I have two clients, both Dutch Somali women, who have both been in the UK since 2001, one in receipt of Income Support, Housing Benefit, CT benefit since that time, the other in receipt of income Support Incapacity Benefit and DLA. one is a single mother of 5 children who has never worked, the other a single woman with disabliities who can't work. They live in Council property.

In July they went to Somalia for 6 weeks on holiday, and prior to leaving notified the DWP that they would be away. When they came back they were each sent 4 weeks I/S payments for the first 4 weeks of their absence. They they each received a letter saying that they are not entitled to I/S as they have no right to reside in the UK and their benefits have been stopped.

Has anyone come across this scenario before? Is it correct? Do they really become subject to right to reside rules by going on holiday and reentering the country? Can we appeal on grounds that they ahve an established right although neither are work seekers?
Any advice would be welcome, thanks.

Hi,
Ive got similar diffs with a couple of my clients. Somlians who have come to UK after residing in Holland.
The DWP in glasgow say that after 1/5/2004 when EU expanded, people can only come to UK if workers, and so cannot claim Income Support. Seems they have to claim JSA, and therefore may qualify as workers.
Lots of appeals seem to be registered at Glasgow DWP, but seems reps have focused on hab res, rather than EU legislation.
If you get a good result let us know.

When the new right to reside test came in on 1/5/04 there was tranistional protection, so your clients didn't lose their IS. However, the transitional protection is lost if there is a break in claim for any reason. Therefore when they came back from abroad they were caught by the new rules and lost their IS.

However, they must have lost entitlement to all income based benefits to lose their transitional protection. The transitional protection is in Reg 6 of the Social Security (Habitual residence) Regulations 2004 SI 1232/2004. This provides that transitional protection continues as long as there is entitlement to a "specified benefit" - IS, HB, CTB, or PC.

If they claimed HB/CTB for the period they were away, or if they can now make a backdated claim for HB/CTB that ties up to their old awards, then they should retain the transitional protection for all specified benefits. Transitional protection is only lost when entitlement to all specified benefits ceases.

If there has been continuous HB/CTB, or if you can now do a backdated claim, you should be able to reinstate IS.

many thanks for your response. the transistional protection should I think wirk as they should I believe have maintained their entitlement to Housing Benefit during their absence. Thanks for pointing it out.