Forum Home → Discussion → Residence issues → Thread
UC not understanding permanent residence
We are a full service area. Two clients with permanent residence, letters from home office and all, are being refused UC on grounds of no right to reside.
UC DMs are re-opening the question of whether they are entitled to PR—where is their EU partner? is the EU partner working? etc. In temp accommodation the council is following this up by refusing HB and telling the clients to go to the NRPF team and accept accommodation with Social Services.
Obviously we can help them appeal etc and we can tell the council it must take its own decision on entitlement.
What is the right advice about NRPF or social services if the client is thrown out of temp accom? (challenge the eviction etc, I recognise it’s legally aidable and we have a housing sol.)
You’re not the first to report similar:
https://www.rightsnet.org.uk/forums/viewthread/13344/
Hostile Enviroment redux?
What is the right advice about NRPF or social services if the client is thrown out of temp accom? (challenge the eviction etc, I recognise it’s legally aidable and we have a housing sol.)
It’s not a case of fighting the provider’s decision to evict them out of temp - that’s a losing battle - you have to argue it with the local authority.
If the claimant is in temp, the LA has probably put them there having received an application for homelessness assistance.
The LA is obliged to provide suitable interim accommodation to any person who it has reason to believe is eligible (i.e. has a right to reside and is habitually resident), is homeless and is in priority need.
Having “reason to believe” that someone has a right to reside is a significantly lower threshold than actually finding that they do - so the LA’s duty can persist even whilst there are disputes about the issue and temp needs to be provided in the meantime.
So the LA has a choice - it can either put the claimant up in temp at its own expense OR it can make its own decision as to whether the claimant is actually eligible - which is subject to review for which legal aid is available.
Many LAs are reluctant to make their own actual decisions on eligibility and will instead defer to the DWP view. They do not want to be caught in a position where (a) they have accepted a duty to find suitable long term accommodation and (b) the DWP has refused to award benefit so there are no funds available to fund the long term accommodation.
So the most common resolution in my experience is that the LA puts them up rent-free whilst the dispute plods along or the claimant moves somewhere else.
(As per usual, I am speaking as a Northerner and there may be regional variations given the very different housing situation in London - but that is my experience)
We are a full service area. Two clients with permanent residence, letters from home office and all, are being refused UC on grounds of no right to reside.
UC DMs are re-opening the question of whether they are entitled to PR -
i don’t quite understand where UC gets off telling the Home Office they are wrong - they can’t, it’s not their jurisdiction.
escalate it pronto, i should think, and involve the MP
see earlier post https://www.rightsnet.org.uk/forums/viewthread/13344/
Having considered the DWP reasons in our case further it appears DWP are arguing:
(1) determinations (i.e. R2R) embodied in an outcome decision are not conclusive for the purposes of a further claim for the same benefit [SSA s 17(2)].
(2) therefore that determination is not conclusive for a claim for a different benefit.
(3) determinations under the I(EEA)Regs are not a determination for the SSWP but for the Home Office.
(4) the way in which decisions are made and legislated for can be very different in the HO from the DWP. However if a person meets the criteria in I(EEA)Reg 15 they do not have to make a claim [to the HO] and no decision [by the HO] is required. However if the person wants to benefit from that right [for benefit purposes] they have to prove it [to the DWP].
(5) in the earlier claim [for JSA/ESA - DWP are confused as to which!] the claimant was able to demonstrate R2R to the DM. The DM in the UC case is not prepared to accept that earlier evaluation [although it clear the current DM did not look at the earlier evidence or reasons for that decision].
In this case as this is a decision made following a claim for FSUC as required by a transfer from LSUC we assume a R2R determination must have been made for the LSUC claim (when I last looked LSUC and FSUC are one and the same benefit under WRA s1).
What is of more concern is if this approach is followed on natural migration, and in due course managed migration, claimants who had a determination of a R2R under a legacy benefit could have that determination ‘ignored’ on a claim for UC and receive a negative outcome. Obviously the implication is alarming.
What is of more concern is if this approach is followed on natural migration, and in due course managed migration, claimants who had a determination of a R2R under a legacy benefit could have that determination ‘ignored’ on a claim for UC and receive a negative outcome. Obviously the implication is alarming
Happens all the time though: if DM2 disagrees with something DM1 did, then DM2 will do it differently at such time as DM2 is called upon to make a decision. The courts/UT judges down the years have repeatedly pointed out the doctrines of estoppel and legitimate expectation are displaced by the statutory provisions on finality in social security adjudication. It can work in the claimant’s favour, it can work against the claimant. Deprivation of capital and HB dodgy tenancies are two examples of the type of case where this happens a lot, sometimes even between an entitlement decision and a related overpayment decision.
