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Returning from abroad : 4 week HB absence rule

benefitsadviser
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Sunderland West Advice Project

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Total Posts: 1003

Joined: 22 June 2010

Clutching at straws a bit and looking for thoughts

Client of mine was living in rented accommodation in Bulgaria for a few years and has decided to retire from work and move back into UK about 3 months ago.

HB refused, due to usual r2r / hab res stuff

Client wanted to appeal etc and i said id look into it.

It now appears that the client left UK for 4 weeks about 6 weeks ago, to tie up all affairs in Bulgaria, and didnt tell me this initially.

As absence from home rule was dropped to 4 weeks in July 2016 (to tie in with UC, and he doesnt fit into any exceptions)

HB say as he was staying in the same rented home in Bulgaria that he used to live in for 4 weeks then he was not ordinarily resident in UK, and if he was then the 4 week rule applies,therefore no HB. They recommend a new claim.

Client said leaving bulgaria was a bit messy and not as easy as he thought it would be due to unforeseen issues,hence 4 weeks to sort.

Client confirmed he did not return to UK for a single day to restart the 4 week clock, so to speak.

I personally think he will need a new claim, and write off previous 3 months HB claim.

Any thoughts would be appreciated

 

HB Anorak
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Benefits consultant/trainer - hbanorak.co.uk, East London

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Joined: 12 March 2013

Well he could argue that he is entitled to HB for the short period before his visit to Bulgaria, and it’s only the six week absence that cannot be covered, but I agree that the visit to Bulgaria does cast doubt on whether he had really re-established habitual residence in the UK already, or indeed whether the dwelling in the UK was even his normal home yet at all.  He has nothing to lose from an appeal, but I can see the Council’s point of view.  He seems to be saying:

“Hello, I’m back - I have very quickly re-established my habitual residence in the UK and severed my ties with Bulgaria, and I have a dwelling here which is my normal home for HB purposes ... hang on, just got to tie a couple of things up, I’ll be back in a few weeks”.  Hmmm.  Doesn’t sound good when you put it like that.

There are a couple of EEA angles to look at before giving up all hope, but both would be overridden by the normal home point: the Council (or a Tribunal) might still say that his UK dwelling had not become his normal home until after he came back for the second time.  It’s a condition of entitlement to HB for all claimants that the dwelling they are claiming for is the dwelling normally occupied as the home, irrespective of any R2R/HRT considerations.

If he could get past the normal home issue, there is a glimmer of hope around habitual residence.  Is he British?  If so he could rely on the old Swaddling case to claim any DWP special non-contributory benefit under the co-ordination rules: you have to be resident somewhere and national rules cannot leave you in limbo. Pension Credit is a special non-contributory benefit and it can be backdated three months ... it then acts as a passport through the HB habitual residence test.  Any chance there?

Alternatively, is he an EEA national and not British?  If so, it would appear that he won’t have a right to reside that is good enough to get through the HB habitual residence test - economically inactive and (presumably) not self-sufficient.