Hi fellow welfs,

I have a polish couple, Mr has resided in the uk since the second world war, and Mrs has moved between poland and the UK for the last 10 years and they have married during this period. Her last absense commenced a year ago for approximately 6 months, but they are very vague about the dates she has been in Poland/UK other than what is in her passport prior to 2004. They have seperated on occasions during their marriage.

Mr has been in receipt of PC as a single person, and requested a supersession on the grounds that his wife has returned from Poland to reside with him. Pension Credit have made the decision, (not yet in writing, but they have told me over the phone....) that he is entitled to the single person rate of Pension Credit only.

I don't normally deal with A8's, but my reading of the Imm (EEA) reg 15(1)(a) give him permanent right to reside and his wife receives permanent right of residence under reg 15(1)(d). He should therefore have a couple's standard minimum guarantee.

I am really not sure about this and I would be grateful for any comments on my reading of the regs

thanks in advance

Mr's immigration status goes right back to very old law indeed. He may even have had refugee status. There used to be quite a lot of elderly Poles working in my area for the MoD and in the run up to the coming into force of the 1981 British Natioanlity Act we did a lot of naturalisations for them at my CAB, which implied that they already had some sort of settled status at that date. He has been here so long that it is highly unlikely that European law has any relevance to his rights of residence in this country, which would probably have been acquired 50 years ago! Rights long ago acquired under domestic law cannot be taken away by European law.

Thanks for that, but am I correct about his wife's RTR status (before we start looking at the HRT)?

The Right to Reside test for all of the benefits it applies to applies only to the CLAIMANT. It does not apply to their partner. The wife's right to reside (or otherwise) is therefore irrelevant.

This works as follows for State Pension Credit:

sec 1(2)(a) of the State Pension Credit Act 2002 makes it a condition of entitlement that the claimant is in Great Britain.

Reg 2(1) and (2) of the SPC Regs 2002 provides that a person who does not have a right to reside in the UK (and does not come within some of the other exemptions all of which would mean they have a right to reside in any event.....) is treated as not in the UK for sec 1(2)(a) purposes.

The amount of benefit which a claimant is entitled to is set in an entirely different way. Basically it is set by sec 2 of the Act and regulations made under the powers in that section. the key regulation isReg 6(1)(a) which sets the couple rate as standard for a claimant who has a partner. There is NO provision providing that the amount shall be any less if the partner has no right to reside.

So the long and short of it is DON'T WORRY ABOUT HER RIGHT TO RESIDE.

Ask the DWP to explain under which provision they think the claimant should get the single person rate.

Martin.