Hi,
I need your help on this one.

Client is a 19 years old Danish National who arrived in the UK in his mother in Feb 2005. Then he was only 15.
His mother worked between their arrival til November 2006, while he attended a local school and she has since been in receipt of Income Support
The client who suffers from severe Learning difficulty has refused to continue his education and has been awarded the lower of both DLA care and mobility

My question now is whether my client who had a right to reside conferred by his mother is entitled to Income Support

Any onformation would be highly appreciated!

Francis Ngale

What is the nationality of the mother? I assume the mother is Danish, and a lone parent. When mother arrived and started working, she would have been a 'qualified person' , and would have had the RTR, thus freeing access to in-work benefits like tax credits, or possibly even IS or IBJSA by working part time (following CIS/1039/2007).

When mother stopped work, I can't tell from your post how she qualified for IS. Most likely possibilities are that she was (i) somehow still counted as a worker/worker no longer working etc, or (ii) got IS via a Baumbast type route, or (iii) she was paid IS by mistake, as is very common.

It looks like mother is still on IS now. Even if she was Baumbast assisted and benefited from the TP that applies to some lone parents with older children (following the Nov 2008 changes), it looks like the entitlement to IS would in any case end because the son has left education.

I think we need to sort out mothers correct status now, before speculating on rights of your client. If she has RTR, then son could be a family member via the under 21 or dependency route. Could be problems if mother has no RTR though, because being on DLA does not in itself count for much in the world of RTR.

Have a good weekend!

Steve

I am assuming you wish to apply for the client based on grounds of incapacity. If so the claim would not be for IS it would be for ESA.

Yes I would agree and unearth whether the mother is in fact habitually resident. She may have retained the R2R is she stopped work due to illness.

If she has the R2R then prima facie the child should have the R2R as a family member (descending) of a person with a R2R.

DLA does not have to satisfy the HRT so it makes no difference whether the child was awarded that.

I think you should look into ESA in the youth for the child. ESA(Y) is a set of rules which allow certain young people to qualify for ESA(C). ESA(Y) has the residence and presence conditions test not the HRT.

Regards

ESA may be the way to go for the young person, but the current status of mother must be resolved (especially if the young persons right to be here will depend on being a family member). Unlikely that mum has status as a sick person. The temp sick status under reg 6(2) domestic regs requires mum was involuntarily unemployed, signed on and is only ill temporarily - she has not worked since 2006!. the other route to RTR due to sickness is 'ceased activity' (reg 15), but that would need an accident at work etc - we have no info on that.

If mum does not have the RTR, then young person has no effective rights as a family member, so on what basis is young person allowed to be in UK, if they are neither pursuing Treat rights, nor self- sufficient etc? Maybe that question is a distraction... but don't assume that Article 18 will always save the day. Have a look at CIS/3891/2007 for a compelling case that was not rescued by Article 18, and for balance CIS/408/2007 a possibly unlikely candidate for Article 18 rescue, that was successful! all seems a bit random to me, but then I can barely spell 'proportionality'!

Steve

Indeed it may be a difficult dilemma to substantiate whether or not the mother is habitually resident – has the right to reside. Although even if they do not it is highly unlikely that they would be deported. I can not speculate how the mother has the right to reside, however, if the child (as 19 and not in full time education) is able to claim ESA(Y) he will not have to satisfy the HRT as for ESA(Y) the test is the residence and presence conditions test.

It is difficult when you have clients in such circumstances, i.e. claiming CA and unable to claim IS to top up as no right to reside. I often see cases where it appears that clients are given benefits when they should not have been as they have no right to reside (least I cannot see one) this is explained to clients yet they have difficulty understanding this, as do many advisers. On another note with the government recently extending the WRS for A8 nationals by another 2 years the dreaded 12 months registration requirement for R2R as a jobseeker is going to continue to haunt us all.

Regards

Assuming mum had protected rights as a worker, do son's rights derive from article 39 and, if so, do the same exclusions apply to ESA as to IS, i.e. if it's a r2r derived from art 39 you can't use it for IS purposes.

She wouldn't have R2R as a worker if she gave up work to care for her son. She'd have withdrawn form the labour market.

Dan raises the possibility of worker rights persisting under the 'worker no longer working' tag, and we need to know more about the circumstances of mum's stoppage from work. Must say it does not look likely. I am guessing that Ariadne's reference to someone who has 'withdrawn from the labour market' is taken from CIS/1951/2008. In that case Judge Jacobs speculates as follows:

"...However, there is still a question of the speed with which the claim must be made. A gap between becoming involuntarily unemployed and claiming jobseeker's allowance is not necessarily fatal. Whether it is significant or not will depend on the length of the gap and the reasons for it. Put into the legal terms of EC analysis, the question is whether the gap shows that the claimant has withdrawn from the labour market. A claimant may take a few days to think about the future or to rest after a stressful period leading to redundancy. That may be consistent with remaining in the labour market. In contrast, a claimant who decides to spend six months backpacking in the Australian outback before looking for work has clearly left the labour market for the time being. The tribunal must investigate this issue at the rehearing."

The facts were clearly different in this case, but the absence from the labour market is relevant. Judge Jacobs says 6 months would be cool, but we are talking here about a much longer period.

I was thinking again about CIS/408/2006, which has some possible, general similarities (having to stop being available for work, for caring duties). That case won via Article 18(1). Might be worth seeing if you can get more mileage out of it.

Steve

Many thanks for all your replies!
I have been off on annual leave for the last couple of weeks.

With regard to mum's stituation, she is also Danish and her two sons were at school when she lost her employment. She says that she did not quit her job but rather, her employment was terminated.

You need to look into ESA(Y) for the child whilst he is still 19.

Regards

Hi Francis,

So mum was a worker for about 18 months, and was then made involuntary unemployed. Why did she then claim IS? Had she claimed JSA, she would have fully satisfied the three compulsory sub tests in Reg 6(2)(b), and could have used Reg(6)(2)(b)(i) to persist now as a worker, with the worry of the 'genuine chance' requirement to find work.

CIS/3505/2007 comes out saying that someone on IS is not registered for work, despite attending WFIs etc. From memory, it also confirms that whereas the definition of worker must be community law based, the test of registration for work must be domestically based, which would appear to cut down chances of appealing direct to the Residence Directive for assistance, but maybe I am wrong on that.

There was a debate earlier about the status of those wrongly advised to claim IS, not sure what it concluded. Certainly now is a gap now between mum becoming unemployed and any JSA claim, which brings us round to the business of being withdrawn from labour market. Can't see a way around that, unless you can argue mum was wrongly advised to withdraw, and try rescuing her worker status now via Reg 6(2)(b). She would in any sense be a jobseeker if she did that, which would give some kind of legitimacy to her current status here as a qualified person, and family member spin off status to the son.

Steve

I meant to say 'without' the worry of the 'genuine chance' requirement (para 1 of my last post).