Habitual Residency

Edna - 20 September 2017 10:23 AM

Thanks! Will it make any difference that they have joint ownership of their house?

She is in the process of putting in her MR.

If they are homeowners then Housing Benefit isn’t going to be an option - they may be looking at mortgage interest payments which would form part of their ESA entitlement.

Simon - 20 September 2017 10:35 AM

Edna - 19 September 2017 06:17 PM

Thanks! I think the small gaps in her employment were due to her own ill health (partly as a result of caring and trying to work). Might she still have qualified as having a right to reside if it was more to do with her own ill health?The case law you quote looks really useful.

Yes - if she was temporarily unable to work due to illness or accident she can retain her worker status on this basis. She will ideally need to evidence this with a medical certificate from her GP covering the relevant period.

A Med3 isn’t required - a letter confirming that she was temporarily ill and unable to work will suffice. And given both that we are talking about historic periods of incapacity and the reluctance of many GPs to issue backdated Med3s, asking for a letter is usually the option most likely to produce the desired result.

past caring - 20 September 2017 10:24 AM

2. Which means that she only needs provide evidence of the fact that she was suffering temporary incapacity - a GP letter will cover it. And it will cover it even if it is written now about a period 4 or 5 years back.

and if the GP won’t write a letter, the relevant extract from her GP notes should, surely be sufficient (particularly as it would have been contemporaneous with the ill health)

Simon - 20 September 2017 10:40 AM

Edna - 20 September 2017 10:23 AM

Thanks! Will it make any difference that they have joint ownership of their house?

She is in the process of putting in her MR.

If they are homeowners then Housing Benefit isn’t going to be an option - they may be looking at mortgage interest payments which would form part of their ESA entitlement.

I think the issue may not have changed?

Edna - 18 September 2017 02:58 PM

Whether she is exempt from the test or not, does anybody know who might be able to help? She is not entitled to claim benefits and she and her partner have lost their housing benefit because of this (as they made a joint claim).

I agree, there shouldn’t be any problem with a right to reside (She may even have a permanent right to reside).

EDNA, when you say “ownership” do you possibly mean they are joint tenants?

Who made the claim for housing benefit though, seems it’s the lady?

And, yes, if they own the house they can’t be entitled to housing benefit under normal circumstances, unless it’s another type of scheme, shared ownership for example?

past caring - 20 September 2017 10:24 AM

In addition, it may well be possible to close the gaps when she wasn’t working due to ill health via the argument that she retained worker status during these periods of temporary incapacity.

1. Retention of worker status on this basis is a right in EU law - it has nothing to do conceptually with the tests for ‘incapacity’ or ‘capability for work’ in UK benefits law. So the client doesn’t need to have claimed ESA (or any of its precursors) during periods of temporary incapacity, much less actually satisfied the WCA.

2. Which means that she only needs provide evidence of the fact that she was suffering temporary incapacity - a GP letter will cover it. And it will cover it even if it is written now about a period 4 or 5 years back.

That’s brilliant, thanks!

chacha - 20 September 2017 01:18 PM

Simon - 20 September 2017 10:40 AM

Edna - 20 September 2017 10:23 AM

Thanks! Will it make any difference that they have joint ownership of their house?

She is in the process of putting in her MR.

If they are homeowners then Housing Benefit isn’t going to be an option - they may be looking at mortgage interest payments which would form part of their ESA entitlement.

I think the issue may not have changed?

Edna - 18 September 2017 02:58 PM

Whether she is exempt from the test or not, does anybody know who might be able to help? She is not entitled to claim benefits and she and her partner have lost their housing benefit because of this (as they made a joint claim).

I agree, there shouldn’t be any problem with a right to reside (She may even have a permanent right to reside).

EDNA, when you say “ownership” do you possibly mean they are joint tenants?

Who made the claim for housing benefit though, seems it’s the lady?

And, yes, if they own the house they can’t be entitled to housing benefit under normal circumstances, unless it’s another type of scheme, shared ownership for example?

They jointly own the house. They had a joint claim for HB (which was only paying their interest on the mortgage) as she was on income support but that has all been withdrawn now. He is on DLA.

Ah, makes things a lot clearer for me now, if she lost I/S because she was no longer a carer for her husband, is that the case? But I still can’t see why they have refused based on a failed residency test if that’s the case.

chacha - 20 September 2017 06:01 PM

Ah, makes things a lot clearer for me now, if she lost I/S because she was no longer a carer for her husband, is that the case? But I still can’t see why they have refused based on a failed residency test if that’s the case.

