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derivative rights for disabled dependant aged 20?
Hello everyone - was just wondering if anyone could help with the following:
I have a client who has failed HRT for UC for not having R2R - he is severely disabled and his dad is his appointee. been in UK 3 continuous years no work history. His dad is currently his carer but did genuine and effective work two years ago while son was in special education.
derivative right to reside seems like the obvious option however the legislation under Reg 16 seems to only specify persons under 18?
Also aware that an individual aged under 21 is classed as a dependant regarding family member rules for R2R without needing to establish dependence but the dad isn’t a qualifying person either and this route is parasitic.
Can I argue under derivative right to reside under this circumstances regardless or does anyone know of any case law that would be helpful?
thanks in advance for any help!
There are certainly cases in which a young adult has sought to rely on a derivative right to reside as the person who was in education, rather than the primary carer of such a person: for example Gaal and Brown where the appellants were seeking equal access to student finance. But these cases still turned on periods in the person’s childhood when their parents had been workers. I am not aware of any cases involving a derivative right founded on education at a time when the person was already an adult in the host state.
There may be some mileage in the fact that EU law seems to recognise 21 as the magic “grown-up” age, as opposed to age of majority in the host state. Trouble is, I believe the age of majority is 18 in all EU member states.
It boils down a simple point of law: is a person who has attained the age of 18 but not the age of 21 still regarded as a “child” for the purpose of Article 10 of Reg 492/2011? I don’t know. I suspect not.
There is ECJ case law on this. I used it once but the reference escapes me for the moment. My client was an 18 yo who had a derivative (Teixeira) right as a child in education and whose mother, his primary carer, has left the UK and was not coming back.
The DWP confused itself by saying that his right ended as soon as his mother ceased to be his primary carer. In law, that only ended her right not his. The ECJ had ruled that his right continued past the age of 18 to allow him to finish his studies. The DWP eventually capitulated when I put these submissions to them.
There is ECJ case law on this. I used it once but the reference escapes me for the moment. My client was an 18 yo who had a derivative (Teixeira) right as a child in education and whose mother, his primary carer, has left the UK and was not coming back.
The DWP confused itself by saying that his right ended as soon as his mother ceased to be his primary carer. In law, that only ended her right not his. The ECJ had ruled that his right continued past the age of 18 to allow him to finish his studies. The DWP eventually capitulated when I put these submissions to them.
Yes, that’s an exact copy of the Gaal facts. The OP’s problem is that there doesn’t appear to have been a common period in which the claimant was a child under 18 and his/her parent was a worker. I’m not sure the body of case law yet addresses a case where the derivative right relies on worker status after the child reached age 18.
I have a client who has failed HRT for UC for not having R2R - he is severely disabled and his dad is his appointee. been in UK 3 continuous years no work history. His dad is currently his carer but did genuine and effective work two years ago while son was in special education.
Is the “child” still in education?
I have a client who has failed HRT for UC for not having R2R - he is severely disabled and his dad is his appointee. been in UK 3 continuous years no work history. His dad is currently his carer but did genuine and effective work two years ago while son was in special education.
Is the “child” still in education?
Ah yes, of course: this whole debate is academic otherwise
Could dad have retained worker status
I have a client who has failed HRT for UC for not having R2R - he is severely disabled and his dad is his appointee. been in UK 3 continuous years no work history. His dad is currently his carer but did genuine and effective work two years ago while son was in special education.
Is the “child” still in education?
Ah yes, of course: this whole debate is academic otherwise
Yes, the “child” is 20 and currently undertaking a SEN course
Could dad have retained worker status
no - only considerable route here would have been due to temp illness/accident and care needs for a family member cannot be considered under this route
Could involuntarily unemployed apply? Could not continue with job due to care needs? Obviously the having registered as a jobseeker could be a problem