Hi

Claimant has been resident in supported housing since September 2009. Turned down for HB and IS/JSA - DWP & LA are saying she needs to pass HRT to get benefits. We think she may be exempt from HRT, and could also be eligible for interim HB payments.

Circumstances are as follows:

Claimant born in Dec 1989 in the Congo. Lived with her natural mother in the Congo until she died in 2003. She then lived with her grandfather who was not in good health until her father made an application for her to join him, his wife and half siblings in the UK.

Feb 2005 - she joined her father, who is an EEA 16 National (from Austria). Her passport was stamped 12 Feb 2005 to 11 Feb 2010 thus making her a “family member of an EEA16 National”. After 6 months applied for and received an EEA Family residency card, which expires in 2010. She also received a letter from the Home Office confirming she had a right to reside in the UK. This letter also stated if she wished to stay here without her father, she would have to make an application to remain in her own right. She continued living with her father and family and attended College where she had been studying since 2006. During her summer holidays from College, she worked. She had a NINO.

Whilst living at home she suffered abuse from her father and stepmother. Abuse intensified and the relationship disintegrated further, which resulted in her being thrown out of home. She was then referred to supported housing by LA.

Application made for IS & HB. She was asked to take a HRT to claim benefits. She was told she had not passed the test, hence no entitlement to IS/HB.

Legal advice sought - made an application to have the right to remain in her own right in April 2009. Still awaiting decision from Home Office - their letter sent in April 2009 said she should not contact them and should wait until they wrote to her.

Three questions:
Should she be entitled to HB/IS without having to go through HRT?
If so, should HB/IS be backdated to when she moved into supported accommodation 10 months ago?
Do you agree the LA should have been making interim HB payments?

Any other advice/links to relevant Regs very welcome!

Thanks for your help.

Thu 06-Aug-09 08:03 PM by Kevin D

My knowledge on PFA/HRT legislation is next to zero, so my post is limited to the issue of "interim HB payments".

Based on the info given in your post, it appears the LA has already formally decided there is no entitlement - I'm assuming your client has been notified accordingly and that such notification contained a right of appeal etc.

The only provision for "interim payments" is by way of "payment on account" under HBR 93; but this is only applicable BEFORE a formal decision is made.

There is no other provision for "interim payments". In short,once a decision has been made, there can be no payment of HB until / unless a request for a revision (or an appeal) is successful.

Do you know what her father's circumstances are? Is he a worker?

Hi seand

I have been advised that father has lived in the country for 6 years and was employed/self employed. However he recently left the family home due to a DV court case, and it is believed he is now claiming benefit.

Do you think there are grounds based on this info?

Many thanks

Thanks Kevin. Very helpful as always.

You are correct - LA did make a decision back in November 08 so it appears interim payments are not an option.

Claimant is going in to see JSA dept tomorrow with copy of passport & EEA residency card.

If she is awarded JSA, would the HB award be limited to 6 months' backdating or could it go back to Sept 08 when she first claimed?

Thanks

I'm asking about her father as she should have a right to reside based on being the dependent child of a EU national (until she's 21) - it sounds like he may have residency if he had been here and working for 5+ years continously

This may still mean that she has to pass the 'old' habitual residence test and you may have difficulties if jcplus insist on details of the father's circumstances....

1. There is no requirement that a direct descendant who is under 21 be actually dependent on the worker. That ought to mean that they retain the right even upon estrangement or if they become self-sufficient or dependent on somebody else such as a partner or spouse. (Article 3(2)(c) of directive 2004/38)

2. The 5 year residency rule only applies to family members who are not EU citizens if they have been legally residing with the qualifying EU citizen for a period of 5 years. They can't arrive later and "tag on" to the worker's 5 year period (Article 16(2)).

So she isn't home under the 5 year rule as she has not been in the UK for 5 years yet, not until 2011. If you can prove that her father was a worker at the date of claim - and bear in mind that the definition includes a person in duly registered unemployment - I can't see why she can't get in as a family member.

If you can find out his national insurance number you could ask jobcentre plus to check his employemnt status since arrival. They can check his national insurance record for employment and it will show credits, class 1 and class 2 contributions. Class 2 can be problematic becasue lots of self employed people forget about them. Also, many foreign nationals start off with a temporary NINO and only get the permanent one some time later, so you may need to know both.

I'd rely on Kerr - you know, the one that says it's up to the Dept to get hold of information that they can find more easily that the claiamnt. But you will be stuffed without those NINOs. They really can't do it just on the names.

You say that the Local Authority referred her to the supported accommodation. This should have been the Homeless Unit of the LHA.

Homeless Units require applicants to pass the same HRT / Right to Reside tests.

You could ask the LHA what evidence they have and why they passed her through the HRT.

The Main issue with EEA family members Right to Reside is that this only applies so long as they are part of the family. Once they leave then they must have a Right to Reside in there own Right. They are not entitled to benefits, until the Home Office decides their status.

She should apply to the adult social services department of the LHA for support (including paying the rent) under the "destitute plus" regulations of the 1948 National Assistance Act, section 21

The presumption here being that if she is in supported accommodation she therefore is in need of support.