Hi all

I have received a referral for a 77 year old Portuguese gentleman, he currently lives with one of his sons, his 2 other sons and their children all reside in England. My client has lived in the UK for 3 years.

I have established that none of his sons are currently working, but they do receive Income Support.

I don't have any experience of the 2004 right to reside test, and I am not sure I have asked all the right questions, or if a claim would jeopardise his residency in the UK.

Thanks in advance

I would start with finding out a bit more about his history. It sounds as though he was in the UK before May 2004.
Who has been supporting him up to now?
Had he tried to claim benefit before May 2004?
Some of the key questions in the guidance notes for housing benefit staff are( but these apply to all meanstested benefits ofcourse):

1) Any Genuine and effective work? - as he is 77 he won't have done paid work I guess.

2) What is his right to reside?

3) Self sufficientcy - 2 steps to this one
step one - they will want to know if he has resources above the basic benefit level.
and
If he doesn't pass or satisfy that step - is he an "unreasonable burden" - they would look at the length of time dependant on pubic funds.

Hope this helps you get going on piecing together what you need to know.

Those questions certainly can get a bit personal, can’t they?

It is probably always advisable to check with an immigration specialist, but I would have thought if he is a Portugese national, claiming benefits cannot jeopardise his actual right to be in the UK, as an EU citizen?

But as you say, he may have problems qualifying for PC by showing that he has the right to reside for the habitual residence test. He could claim as a family member (dependent parent) whatever his nationality, and thereby be exempt from the HRT. However, I suppose there is a risk that this could trigger a review of his sons’ Income Support - if they are economically inactive and claimed after 1 May 2004, they may have to prove all over again that they meet the ‘worker’ definition, but they should also retain the right to reside if their children are in education. The CPAG handbook pages 1412 (family member), p 1443 (transitional protection for the sons), p1458 (top para) and p.1466 (workers) are useful.

As far as I can see, one way through for this guy is:

1. Establish if he is dependent (as he seems to be) on one of his kids here.

2. Establish whether any of those kids can count as workers. So.... have they ever worked in UK? In what circumstances did they leave work? (for example if left work due to ill health etc then may still count as a worker).

So basically if you have a client who is dependent on a child who fits the definition in EU law of being a worker then things should be fine.

Anything else is going to probably be a lot harder to argue.

I also note the previous posters warning as to jeopardising the sons' benefits if they are in the situation there.

Following on from this post,

Does anyone know where I can find the definition of 'family member' for these purposes? Does it relate to the 'household' or simply a relation? How far along the family tree until somone is no longer a 'family member'?

Thanks.

Tony

The definition of family member can be found in article 10 of EC Reg' 1621/68 and is very wide indeed.

Paul

You can find the reg at the following link.

http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=EN&numdoc=31968R1612&model=guichett

I found it. CPAG p1468

Hi Paul,

Your posts weren't there when I pushed send a second ago! I obviously didn't refresh. Thanks very much for posting up those links. I think I see international/EC law and my brain fades away very quickly - definitely not a strong point.

Cheers!

Tony

Sorry to be a pedant but Art 10 of Reg 1612/68 was repealed with effect from 30 April 2006 and you now need to look at Art 2 & 3 of Directive 38/2004, which is on the europa website. The domestic regs have the UK interpretation in Reg 7 & 8 of SI 2006 No 1003

Thanks for that. I wasn't aware of the change.
Regards
Paul