She lost the IS because they did a review and said that she failed the habitual residency test. She is still a carer.

You said that she’s German (so an EEA national) and he’s a UK citizen, and they are (i think you said) married.

So i don’t understand why the DWP say she is not habitually resident.  They should, really explain their reasoning so you need to appeal and see their submissions

this is from an online advice organisation

You normally acquire permanent right of residence by:

Living in the UK as a qualified person for five years; or
In some cases, people who have worked or been self-employed in the UK and have retired may also acquire a right of permanent residence.
To have a ‘derivative right to reside’:

You must be the primary carer of a child under the age of 18 who is in education, and
You must have previously been a worker while the child was in the UK, and
The child would not be able to continue their education if you had to leave the UK.
You are the primary carer of a British Citizen residing in the UK who would be unable to reside in the UK or another EEA state if you were required to leave.

So she has a right to reside (primary carer) and is habitually resident (question of fact).

unless of course the british citizen was never settled in the EU before coming back home, i think in which case she might have to show she had the relevant right before becoming a carer etc…....

here’s the DMG guide:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/626637/dmgch0703.pdf

but i expect you probably need to consider immigration provisions as well and your client may need specialist advice on that. 

I may of course be wholly wrong in this analysis, but really, until you know WHY the DWP have decided as they did, you can’t know if they’re right or wrong…..

ClairemHodgson - 21 September 2017 10:36 AM

You said that she’s German (so an EEA national) and he’s a UK citizen, and they are (i think you said) married.

So i don’t understand why the DWP say she is not habitually resident.  They should, really explain their reasoning so you need to appeal and see their submissions

this is from an online advice organisation

You normally acquire permanent right of residence by:

Living in the UK as a qualified person for five years; or
In some cases, people who have worked or been self-employed in the UK and have retired may also acquire a right of permanent residence.
To have a ‘derivative right to reside’:

You must be the primary carer of a child under the age of 18 who is in education, and
You must have previously been a worker while the child was in the UK, and
The child would not be able to continue their education if you had to leave the UK.
You are the primary carer of a British Citizen residing in the UK who would be unable to reside in the UK or another EEA state if you were required to leave.

So she has a right to reside (primary carer) and is habitually resident (question of fact).

unless of course the british citizen was never settled in the EU before coming back home, i think in which case she might have to show she had the relevant right before becoming a carer etc…....

here’s the DMG guide:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/626637/dmgch0703.pdf

but i expect you probably need to consider immigration provisions as well and your client may need specialist advice on that. 

I may of course be wholly wrong in this analysis, but really, until you know WHY the DWP have decided as they did, you can’t know if they’re right or wrong…..

Thanks. They are not married. I don’t follow what you mean when you say “unless of course the British citizen was never settled in the EU before coming back home”? He was in Germany for a while before returning 16 years ago.

They have asked for the DWP’s reasons and have been promised them in the next few days.

ClairemHodgson - 21 September 2017 10:36 AM

You said that she’s German (so an EEA national) and he’s a UK citizen, and they are (i think you said) married.

So i don’t understand why the DWP say she is not habitually resident.  They should, really explain their reasoning so you need to appeal and see their submissions

this is from an online advice organisation

You normally acquire permanent right of residence by:

Living in the UK as a qualified person for five years; or
In some cases, people who have worked or been self-employed in the UK and have retired may also acquire a right of permanent residence.
To have a ‘derivative right to reside’:

You must be the primary carer of a child under the age of 18 who is in education, and
You must have previously been a worker while the child was in the UK, and
The child would not be able to continue their education if you had to leave the UK.
You are the primary carer of a British Citizen residing in the UK who would be unable to reside in the UK or another EEA state if you were required to leave.

So she has a right to reside (primary carer) and is habitually resident (question of fact).

unless of course the british citizen was never settled in the EU before coming back home, i think in which case she might have to show she had the relevant right before becoming a carer etc…....

here’s the DMG guide:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/626637/dmgch0703.pdf

but i expect you probably need to consider immigration provisions as well and your client may need specialist advice on that. 

I may of course be wholly wrong in this analysis, but really, until you know WHY the DWP have decided as they did, you can’t know if they’re right or wrong…..

Although they are awaiting the DWP’s reasons, the DWP did suggest that it was to do with the 5 year’s continuous employment clause.

Thanks so much, everyone! She won her Mandatory Reconsideration and had the decision overturned!

Edna - 21 October 2017 12:46 PM

Thanks so much, everyone! She won her Mandatory Reconsideration and had the decision overturned!

good work well done.