refused no right to reside

Client is non EU but married to EEA national with two children. He and his wife are not getting on and living apart (he consulted us about his rights after divorce). His health isn’t good (he receives PIP) and he wants to claim disability benefits. He claimed UC—no right to reside.

He’s got a Family Member residence card but his wife won’t give him details of her NI payments so he can’t prove she is working and thereby that he has a right to work and also to claim disability benefits if he can’t work.

At MR we told him to quote Kerr, give the DWP full details of his wife’s employer, her name and address and ask them to look up her NI records in the Database to evidence his right to reside.

DWP has now said:

“You have asked that we use the Database of National Insurance contributions to establish that your wife is working.

“I acknowledge that you have been issued with a Family Member residence document from the Home Office and that you have to derive a right to reside from your wife and have told us she does not want to give you the evidence needed.

“However where there has been a breakdown in the relationship and you wish to demonstrate permanent residence the onus is on your to provide documentary evidence of your EEA national sponsor”.

Relying on CPAG we have advised him to appeal and ask the FTT to direct the DWP to provide the evidence needed to decide the case justly. Are we getting this right? How do I ask the FTT to give a direction?

Yes I think you are approaching this the right way.  What the claimant should do though, consistent with Kerr, is provide as much uncorroborated info as he can - he must have a vague idea about when/where she works or worked, how much she earns/earned.  he cannot push the onus entirely onto the DWP, just as they cannot do the same to him.

An application for directions could accompany the appeal - put a note on the appeal form to say “see application for directions enclosed”.  I normally start with a blank sheet of paper - no letterhead, no addressee like this:

First-tier Tribunal - Social Entitlement Chamber
Appellant: name
NINO: xx123456x
Respondent: Secretary of State for W&P
Benefit: Universal Credit

Application for directions

1. This appeal turns on my right to reside in the UK.  I am a non-EEA national separated but not divorced from my EEA national spouse, name/NINO.  I rely on her status as a worker: as we remain married I submit that I continue to have the right to reside as a family member and/or that I have already enjoyed such a right for five years and now have a permanent right to reside
2. My estranged spouse is unwilling to provide me with evidence of her worker status.  I have therefore asked the respondent to confirm from its own records that her contribution history is consistent with my account of the facts.  The respondent has declined to do so and insists that it is my responsibility to obtain documentary evidence.
3. I therefore ask the Tribunal to make the following directions:

- the Secretary of State is directed to obtain details of my spouse’s contributions since [date]
- the Secretary of State is directed to submit those details to the Tribunal, together with any commentary necessary to enable the Tribunal to interpret the information
- if within 28 days of the date of the direction the Secretary of State has neither complied with it nor provided an adequate explanation why she is unable to comply, the appeal is to be summarily determined in my favour.

Name
(Appellant)
Date

This use of directions is a really useful suggestion. We might also make use of it in other situations - for instance when DWP do not provide previous medical reports etc.  Ruth

this too do you think?;. https://www.rightsnet.org.uk/welfare-rights/caselaw/item/rule-24-requirement-for-decision-makers-to-provide-the-first-tier-tribunal

Judge Mitchell overturning FTT:

Rule 24 of the First-tier Tribunal’s rules required HMRC to supply all ‘relevant’ documents. The evaluation of a document’s relevance must be carried out in a manner that respects the constitutional role of the First-tier Tribunal. On an appeal, the tribunal is the (judicial) body charged with determining whether a piece of evidence proves any fact on a balance of probabilities. A document should be considered relevant, and hence disclosed, if the Tribunal could (not would) rely on it to make any relevant finding of fact. Applying that test, on the description of the evidence given by HMRC in these proceedings they were required to supply the documentation to the First-tier Tribunal’ (paragraph 18)