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Tenant with PSS claiming pension credit following death of husband who had settled status - HRT question
Hi,
My tenant was wrongly awarded Pre-settled status despite living here since 1999. I have reapplied for settled status but this might take a bit of time to be resolved. In the meantime, her husband who was retired and had settled status has died leaving her with just her carer’s allowance run-on.
I put a claim for pension credit for her but they are asking for evidence for her right of residence and state they cannot escalate it until they have that.
Until she gets granted settled status, my argument is that she was the family member of someone who had a permanent right to reside as at 31/12.2020 from having worked in the UK continuously for at least 5 years and not having left. She never exercised Treaty rights herself.
Will this be accepted and do we need to provide evidence of her husband’s past work as they are asking us? I was hoping they can use the fact that he had a pension credit, attendance allowance claim etc. as evidence of his right to reside.
Thanks
Your client has pre-settled status, so if they have an EU law right to reside, they will get over the RTR hurdle.
There are a number of routes to your client having an EU law right to reside. One is if they were married to a worker for 5 years then they have a permanent right to reside. Potentially a simpler route is if they were married to a worker who ceased activity - i.e. by retiring - then they would have also have obtained a permanent right to reside even if the work had not continued for 5 years - see reg 15(1)(d) EEA Regs.
Your client has pre-settled status, so if they have an EU law right to reside, they will get over the RTR hurdle.
There are a number of routes to your client having an EU law right to reside. One is if they were married to a worker for 5 years then they have a permanent right to reside. Potentially a simpler route is if they were married to a worker who ceased activity - i.e. by retiring - then they would have also have obtained a permanent right to reside even if the work had not continued for 5 years - see reg 15(1)(d) EEA Regs.
Hi. I have quoted the legislation, provided evidence that her husband had a pension credit claim with a couple element and a carer element (so she must have passed the RTR once) and her carer allowance claim. They say they need evidence such as P60s etc. Unfortunately my client hasn’t kept anything. Her husband had been retired for a while. What would you do? It seems surprising that they cannot take as evidence the fact that the RTR was met on two different occasions.
I’ve never known DWP to accept those sorts of circumstantial arguments based on someone having (presumably) satisfied a HRT in the past. It would be better if you can provide direct evidence of work or alternatively NI records. DWP can access the NI records themselves of course, but they often don’t.
Beyond that I would not be dissuaded and would just continue pushing it to appeal etc. The fact that your argument isn’t being accepted by the first instance people rarely has anything to do with the quality of the argument.
Thank you. Do you know if I have to include the death certificate and proof of being next of kin if I do a HMRC subject matter request for his employment and tax records? I see the form to fill in but am not sure how it works for someone who has passed away. Many thanks.
You could ask the DWP to find the information as per Kerr [2004] UKHL 23 and if they still refuse, escalate it as a complaint.
Jim