options for EEA national during unpaid dependency leave

Hi, hoping someone can point me in the right direction here.

My client is a Spanish national with three Spanish children (school age) and a non EEA spouse dependent. She has been living and working in the UK for one year. She is in receipt of legacy benefits: tax credits and HB.

She is currently taking unpaid dependency leave to look after one of her children. This could be for up to a couple of months.

As far as I can see, she should continue to be entitled to HB and tax credits, on the basis that she has the right to reside as the primary carer of a dependent EEA national in education. So if she notifies HB and tax credits office, she should still be entitled to child tax credit and housing benefit based on nil income. One question I have is: would she retain worker status anyway on the basis that she is still employed, albeit currently with no income?

The other option would be to make a new claim for Universal Credit, but she may be best avoiding it. As far as I can see, she would be entitled to U/C while taking unpaid dependency leave and therefore significantly better off while off work (by about £400 per month). She would be slightly better off on U/C when she returned to work. However, as a couple they would be subject to conditionality, and benefit applications could be delayed pending a decision by Universal Credit as to whether she had right to reside. So she might well be better off staying on legacy benefits, but that also depends on how long she is going to be off work.

Does that sound about right?

Sorry for the delayed response - but yes, that sounds about right.

In my view, there is no reason why she would not continue to be a worker for EU purposes whilst in a relatively short period of unpaid leave when her job will still be there to return to. Perhaps it might be different if she were taking a two year sabbatical or something like that.

And as to the second point, I would be slow to encourage someone in a reasonably stable position to risk it all by making a UC claim. The quality of decision making is so poor that even if everything is spelled out, there is a risk of getting embroiled in disputes and appeals which is probably not worth it if you have a choice in the matter.

Thanks for this, Elliot.

I think I will just need to let her know her options, including the fact that a U/C claim could result in a substantial delay in benefit being paid and that husband could be required to undertake work related activity.

Simon