IS/JSA for Dutch National

Client is a Dutch National, recently left husband due to DV, turned down for IS as doesn’t have right to reside, has never worked herself, 7 children, recieving CB and CTC only. Decision makers summery states that husband is not a worker/work seeker and client beleves that her husband recieves ICB.

We don’t know much about husbands immigration status/length of time worked previously/whether now treated as having permanant residency etc, the only indicator that we had that there may have been some kind of entitlement to freely claim benefits, (that our client may then be able to use to retain her right to reside as separated but not divorced from her husband???) is that although husband was not working and was receiving ICB the client states that they were receiving IS,HB and CTB when they were together.

My quesiton is, if we appeal the IS decision, if the client claims JSA in the meantime to satisfy the R2R for HB/CTB and have an income for however long the IS decision takes, if she wins the IS appeal can she return to IS or will this be prevented from the rules that state no IS entitlement if entitled to JSA?

Any guidance would be much appreciated, I haven’t had a R2R case for ages and am lacking confidence a bit with this one.

No problem claiming JSA whilst pursuing an appeal - many clients have no choice. If decision is revised or won on appeal, IS claim is opened from date of claim - client just closes JSA claim and will be paid arrears less JSA already paid.

Is husband an EU national - if so, is he a former worker now unable to work due to temporary or permanent health condition?

Also, did any of the children go into school (at least primary level )whilst husband working?

Yes to the education and Incapacity for work and we are looking at getting both into the appeal.

We haven’t been able to establish from the client whether the husbands absence from work appears to be temporary or permanant and she cannot contact him due to the DV. I spent a while looking into the retaining worker status if child is in education before I posted this and my interpretation of Baumbast was that the retained right to reside for the primary carer of a child in education would not apply to someone that had never worked (which my client hasn’t). But did Ibrahim and Teixeira change this requirement meaning that my client would have R2R through this route despite never working?

And thank for the reassurance re: the JSA.

The Baumbast argument does not depend on the primary carer and worker being the same if part of a couple when the child goes into education. So its ok for the primary carer never to have worked, provided the partner was - the argument is the child has a right to education through Art 12 of 1612/68 whilst one of the parents is a worker - the carer then in the future has a derived R2R through Art 12 to ensure the continuation of the child’s Art 12 right. In Ibrahim, Mrs Ibrahim had never worked in the UK and had never been self-sufficient but that did not defeat her case.

In can be a big problem getting evidence of the husband’s work record where the relationship has broken down and/ or there is DV - if you can supply a NINO get the DWP to access the NI record though this is not foolproof. If no NINO give them as much evidence as you can as to the husband’s ID to trace his NI. If he is on IB this obviously suggests he has worked and paid NI inthe past

Hi,
The following info was helpfully provided by Martin @ CPAG for a similar issue I had.

“It is clear from Diatta Case C-267/83 that she remains a family member even when separated.

Her establishing that he was in work and registered etc. will presumably not be possible (given the domestic violence). Therefore, this is a classic case where the DWP should do the chasing up of his NI record and also of his worker registration details - Kerr v DSDNI [2004] UKHL 23 per Baroness Hale at paras 60-65.”

Chaos

Thanks everyone, all makes sense now - appeal sent.

Possible extra arguement for you.

I’m assuming the husband is also Dutch.  If so, and if i’m right, she was/is his spouse would benefit from Article 16 2004/38/EC (Regulation 15 i(EEA)Regs) on the grounds that she has been lawfully resident for more than five years in accordance with teh directive (i.e a family member of an EEA national)