It appears possible that the D.W.P. may ask for a stay of the appeal if it is found that the residency provisions within regulation 5 are a specific issue in the appeal.

The D.W.P. is arguing that the client did not retain his worker status because he did not register for work-presumably this means claim jobseeker’s allowance-in the period between jobs. However, he could not do this as he was over 65 in 2012 and so over retirement age, for the same reason he could not have claimed employment and support allowance. My next step will be to make a submission pointing this out.

The D.W.P. are also stating that there is no evidence that the client ceased activity as a worker on 10/11/2015 as a result of a permanent incapacity. The client provided a statement of ‘fitness to work’ (sick note) from his doctor dated 10/04/16, but this is only valid form this date. The client also had a letter from a consultant about his health problems dated 18/12/14, however the client worked after this date.

It appears that the client’s last employment ended because it was temporary. If there is a gap between someone ceasing work and becoming incapacitated does that mean that he cannot retain worker status as someone who is permanently incapacitated?

I have tried to summarise as much as possible, but as usual with right to reside it is rather complex!

Any advice as to how to respond further to the D.W.P.‘s arguments gratefully received.

David

Paul_Treloar_AgeUK
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Hi David, What a tricky situation. He’s seems to fall between the cracks in some respects.

The issue of retained worker status seems to be key for me. for the period between 15/11/12 and 06/07/15. If could establish this, then he would be able to acquire a permanent right to reside as he would have worked for the preceding 12 months and lived here for more than 3 years. So you wouldn’t need to worry about the permanent incapacity so much.

However, the Migrants Handbook 7th edition is pretty clear(p.139 onwards) that he would either need to be involuntarily unemployed and registered as a jobseeker, which seems unlikely from your account, or have been unable to work because of a temporary illness - I think this has some merit.

See p.143 on temporary illness, which delinks this from receipt of benefits. Thus, if you can obtain evidence for the period above that supports a contention he was temporarily incapacitated, the fact that he did return to work subsequently shows that the illness was indeed temporary and so he had worker status throughout from 31.05.11 onwards.

On that basis, when he subsequently made his PC claim, he can acquire PRR in under 5 years as he has reached retirement age and has worked in the preceding year and resided in the UK continuously for more than 3 years (p.180-181).

I’m would hope someone more knowledgeable might come along and give an opinion on this line of argument, as it is, as you state, a particularly tricky area of law and not something I have a great deal of confidence in advising on.

[ Edited: 25 Jun 2016 at 01:39 am by Paul_Treloar_AgeUK ]
SocSec
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what did your client live on from 2012 to 2015 ?

Paul_Treloar_AgeUK
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SocSec - 21 June 2016 03:18 PM

what did your client live on from 2012 to 2015 ?

If it was Attendance Allowance as now, it strengthens the merits enormously. Illness clearly temporary to a degree as he was able to go back to work which isn’t in any way inconsistent with maintaining AA claim either.

[ Edited: 22 Jun 2016 at 10:09 am by Paul_Treloar_AgeUK ]
SocSec
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do the rules on retirement help at all ???

Paul_Treloar_AgeUK
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SocSec - 22 June 2016 09:03 AM

do the rules on retirement help at all ???

In a nutshell, no.

SocSec
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is that because he has not reached retirement age yet ?

SocSec
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I wondered if the info on page 181 of the cpag migrants handbook applied to this man !

Paul_Treloar_AgeUK
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SocSec - 22 June 2016 10:44 AM

I wondered if the info on page 181 of the cpag migrants handbook applied to this man !

Don’t have handbook to hand but when I checked, it didn’t offer much from my reading.

SocSec
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I think it might be useful, if he is 70 now he may have reached retirement age when he last worked which was 2015 I think , Pension credit are quite good at discussing cases on the phone and if the advisor can get hold of the decision maker and have a chat with the handbook or preferably the legislation in from of them I have known them to change their decision quite readily.

Paul_Treloar_AgeUK
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SocSec - 22 June 2016 10:44 AM

I wondered if the info on page 181 of the cpag migrants handbook applied to this man !

Ok, checked back and if the issue of retained worker status isn’t dealt with for the gap between periods of employment, then the client cannot take advantage of the early PRR under rules of retirement as he won’t have worked in UK for preceding year (06/07/15 to 10/11/15 which is only 4 months).

Unfortunately, he also hadn’t quite lived in UK for 3 years at the point he finished working first time around, otherwise he may have been able to acquire PRR under those rules after ceasing work initially.

[ Edited: 23 Jun 2016 at 09:08 pm by Paul_Treloar_AgeUK ]
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Paul, looks like that’s it then !
I have had 2 cases over past couple of years which as with this one appeared hopeless, but upon appealing on what few straws I could cobble together the DWP suddenly decided for reasons never explained that both clients [ one Italian and the other Polish ] had a right to reside and paid up. Never did find out the reasons and thought it best not to inquire too closely.

David Brown
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The client made a claim for attendance allowance in 2012. This was refused and he appealed. It is not clear if he won the appeal or lost it, and he applied again and was then awarded the benefit. I am going to ask that the D.W.P. produce a medical report that they asked for regarding the original application.

The client receives a very small UK state pension.

It is not clear what the client lived on between his periods of employment, before he was awarded attendance allowance. He may have been supported by his nephew, who is a British citizen.

It is unfortunate that the client was not in the UK for 3 years before his first employment ended as there would at least then be the possibility to argue that he had acquired a permanent right of residence as a retired worker.

I will argue that the client was temporarily incapacitated between his periods of employment, as this seems to give the only possibility of success.

David

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If he gets SRP he must have paid contributions, I think it might be worth checking hid NI record, I don’t know why but I have a feeling this may have relevance to the claim.

Paul_Treloar_AgeUK
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SocSec - 07 July 2016 08:59 AM

If he gets SRP he must have paid contributions, I think it might be worth checking hid NI record, I don’t know why but I have a feeling this may have relevance to the claim.

I’m struggling to see why that has any real impact to be honest.

Under “old” state pension, both men and women who reach State Pension age between 6 April 2010 and 5 April 2016 received the full Category A Basic State Pension if they had 30 or more qualifying years. If you have fewer than 30 qualifying years, you get a reduced pension as long as you have at least one qualifying year. Each qualifying year entitled you to one-thirtieth of the full amount. There is no minimum number of qualifying years and there is no longer a requirement that at least one of your qualifying years be based on paid NI contributions (rather than NI credits).

The contributor must have paid Class 1, 2 or 3 NIC’s or received NI credits which produced an earnings factor of at least 52 times that year’s lower earnings limit (e.g. £5,824 in 2015/16 - 52 times £112) in at least one tax year during his/her working life (p.1003 CPAG 2015/16).

So it’s eminently possible the client satisfied this condition during the first tax year that he worked and thus has 1/30th of the full pension. Wouldn’t affect his R2R at all as far as I can see.

Paul_Treloar_AgeUK
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I also meant to say David, you could seek some advice from the Aire Centre who are very good on right to reside issues.

I am an adviser or lawyer and am seeking advice for someone I am helping - Aire Centre