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A2 national disabled after accident refused HB on the ground that DLA awarded???
Hello everyone,
I have been trying very hard to support a client who seems to have been left out by many providers.
Client came in UK in 2009 and was working as self-employed.
In February 2011 the client /Romanian national/ had an accident on a bus which left her paralysed / left-side/.Her paralysis is due to some mental health there is no certain cause of it.
She claimed HB and DLA.
DLA was rejected but Tribunal won so it was backdated. The client claimed ESA but was refused as she failed the Habitual residency test.
HB stated that even though the client have intention to return to work she is now in receipt of DLA which means that she will not be able to return to work. They have dismissed the appeal and prefer the case to be heard at tribunal.
The client is very unwell / mentally/ she is living on the second floor and is completely isolated, we asked for Housing to provide another accomodation but they said that if she is not awarded the HB then they may not be able to help. Currently her neighbours are looking after her / well they have done so since the accident/ and I am not sure how to overcome this difficulties with the ESA and HB.
I have argued with HB that her disability is caused by accident and is temporary and looking into this regulations makes me think that she should be entitled to the support. - Imm (EEA) Regs, reg 6(2)(a); 2 reg 6(2)(b); 3 reg 6(2)(c); 4 reg 6(2)(d)
Am I right to think that there is a misunderstanding in this case. I have never come across such a case where the local authority, mental health, housing fails their Duty and keeps on making excuses that she is an A2 national and no longer self-employed.
Thank you
[ Edited: 17 May 2012 at 02:16 pm by AVB ]Althgough from an A2 country, she is not an accession state national subject to worker authorisation if she has a right to reside in the UK as a self-employed person. [2006 Accession Regs, Reg. 2(8)(b); CIS 1042/2008]. According Reg. 6(3) Imm (EEA) Regs, a person is still treated as self-employed if they are temporarily unable to pursue self-employed activity as the result of an illness or accident.
If she intends to resume self-employed activity once her condition improves and can show the incapacity from working is temporary, then she would retain her self-employed status in order to satisfy the right to reside test. Of course, acquiring DLA by itself does not mean that her incapacity is not temporary. However, they may assess her condition and the level of care required in order to determine, on the balance of probabilities, whether it is likely that the incapacity is temporary….Any other thoughts on this one?
Anyway, as we keep having to remind people forcibly, DLA is an in-work benefit. Receipt of it says nothing at all about capability for work.
Does the length of her DLA award assist in your argument of temporariness?
Althgough from an A2 country, she is not an accession state national subject to worker authorisation if she has a right to reside in the UK as a self-employed person. [2006 Accession Regs, Reg. 2(8)(b); CIS 1042/2008]. According Reg. 6(3) Imm (EEA) Regs, a person is still treated as self-employed if they are temporarily unable to pursue self-employed activity as the result of an illness or accident.
If she intends to resume self-employed activity once her condition improves and can show the incapacity from working is temporary, then she would retain her self-employed status in order to satisfy the right to reside test. Of course, acquiring DLA by itself does not mean that her incapacity is not temporary. However, they may assess her condition and the level of care required in order to determine, on the balance of probabilities, whether it is likely that the incapacity is temporary….Any other thoughts on this one?
Hi I have quoted all of the above to HB but they are refusing to even reconsider their decision but are asking for the case to go to a tribunal. The problem is that we don’t have much time as I am also trying to rehouse her.
Do you think that a letter from GP or Mental health worker explaining her condition can help?
Thank you all for your help
hi avb -
CIS/3890/2005 looks at how temporary incapacity should be assessed in right to reside case and finds that -
‘the tribunal erred in assuming that because the claimant may have had a permanent disability, she was necessarily permanently incapable of work.’
here’s a link to the decision -
http://www.osscsc.gov.uk/aspx/view.aspx?id=1977
and briefcase summary -
http://www.rightsnet.org.uk/briefcase/summary/Right-to-reside-and-temporary-incapacity-for-work/
you could, as you suggest, try to get letters from health professionals saying that cl may be able to work in future and send to local authority with this decision.
if they won’t change their mind, at least will be helpful for tribunal.
cheers ros
hi avb -
CIS/3890/2005 looks at how temporary incapacity should be assessed in right to reside case and finds that -
‘the tribunal erred in assuming that because the claimant may have had a permanent disability, she was necessarily permanently incapable of work.’
here’s a link to the decision -
http://www.osscsc.gov.uk/aspx/view.aspx?id=1977
and briefcase summary -
http://www.rightsnet.org.uk/briefcase/summary/Right-to-reside-and-temporary-incapacity-for-work/
you could, as you suggest, try to get letters from health professionals saying that cl may be able to work in future and send to local authority with this decision.
if they won’t change their mind, at least will be helpful for tribunal.
cheers ros
Thank you Ros I will definately try that
HB stated that even though the client have intention to return to work she is now in receipt of DLA which means that she will not be able to return to work.
If you got that in writing - and you have definitely not misunderstood it (could they be saying that an award of DLA means the illness is not temporary? That, although not entirely true, would make sense) then I might be inclined to write to the council - separately from your client’s case - to seek clarification. I think a series of awkward questions might help…
1. Your housing benefit officer (insert name) told us that people who are not working through illness or disability and who are awarded DLA will not be able to return to work. Please tell us:
a) what information would the council require in order to be to reach such a conclusion?
b) what procedures do the housing benefit department use to clarify whether or not any particular individual would or wouldn’t be able to work in the future?
c) how many of your in-work customers also receive DLA or AA?
b) will you be reassessing all those cases in light of this ‘new information’ about DLA and work?2. Please tell us the specific law that your officer has used to reach this conclusion.
3. We assume that your officer received guidance from the Pensions Disability and Carer’s Service (the department that administers DLA) in order to reach this conclusion. Please send us a copy of that guidance.
If you don’t get a reply pursue the complaints procedure until you get one.
When you have a reply you can then use it as evidence in your client’s case. The council might then be shamed into sorting it out. I should say that I would only do something as contentious as this where I know the response will definitely contradict the benefit decision or to support it would be to demonstrate further serious incompetence.Otherwise, I would write a concise submission well in advance of the case being sent to TTS so that it is included in the appeal response. You can then immediately make a request for an expedited hearing with the TAS1 form. If the matters addressed in the sub are not covered by the response, ask for a further submission from the council. If they won’t (or don’t) then consider asking for a direction quoting rule 2 TPR.
The aim of either of these approaches is to enable the council to identify for themselves just how wrong they’ve got it, or to compound their error with another one. If they then change their approach (i.e. clutching at straws) or change to another equally bad one, then you may have grounds to complain about an abuse of process (deliberately misapplying the law). You might already have that…
Thank you very much for this great advise I will definately write to HB Department.
Housing department IN REGARDS to accessing appropriate accommodation wrote to the client same thing stating that because her disability is permanent they can not offer assistance because she is an A2 national not exercising treaty rights.
Further to that I wrote to the MP who then e-mailed me back : Having read your email you do appear to have involved the appropriate agencies. The help available will be limited due the Ms M… immigration status, some classes of immigration have no recourse to public funds. It may be worth Ms M… contacting the Romanian Embassy for assistance.
I just don’t get it :(((
Will keep you updated
Thank you once again