RTR issues / entitlement to HB with no rent liability

Hi Rightsnet

Situation is as follows. Client is Portuguese national. Worked in the UK 91-98 but then returned to Portugal. She came back to the UK in 2006 with her (unmarried) partner and their son. Partner worked whilst she looked after son. Client and partner separate in July 2015. By this point client’s physical and mental health had declined and she claimed ESA. She passed the WCA the first time round but the second time round she failed it and this decision was confirmed by a Tribunal earlier this year. At this point she made a claim for JSA.

Client’s JSA claim has now been stopped as she has failed the GPOW test. Housing Benefit in turn has been stopped (I am not sure why it was still being paid in the first place as client’s RTR was as a Jobseeker as far as the DWP was concerned).

Current situation is client is just getting CB and CTCs. Her son is now 18 but remains in full time education. He also works part time - about 20 hrs per week.

2 questions as per the title (plus a bonus 3rd that I’ve just thought of!)

Firstly re. the RTR issue. At the moment I’ve put in a reconsideration request of the JSA decision on the grounds firstly that the client is the carer for a child who entered education whilst a parent was in work and whilst over 18 continues to rely on her in order to complete his education. I’ve also offered an alternative argument that client’s son is a worker and that client is a dependent family member. Does this sound about right? For me it can only be one or the other? Between the client’s health problems, poor English and long period out of the workplace the GPOW decision itself is probably about right - I’m more concerned about whether it should have been applied in the first place.

Second - As above I think that client has an arguable case that she has a right to reside. However I don’t think that this is a completely clear cut case. I was wondering whether it was worth the son making a claim for housing benefit. He is not on the tenancy but I was hoping that this would be a case where our Revenues and Benefits team could decide that it is reasonable to treat him as if he was liable for the rent so that he can remain in his home. Any thoughts? The big issue would be that the son’s earnings will be taken into account and will reduce the award and from the financial difficulties that client is in it seems that the son sees his income as being his and not the households and so it may well be that he is reluctant to be expected to pay some of these earnings to the rent.

Bonus 3rd question - as above client is still getting CB and CTC for her son who is in FT education and is also doing 20hrs work a week. I’ve had a look through the books and can’t see anything about a parent’s CB/CTC entitlement being affected by a qualifying young person’s work but it seems a little counter-intuitive to be arguing that he is both in full time education and in genuine and effective work. Is it fine just to treat him as being a hard worker?!?

Tanks all in advance :)

I am assuming that both the son and the father who worked are also Portuguese, is that right?

Plan A (derivative right to reside as son still in education) is not doomed to fail: the Teixeira case says that, while the national age of majority might be an obvious diary date for a review, the question is whether on the facts the student still needs the support of the parent.  The fact that he has his own income perhaps weighs against your client; the fact that he appears to be still in Child Benefit-level education (a sixth former essentially) weighs in her favour.

I tend to agree with you that the failure of Plan A would lend weight to the success of Plan B - if he is independent enough not to require her support, maybe she needs his?  Depends how much he earns and whether it could be said that he is realistically providing her with financial/material support.  The CB and Tax Credit sits awkwardly with that proposition, as does his apparent reluctance to see himself as the main household provider.

As for the possibility of him claiming HB, Reg 8(1)(c)(ii) (treated as liable) does not expressly exclude situations where the person who is legally liable but not paying the rent is also living in the home.  No harm in giving it a shot.  Assuming he is Portuguese I shouldn’t think he would have any difficulty establishing that he has R2R as a worker.  Whether he also studies or not is immaterial to the employment relationship - it is factors within that relationship that primarily determine whether work is effective and genuine.  Worker who studies, student who works, it’s all the same.  EEA nationals do not have to slot exclusively into one economic category - it’s not a case of “if you are student, that is your status and you cannot be a worker as well”.  You can be both.

A the paid work of child under 16 does not affect entitlement to CHB (CPAG welbens pg 581)

But if the child is 16 or over and only counts as a qualifying young person under the terminal date rule (finishing education pg 575) or extension period (end of term pg 575) then child benefit is not payable for him or if they are in remunerative work (pg 581)

so, on my reading no entitlement to CHB.

if he doesn’t want to contribute to household income someone ought to explain the consequences to him. For HB his income would count as a non-dep (pg 69) unless he is the claimant.

Thanks all for feedback, very helpful as always 😊 . Son is Portuguese also yes. Sally I will have to check if son is now in an extension period as it is the college holidays and I’m not sure if he has one more year left :/ . I think he had quite a lot of time off for surgery on a knee injury so it is not impossible that he still has stuff to finish off. Will check with mum. Obviously if he’s now finished education that is one of her arguments out of the window.

Will update when I hear back from DWP about the MR