Being ‘in GB’ requirement for UC

Hi all

Would appreciate views on this case.

The claimant is a EEA national.  Has been in the UK over 5 years, working in both PAYE and self-employment (performer).  She does part time PAYE work which has been reduced to 10 hours and she can do remotely.  She was registered for self-employment and getting work as a performer since November 2018.
She claimed UK on 16th March.  She then went back to Netherlands on 17th March because she was worried that her parents might fall ill and need her due to Coronavirus.  Now cant get back obviously.  Has rent to pay in the UK and intends to return.

Her UC claim has been closed.  They are saying that she isn’t entitled because she isn’t in GB.  They also say that she is not temporarily absent either because she cant say with certainty when she will return.

The rules say that you cannot normally get UC if not in GB but entitled if immediately before the period of absence provided she meets the other rules of entitlement and her one month absence not expected to exceed and does not in fact exceed one month.

So can she argue that she was (in principle?) entitled to UK immediately before she left even though it was only one day?  And then assuming that she fulfils all the other conditions (age, not in education, accepted the claimant commitment and looking for work) and she does in fact return after a month, would she be eligible?

She would need to return to UK by 16th April?  This is probably going to be impossible – if she is prevented from returning due to these unprecedented times, doesn’t make a difference to the rules without legislation change?

I haven’t factored in the HRT a I assume she would pass as a worker/self-employed person with retained status.  Not sure where this fits in as part of the process.

Would really appreciate someone else’s take on this.

In solidarity,

EKS

Did you see this thread Emma?

Whoops!!! See below.

Elliot’s argument is based on someone returning within the same AIP that they claimed and left in.

Personally, I think you might find it difficult in your client’s case.

That is the very wrong link Paul…

But I do remember the thread and it sounds like a similar situation.

Thanks for getting back so quick guys. 

Paul - don’t suppose you have the correct link?

Here it is:
https://www.rightsnet.org.uk/forums/viewthread/15516/

Sorry Emma, thanks Elliot, that all went a bit Pete Tong but yes, that’s the thread I was referencing.

Just to note that in the case in that thread DWP revised the decision. Not clear from the decision notice why they revised it though!

Thanks all - I have read through the other link.

So if I were to boil it down - in my client’s case, because she is not in GB in fact for the first month of her claim, this disentitles her to UC because her temporary absence is highly likely to exceed a month.  The fact this is due to issues beyond her control makes no difference.

As horrible as it is to say this: if her parent/s die due to corona - potentially the temporary absence rule can be extended (?)

11 (2) The period of one month in paragraph (1)(b) may be extended by up to a further month if the temporary absence is in connection with the death of—
(a)
the person’s partner or a child or qualifying young person for whom the person was responsible; or
(b)
a close relative of the person, or of their partner or of a child or qualifying young person for whom the person or their partner was responsible,
and the Secretary of State considers that it would be unreasonable to expect the person to return to Great Britain within the first month.

I will advise her there is potential for entitlement in an instance such as this, or in the unlikely event that she returns within a month of initial claim.

Could we look at this from another angle and suggest she might have an entitlement in the Netherlands. No idea what their rules about contributory benefits are but the coordination regulations might be helpful for these. Or she might be entitled to means tested benefits on other grounds. Hard to know without knowing anything about their system but surely the principle of the “Citizens Directive” is to avoid detriment to people in situations like this.