urgent help needed on a right to reside case.

case is as follows.

failed right to reside test for income support, hb and ctb.

client came to uk in 1989 and had worked at various restaurants from 1989 to 2003.
claimed income support on grounds of incapacity from 2003 to 2008 before the right to reside test applied.

then returned to work from october 2008 to march 2009.

he made a claim to jobseeks allowance in march 2009 and then applied to claim both incapacity benefit and i.s.

awarded incapacity benefit as he has earned enough money to satisfy the ni contributions conditions. - rt reside test does not apply to incapacity benefit.

refused i.s as deemed not to have right to reside as he is treated as a person from abroad.

appeal is listed for 22.12.09.

i would appreciate anyone out there who has a good knowledge of right to reside case. my submission so far is on the lines of that he should NOT cease to be a treated as a worker due to being involuntarily unemployed for less than 6 months due to illness.

this is not my specialist area - so any comments will be welcome.

Im assuming he would qualify for a top up off Income Support

If the Incapacity is temporary then I see no reason why Art 7(3)(a) dorective 2004/38/EC should not apply to allow him to retain worker status (Para 6 of the 2006 Regulations).

You may also wish to argue permanent residence as under Art 16 as he appears to have been here greater than 5 years. You may wish to look at the recent Lassel case

http://www.bailii.org/ew/cases/EWCA/Civ/2009/157.html

Enjoy

Matthew

Just to be clear, workers who go sick are covered by domestic Reg 6(2)(a). The requirement is that the sickness must be temporary. This is not specifically defined in case law, although the best position to adopt is that as long as its not permanent, it should be temporary.

On a related point (although not central to this case I think), note that CIS/4304/2007 (decided 13.5.2008) says the test of incapacity under this heading is whether or not the person is capable of the work they were doing, or the work they sought, and is NOT the test that is used to decide Incapacity Benefit (and therefore presumably Employment and Support Allowance).

The 6 months business applies to to those made unemployed who have signed on for JSA. This is the territory of Reg 6(2)(b). No need to bark up this irrelevant tree, because client is not registering as unemployed.

Steve

Steve

thanks for your reply.
i'll let you know how i get on with it.
i'll have a look at cis/4304/2007.

cheers

Philip

Matthew

thanks so much for your reply.

firstly the rate of incapacity benefit awarded is more than his applicable amount as he has been awarded short term higher lower rate which will increase to st higher wef 7.12.

so on the face of it the apppeal seems pointless, however he has been receiving hb/ctb so this is one of the main reasons for continuing.

I'll let you know how i get on.

many many thanks

Philip

update on this case following tribunal hearing.

the case was decided in the appellants favour so he was deemed not to be a person from abroad and having the right to reside in the uk.

thanks to those replies which made this case easier to understand - even if the tribunal judge could not understand how a person in these circumstances - here in the uk for 20 years! could fail this test.

thanks to all

Philip