Had R2R for legacy - naturally migrated - refused R2R under UC

This appears to be routine to refuse EEA who claim UC on grounds of R2R examples couple with both working, temporarily stopped work few weeks ago, children in education who started this when they were working etc etc. Result families with very young children with no means of support and action to evict them. AST the moment this EEA discrimination is flying under the radar

Not forgetting https://www.rightsnet.org.uk/forums/viewthread/13946/

Thanks Peter - duly noted. ikbikb do send me any case studies that you feel might be helpful for work and pensions committee report…

The Minister for Employment, Alok Sharma’s response:

All very interesting and perfectly correct as far as it goes … but at the end of the letter you are left thinking: “go on then - why didn’t the second DM think the claimant had a permanent right to reside?  You have done a nice job of explaining why the second DM has to make his/her own decision but we are none the wiser about how they reached it”

HB Anorak - 28 January 2019 02:02 PM

All very interesting and perfectly correct as far as it goes … but at the end of the letter you are left thinking: “go on then - why didn’t the second DM think the claimant had a permanent right to reside?  You have done a nice job of explaining why the second DM has to make his/her own decision but we are none the wiser about how they reached it”

To which the answer in reality probably goes something like: the claimant did not retain / submit all of the evidence used for the legacy determination, the UC DM cannot access the old legacy records of the previous determination(s) and the quality of R2R decision making under UC is even worse that it was under legacy.

Very interesting case Peter.

Does anyone know what would happen if someone in that situation had claimed ESA but was knocked back on 2nd ESA claim when the initial claim had her RTR and being previously transitionally protected from incapacity benefit?

I had an Italian national who tried to reclaim ESA but was denied on RTR but now have an appeal going through tribunal on original ESA decision. Does anyone think this has legs?

I might have got the wrong end of the stick here, apologies if so but are you are referring to the Transitional Protection rules that allowed people on Income Support to migrate on to IR ESA without a R2R?

If so, this would have meant that your client would not have needed a R2R for the first ESA claim - SI 1907/2010, SI 2430/2010, SI 2425/2011

My experience of this is not uptodate but certainly previously a second ESA claim could be linked to the first period of LCW (maintaining the exemption from the R2R requirement) if it came within the 12 weeks linking rules. If not, I think that the TP exempting them from the R2R was broken. Therefore a claimant would need to meet the ordinary R2R rules for the second IR ESA claim unless made within 12 weeks of the first one ending.

This exemption from the R2R requirement does not apply to UC.

BC Welfare Rights - 28 January 2019 04:28 PM

I might have got the wrong end of the stick here, apologies if so but are you are referring to the Transitional Protection rules that allowed people on Income Support to migrate on to IR ESA without a R2R?

If so, this would have meant that your client would not have needed a R2R for the first ESA claim - SI 1907/2010, SI 2430/2010, SI 2425/2011

My experience of this is not uptodate but certainly previously a second ESA claim could be linked to the first period of LCW (maintaining the exemption from the R2R requirement) if it came within the 12 weeks linking rules. If not, I think that the TP exempting them from the R2R was broken. Therefore a claimant would need to meet the ordinary R2R rules for the second IR ESA claim unless made within 12 weeks of the first one ending.

This exemption from the R2R requirement does not apply to UC.

Thanks mate!

I’ve come across a couple of these cases in the past week.

This morning’s was particularly galling; clt has been refused UC as an EU national with no right to reside. The client actually had the same issue with JSA back in 2016; appealed and a Tribunal decided clt had a permanent right to reside after 5 yrs continuous legal residence. Tribunal decision submitted as part of HRT in recent UC claim.

The MR notice (which incidentally is appalling - no notification date, no identifying info, name, NINO etc. no right of appeal mentioned…) specifically references the Tribunal’s decision of 2016 but in the next sentence states no evidence has been provided.

I appreciate the Department must satisfy themselves that there is a right to reside and in this case specifically; that the permanent right has not been lost in the intervening years, but a bit of pragmatism is desperately needed.

Another MR decision EEA Worker’s work not genuine and effective as has not shown the work was not short term or that the employment would stop. Client has three months wage slips of FT work 2 months after date of decision to current period and is still employed same employer.  but these facts are not relevant and cannot be taken into account as they occur after the date under appeal.