UC/ESA/HB & R2R

I have a query as to UC/ESA/HB & R2R.

I initially spoke to the client shortly after he had received a decision on the work capability assessment (WCA) which was dated 11 October 2017 and made him an appointment to assist him with the matter for 2-3 weeks hence.

Because he was understandably very anxious he called me once or twice before the appointment. He then told me that he had made a claim for UC (in a full service area) and I told him that he should seek to cancel this claim before it is determined else he will no longer be able to claim legacy benefits.

It would appear that he initially sought to end the UC claim but then he decided to go ahead with it (on the advice of friends) and did not speak to me again until he came in for his appointment.

By the time he came in to see me a decision had been made on the UC claim. The decision was that he was not entitled to UC because as a jobseeker he did not have a right to reside in the UK for the purpose of UC. The UC claim was then closed on 1 November 2017.

The claimant is an Italian national. He lived and worked in the UK from 1982-1984. During this period he worked cash-in-hand. He then returned to Italy.

He was diagnosed HIV+ in 1985.

He did not return to the UK until 1994 and has remained permanently since. He again worked, for a few months, cash-in-hand until he became seriously unwell and could no longer continue his work.

As I understand it since that time he has been in receipt of a sickness benefit (as well as housing benefit) continuously until the recent decision on the WCA.

His HB, I think, was suspended and then stopped as the Local Authority were told that he had made a claim for UC.

I have asked for a mandatory reconsideration of the ESA decision and will do so similarly for HB. The claimant, I think, would have been transitionally protected from the HRT/R2R as he would have had a continuous entitlement since 2004. However, this is not much good to him unless I can get him back on the legacy benefits which would appear unlikely given the rules (and comments on this site).

With respect to his R2R and UC are either of these arguable:

(i) The claimant was a ‘worker’ all be it that he was undertaking cash-in-hand work. His employment stopped as he became too ill to continue in work at that time – so he was temporarily unable to work due to an illness and retained worker status. If he retained worker status for an extended period of time so that a combination of work and retained worker status meant he reached 5 years legally residing in the UK he then obtained a right of permanent residence; or
(ii) Could he have obtained a right of permanent residence in less than 5 years because at the time he stopped work due to permanent incapacity (at that time an HIV diagnosis was effectively a death sentence) and he has resided in the UK continuously for more than 2 years. Does he have to have been in the UK for 2 years before this can apply?

Given that the EEA Regulations did not come into force until April 2006 is it possible to argue any of the above or does the claimant have any other means of protecting or arguing his case under previous EU Directives, Regulations.

Is there any point in the claimant making a new UC claim on the basis of LCW or LCWRA

Any advice you have to offer would be gratefully accepted.

(ii) above was not a new right under the 2004 Directive/2006 Regs - worker’s right to stay in the country after becoming permanently incapacitated has been around since the 1970s, it is one of the rag-bag of tiny directives that were repealed and re-enacted in the consolidated 2004 Directive.

Credible evidence is the problem - it’s hard to imagine DWP buying that story but a Tribunal might.  I know it will be a long time before he gets near a Tribunal but I cannot really see another way now that there is a decided UC claim.  Cannot see a way back to legacy benefits going forward.

Thanks for the reply. At least it’s something to go on.

Just to add to what HB Anorak has said.

It is only the few months’ cash-in-hand work in 1994 that is of any assistance to your client, the previous work and residence won’t help him.

Thanks past caring. I was aware of that.

HB Anorak, Wanted to clarify with you that in order to qualify for the right of permanent residence after 2 years residence in the UK that the permanence of the incapacity must have transpired after 2 years in the UK and not before?

Yes - two years’ residence required before permanent incapacity unless it was caused by an industrial disease/accident or the person has a British spouse or civil partner.

In most cases, permanent incapacity will have a gradual onset - you start off thinking you are temporarily unable to work and then the prognosis worsens.  I am not aware of any case law on this point, but it seems to me that a person should be regarded as having ceased to work as a result of permanent incapacity if they were already temporarily incapacitated.  It would be unusual to wake up to the alarm clock one morning and think “Now, did I iron that shirt?  Oh no - I’m permanently incapacitated! Never saw that coming.”  Obviously a very serious accident would have that effect, but chronic, worsening illness will only gradually make you permanently unfit for work.  If I am right about that, a person could have a record of working for less than two years, then temporary incapacity which gets worse until eventually, after at least two years of residence, it becomes clear they are unlikely ever to work again.  Would that normally have been the case with HIV in the days before they developed the anti-retroviral treatments?

That’s an interesting question - if somebody gains a permanent right to reside due to permanent incapacity but medical treatments advance to the point that the incapacity is no longer permanent do they lose that right to reside? I would imagine that in the vast majority of cases (such as this one) they would be able to argue that as they had 5 years legal residence they could get permanent right to reside on that basis.

I would have a look at the thread below this one (and the threads linked to by Robbie’s post in there) about people being ‘lobster-potted’. My understanding is that if your client is in a full-service area and has had a decision on a UC claim, requesting an MR of the ESA and HB will not get him anywhere as these could only be paid up to the point he claimed UC. I think you should be doing an MR on the UC decision (although I’m still in a live service area so you’d perhaps be best off listening to the full service veterans!).

If he was getting ESA in the past you would hope (!) that the DWP had previously made a favourable RtR decision on something other than jobseeker status - I’d be inviting them to clarify what they think has changed that means client no longer has RtR now he has claimed UC.

Thanks both for your replies.

There is a case which is De Brito v SSHD [2012] EWCA Civ 709. Here is a link to the case summary: https://www.gardencourtchambers.co.uk/Immigration-Law-Bulletin-Issue-278-1-June-2012/
and the full judgement: http://www.bailii.org/ew/cases/EWCA/Civ/2012/709.html.

Hi,

With respect to the client in this case I asked him to make a new claim for UC - the original claim was not awarded on HRT-R2R grounds and he claimed as a workseeker - on the basis of LCW/LCWRA but the claimant has been told that the new claim cannot be progressed until a decision is made on the MR. He has been told that he cannot book his interview with an advisor at the JCP until the MR decision is made. It also states on his journal that his claim will close if he does not book the interview by 23/12/17.

I just need to know if a) we did the write thing to make a new UC claim and b) if the DWP can put the new claim on hold.

The HRT/R2R issue is being or has been addressed and so don’t need any further INFO on this at present.

Thanks