ESA & family member of EEA national

The only way I can see that a client of mine will qualify for any benefits (other than the DLA award he already has) is by showing he is a family member of an EEA worker.

Client is aged 57 and has been in the UK since 2005 but has never worked due to sight problems (registered blind). He has been living with his son. They are both Czech nationals. The son is currently working in the UK, but father has no idea if the work is registered with HO. Son houses and feeds father, but son is now thinking of moving out to a neighbouring property with his wife and children. Clearly, father cannot afford to live on just his DLA. His wife does not work.

I am pondering on my client being able to claim income-based ESA (& thus HB/CTB). However, he is permanently incapable of work and was never a worker in the UK ... It seems he wont be entitled to anything?

Help!!

TD

Is there anyway that you can find out if the work has been registered under the WRS? You also say that they have been in the UK since 2005. Do you know if this has been continuous? If it has been continuous five years residence and the son has completed the WRS then under Article 16(1) of the Directive 2004/38/EC the client will have a right of permanent residence in the UK. This is because Article 2(d) of the Directive states that the direct dependants in the ascending lines will have to right to accompany a worker. If it’s not continuous for five years then you would need to show ongoing dependency whereas if you can claim permanent residency it no longer needs to be.

If the son hasn’t completed the WRS and currently isn’t in work that is registered would there be anyway of you finding out about the daughter in laws status? Because Article 2(d) also gives the right of dependant in laws to accompany the worker. If the daughter in law has completed the WRS or is currently in registered work and the son has not then you could argue that father has a right to reside as a dependant of the daughter in law. Again if this has been continuously for five years then you could argue he has permanent residency. If it’s not continuous for five years then you would need to show ongoing dependency.

The Pedro Case is really helpful here. The Court of Appeal held that whether or not a person was a dependant parent depended on the facts. The court would have to assess how much material support the worker gives to the family member. The court relied upon the case from the C-316/85 Lebon case from the ECJ. In the Lebon case the ECJ stated that it didn’t matter that the dependant applied to the Belgium Government for the ‘minimex’ (the Belgian benefit that guarantees a minimum allowance probably equivalent to Income Support). Also the Pedro case involved a claim for Pension Credit. This has more or less the same habitual residence and right to reside criteria as ESA/HB. So if the father is still going to be dependant on the son in other ways it shouldn’t matter that he has claimed benefits.

You mention that the son has children? If neither the son or daughter in law have completed the WRS or registered at the moment then possibly you could maybe argue that the father has a right to reside as a dependent of someone who has the right to reside as the primary care giver of a child in education as in the Teixeria case?

Of course if the son has not completed WRS and isn’t registered the most practical way might be to try and persuade the son to register the work.

Hope the helps a bit

Stuart

Many thanks Stuart for so neatly unravelling the knots in this one!

It helps greatly to be able to run these sorts of cases past another person, but as I am a 1 person department .. Thanks for rightsnet!! 

Tracey