ESA- right to reside on basis of dependency on a family member

Hi,

I am just wondering if anybody has any experience of running this argument. Is it difficult to get the DWP to accept dependency and what sort of evidence do they require?

Couple ( A8 nationals) I am assisting, have been supported financially in all respects except rent since by their adult children who have the r2r. Children also provide assistance to mother who has health difficulties.

Many thanks

Louis

have a look at decision CIS/2100/2007 and associated information on this site

here’s a link to briefcase summary for CIS/2100/2007 -

http://www.rightsnet.org.uk/briefcase/summary/Right-to-reside-whether-claimant-dependent-on-son-/

and the decision itself -

http://www.osscsc.gov.uk/aspx/view.aspx?id=2426

Before it went upstairs (and on it’s return) I was the rep in CIS/2100/2007. The Tribunal eventually took a common sense approach to a frail, elderly old lady living in her daughter’s household with no money coming in. Thankfully it was finally heard by a very sensible Judge.

If the family are making regular payments you might want to try establishing it via bank statements.

If they’re paying utility bills that could provide evidence too.

Evidencing the material support required is a swine and in my experience it’s come down to a Tribunal taking someone’s word for it to one degree or another.

If there are factors other than simple hardship you might want to try and have the appeal expedited.

Edit… if there’s been a Carer’s Assessment by Social Services that would be a good way in… It would open up arguments under art 3(2)(a) 2004/38/EU as well.

Thanks for that last post, my tribunal listed for 3 pm today was postponed as DWP had not had time to read new info I had sent to tribunal.  It is a nightmare as the claimaint for PC does have income from Poland and Attendance Allowance.[though below the level of pension credit]

the daughter is now a UK citizen so we can’t rely on her as the qualified person, in any event she has said to the pension service a number of times that she does not provide any support for her mother !!! we have a letter from the claimants son saying he provided help with food, trips to hospital, buying furniture for the claimants flat, I just hope this is enough to count to show the claimant is dependant on the son.

the daughter who has lived in UK many years has unfortunately put in writing to the tribunal that A, she did not provide support for her mother and B [when it became evident that support was needed to establish dependance, the daughter wrote to revise her earlier evidence to say]  in fact she does supply suppport. I am hoping we can rely on the son and keep the daughter as far out of the frame as possible.

Any ideas ???

SocSec - 17 September 2013 01:07 PM

Any ideas ???

Get son to the next hearing and let the Judge quiz him. If he comes across as legit it’s in the bag.

There might be mileage in “self sufficiency” arguments if the income from Poland is high enough.

It could arguably be indirectly discriminatory to apply UTJ Rowland’s dicta in CH/3314/2007(yr ?) and 3315/2007 plainly to a PC claimant.

The manner in which you would prevent that discrimination is using the applicable amount for a person under State Retirement Age to judge whether they’ve got sufficient resources.

How’s the rent been beig paid?

Also regarding dependancy; is there anyone in Poland your client could reasonably go back to?

I went to a do at the AIRE centre a few weeks ago where they made a big deal of a recent decision giving some weight to emotional dependancy; there might be scope to argue that. Edit; I can’t find the briefing note though… sorry.

Thanks, I had to twist son’s ar m to get him to write a letter, he is terrified he will have to repay all the money his mother has reecived so far if he is involved. the mother gets HB as the daughter wrote to LA and told them the mother was self sufficient so the LA paid up on HB claim, PC are not so easily persuaded

I was minded to argue that if the claimant is not self suffficient she must be dependant so it would be a win win situation. !!!

I think making claims for HB and PC will show that she is not suficiently self sufficent to qualify under that head

there is a lot of emotional dependancy but the daughter has laid that on pretty thickly already , I fear the case law on ‘material’ dependancy will rule the day but if you come across any new cases please put them up on site.

I am going to have a quiet chat with PC appeals and EU decision makers about the case and hope they accept the son’s evidence and pay up without another hearing

Thanks again

Thanks for all the above postings.

I will leave it to the cl to decide whether to run the dependency argument or apply JSA with restrictions on availability to work based on ill health.