what appears to be a proper decision, but is it right?

Have been asked to check this and as I’m not sure would like support checking the following decision.
Are they right?
She has been on IS and CTC - children are aged 2yrs and 6 months. Checking whether it should even be a UC claim, but ...... is this right?

We’re writing to tell you that unfortunately you’re not entitled to Universal Credit.

This is because we have decided that you are a jobseeker. For Universal Credit
purposes you have a right to reside as a qualified person as defined in Immigration
(EEA) Regulations 2016 but that right is excluded for the purposes of awarding
Universal Credit.

When making this decision, the following conditions and legislation have been
considered:
A person can gain a permanent right of residence where they have resided in the
United Kingdom in accordance with the 2016 Regulations, for a continuous qualifying
period of five years. You stated that you first came to the UK on 28/02/06, aged 9
years old. A qualified person is defined as a worker, self employed person, a
jobseeker or a self sufficient person or self sufficient student. (Self sufficient means
you must have resources in excess of the maximum allowable to a person claiming
income related benefits and have fully comprehensive sickness insurance). We have
also considered if could gain a permanent right of residence as a family member.
We have examined the evidence you have obtained from your father, and the
evidence held on departmental records but unfortunately he does not have a
continuous qualifying period of five years.

You have told us that you have not been employed or self-employed in the UK. As
such, you cannot be treated as a worker or a person who retains worker status under
Regulation (6) of the Immigration (EEA) Regulations 2016.

In accordance with the Immigration (European Economic Area) Regulations 2016, a
Family Member of an EEA National may reside and work in the United Kingdom as
long as the EEA National is exercising their treaty rights. In the Immigration (EEA)
Regulations 2016, reg 7(1)(a),(b),(c) & 7(3), a family member is defined as:
a spouse (husband or wife) or civil partner;
direct descendants of the EEA national, or of the EEA national’s spouse or civil
partner, who are under the age of 21 or dependants of the EEA national or the
EEA nationals spouse or civil partner
dependent direct ascendant relatives of the EEA national, the EEA national
spouse or civil partner
extended family member

You have declared that you do not have an EEA national family member that is
currently in paid employment, self-employment, looking for work or studying in the
UK. You are over the age of 21 and no longer living with, or dependent upon, your
father.

You do not qualify as a student and/or self sufficient.

You have registered as a jobseeker, are actively seeking work, have a genuine
chance of engagement and have not previously exhausted the 91 days allowed to a
person with this status, you can be treated as having “jobseeker” status. However,
this is a right to reside that is specifically excluded from qualifying for Universal
Credit.

This means that you are a person who must be treated as not in Great Britain.
Therefore, you do not have any entitlement to Universal Credit at this time.

The regulations we used to make our decision are Immigration (EEA) Regulations
2016, regulation 6(a). The Universal Credit Regulations 2013 regulation 9(3) (as
amended by The Universal Credit (EEA Jobseekers) Amendment Regulations 2015).

If your circumstances change, you can make a new claim to Universal credit.

Cheers

I mean it’s impossible to say whether that decision is right or wrong without more.

For your client to be entitled to Universal Credit, she needs to have a “right to reside”. I’m assuming that your client is an EEA national based on the decision letter - so whether she has a right to reside or not will depend largely on whether various provisions of EU law cover her situation. There is a chapter in the CPAG book on this (don’t have the chapter number to hand).

It would be unwise to assume that the information the DWP have used to make this decision is full and complete or that the decision notice covers all of the possible angles. It’s really something which needs to be investigated with an open mind.

Most EU rights to reside come - one way or another - from work or self-employment of an EEA national, although sometimes study, jobseeking or “self-sufficiency” can be relied on.  So the starting point is to find out what your client has been doing in the UK for the past 12 years (I’m assuming that the answer is mostly “studying” but who knows - perhaps she had a Saturday job or did some part time translating through college?).If she was studying, was she covered by sickness insurance (as this is a requirement for students and the self-sufficient)?

The decision notice refers to your client’s father so we need to know some more about him. When did he come to the UK and what was he doing whilst he was here? We assume that he came in 2006 with his daughter - but perhaps he was here working here for 10 years before being joined by his daughter. The DWP says that it has considered the evidence provided in reference to his residence and “departmental records” but that is something I would absolutely take with a pinch of salt. The decision notice seems to suggest that he has either stopped working or left the UK - do we know what happened and why?

I’d also be wondering if your client has or has had other family in the UK - e.g. her mother.

I would say that, at least in general terms,. a significant number of these right to reside decisions turn out to be wrong so it is always worth doing some digging.

I would venture that it’s at least a coherent (internally consistent) decision, if that’s the question. But yes, there’s a lot of facts behind it which might not all stack up.

Is it clear how did the legacy benefits terminate, can those decisions be challenged?

PS, it may be worth keeping an eye on this curious thread, where claimants in a similar situation have been invited to claim ib-JSA, despite residing in a full UC area:
https://www.rightsnet.org.uk/forums/viewthread/12878/

Also worth bearing in mind that CTC only terminates if the claimant satisfies the basic conditions of entitlement to UC, which include the right to reside test.  The claimant does not satisfy those conditions, therefore the threshold requirements for terminating CTC are not met: see Reg 8(1)(b) of the UC (Transitional Provisions) Regs 2014.

This will not help her get the IS back, or any alternative legacy DWP benefit (JSA would be abolished if she claimed it; jobseekers cannot get any other DWP benefit).  But it is better than nothing at all.