Can’t get my head round this one – German National born in 1942 lived and worked in UK from 1967 to 2001, and he married a British National. From 1991 he began and continues to receive Incap and DLA, and his wife receives CA for him (having received CA for her mother before she died). In 2001, the couple went to Germany to care for his mother and returned in June 2006 after his mother died, and his wife had to start looking after her mother in the UK who recently died as well. They live in rented accommodation. He has received Incap and DLA continuously since 1991. They made a claim for Pension Credit. Although he receives Incap and DLA, and she receives CA for him, a decision was made in January 2007 that he does not have the right to reside in the UK and cannot be treated as habitually resident. That’s the head-scratcher. He can move freely between the UK and Germany, but by doing so, although he continues to receive Incap and DLA, he is not habitually resident on his return to the UK. What was he to do – not take up the ability to move between the UK and Germany to care for his mother before she died because that would have lost him the right to reside / be habitually resident in the UK on his return when his wife began caring for her mother before she died ? Does this not impact on the freedom of movement between member states ? His income hadn’t changed during the time he left and returned, and that income was limited to the benefits he was entitled to (the pension credit is estimated at £12 a week – his wife has claimed HB and CTB which is being paid). Is there any way round a law which limits people’s incomes (which are below pension credit levels because the contributory benefits they are receiving are set at a particular level) because they have accessed the rights granted to them to move freely between member states (gone to care for a mother who then died, and then moved to care for another mother who then died) ? We know that things will change in the future (both because of achieving “habit” and State Pension), but that isn’t helping at the moment. He has had a series of heart attacks as well and neither he nor his wife are well. Can anyone offer some assistance on this ? Bundle has arrived – submission to do ! Grateful thanks in advance.

I recently had a query very similar to this from the Mausdley Hospital Welfare right team.
The husband was German and wife British and they had gone back and forth caring for parents too.
The husband had became very mentally unwell - so was a patient in the hospital.

They had been refused income support. I gave some advice and suggested appealing. I have just heard that income support have revised their decision and the couple are now getting income support. This happended before it went to appeal.
So I think DWP and pension service staff are not making correct decisions.
They are as confused about this complex mix of laws as us!
I think your submiison should be based on what you have said in your email. Should do the trick and get them to change their mind (hopefully)

Which bit are they saying he has failed ? As the married spouse of a UK national he has an automatic R2R. The physical part of the HRT would apply to both of them. They should certainly have passed this if they came back in 2006.

Thanks Penny and Nick.
Client is not Hab Res as he is a “family member” i.e. husband of British National, who both “do not have sufficient funds for themselves or their family not to become a burden upon the social assistance system of the host Member State” and he has lost the right to permanent residence in the UK under Reg 15 (1) (c) of the I (EEA) Regs 2006 as he was out of the UK for more than 2 consecutive years (para 2 of Reg 15), based on Reg 6(1) of the I(EEA)Regs 2006.
Seems to me that these Regs place a condition on the premise of Freedom of Movement within the Member States, which is – yes, you can claim a subsistence benefit if you don’t leave the country, which in turn means that those EEA Nationals in the UK who stay here can claim, but those who continue to exercise the rights which allowed them to come here in the first place, can’t unless they satisfy para 2 of Reg 15, which is a severe restriction on Freedom of Movement.
Ear and Pig’s spring to mind.

1. Nick- The married spouse of a British national does not have an automatic right to reside for benefit purposes. This is why Reg 9 of the Immigration (EEA) 2006 Regs exists.

2.Rob- The quick solution here (although it would not work on an appeal against the decision you complain of) is for the wife to be the claimant. She is a UK citizen and therefore has a right to reside. The habitual residence test (both bits) only applies to the claimant. Make a claim in her name quickly.

3. As far as the appeal goes then you can argue that a claim for only £12 per week of pension credit is not an unreasonable burden on the UK social assistance system and/or that it is disproportionate to deny him a right to reside (look at the various asides of Comm. Rowland in CIS/3182/2005).

Martin.

Thanks Martin - client's wife (british national) is 52 years old and claimed (and recieved) Carer's Allowance (caring for her mother) within 4 weeks of returning to UK and then Carer's Allowance (caring for her husband)on the death of her mother. Would that all the information was forthcoming at the start of a case ...

I like the bits in CIS/3182/2005 ... off we go then.

Thanks again all round

robin

So the wife claims Income Support then....

Yup - sorry, forgot that bit. I'm getting almost as good as the clients for leaving out the most important information !

Thanks all round

Robin

We had a hearing and the summary of reasons is as follows - "The appellant is a German National who is married to a UK Citizen. He came to the UK in 1967 and lived here until 2001. He then went to live in Germany, with his wife, but they came back here in 2006 with the intention of remaining here permanently. It seems to me that, had the Apellant been a British citizen, it would have been accepted for benefit purposes that he had a right to reside, and was habitually resident, here at the date of his claim, 20 06 06, and that, accordingly, he is being covertly discriminated against on the ground of his nationality. On the authority of CIS/3182/2005 para 16, I disapply reg 21(3G) of the IS Regs. If I were in error in that, I would find that the Apellant has a right to reside here by virtue of the principles set out in paras 23 and 24 of CIS/3182/2005."
Many thanks to all who posted and helped on this one.
Robin.

ummm... some questions arise from the Court of Appeal decision from the Tribunal of Comms case about whether an individual review of the facts of that sort is still good law. Can argue that it is but worth worrying about.

Well done.