What DM2 does need, however, are grounds to make a decision. If there is a new claim, that’s clear enough. But moving from live service to full service UC - does that actually require or even allow a superseding decision on R2R? Some regulations are slightly different in full service (eg treatment of income other than earnings), but unless any of the differences are engaged at the material time I am not sure that shifting a person’s case onto a new system is something that requires a decision. It is also arguably an abuse of process to use a completely unrelated change of circumstance as an excuse to revisit something that would otherwise not be amenable to supersession (Neil Wood case).
With Permanent Residence the DM in UC is not ignoring a previous DWP determination but a fact.
And not just a fact which has to be demonstrated but a fact which has been demonstrated and accepted by Home Office.
yes, the MP. thank you.
I think the LA will have to accommodate both these people somehow until this is resolved—one because she has two small children and the other because he is in supported accommodation.
As someone said the LA is taking the view that the DWP view should prevail—this is what the housing officers are shouting at the client, he tells me.
What is of more concern is if this approach is followed on natural migration, and in due course managed migration, claimants who had a determination of a R2R under a legacy benefit could have that determination ‘ignored’ on a claim for UC and receive a negative outcome. Obviously the implication is alarming
Happens all the time though:
I was thinking of the potential volume of cases rather than it being a novel experience!
On the right to reside issue alone.
When the Social Security Act 1998 abolished the system of independent adjudication officers answerable to the Chief Adjudication Officer it also established the Secretary of State as the sole legal entity responsible for the making of all decisions.
So, even where in practice, this is devolved to a system of separate decision makers, the Secretary of State still must have a damn good reason for ‘changing his mind’ in an individual case. His brain is not full of little men running around squabbling with each other. It is up to him to examine the evidence held for the previous rtr decision to see whether it is robust. If it is then he must run with it in his new determination. This is a legal responsibility that he just cannot abdicate.
A simple example will suffice. If I as, say, a Lithuanian national has already provided a bonafide contract of full time employment, five years’ worth of P60’s showing substantial earnings for each year, copies of monthly pay slips for each year of that period and say, just for fun, a letter from my employer confirming continued employment for the whole of that period for a JSA decision, then unless the SoS has evidence that I have perpetrated a huge con then he cannot legally go behind his own previous decision in determining a later UC claim. He must, as a bare minimum, examine the evidence that he already holds.
To be sure, he is entitled to ask further questions due to the passing of time, such as whether I’ve subsequently lost permanent residence due to being out of the country for two years: but that is merely an evidence gathering exercise for the purpose of legal certainty. Likewise a Home Office decision on the question does not bind him unless he has seen the evidence behind that decision. He has to make up his own mind. But once he has made it then there has to be some degree of conclusiveness about that. We simply cannot have the SoS running around his own department like some petulant, out of control Donald Trump changing his mind from one minute to the next on a mere whim or mood change. We are entitled to a certain degree of consistency and legal certainty.
It seems to me that the part of the DWP that administers UC is acting like some kind of semi-autonomous petty fiefdom within the department, making up its own rules as it goes along. This has got to stop.
“Likewise a Home Office decision on the question does not bind him unless he has seen the evidence behind that decision. “
So you are agreeing that the UC DM can go behind the Home Office decision and make its own decision on permanent residence. Not just has he been out of the country for six months and lost PR - but has he worked, where is the EU citizen now etc?
The HO letter says specifically that the client is entitled to all benefits for which he is eligible (ie jobless, renting, looking after children). No hint that the DWP makes its own decision on recourse to public funds in principle ie right to reside.
Does one bit of government no bind another?
“Likewise a Home Office decision on the question does not bind him unless he has seen the evidence behind that decision. “
So you are agreeing that the UC DM can go behind the Home Office decision and make its own decision on permanent residence. Not just has he been out of the country for six months and lost PR - but has he worked, where is the EU citizen now etc?
The HO letter says specifically that the client is entitled to all benefits for which he is eligible (ie jobless, renting, looking after children). No hint that the DWP makes its own decision on recourse to public funds in principle ie right to reside.
Does one bit of government no bind another?
they do when it comes to immigration. I really don’t see how the DWP can argue with a HO decision on the point. that way madness lies….
and if they insist they can, i’d be getting counsel involved sharpish - if that ain’t something you can get legal aid on, then the system is even more broken that we already know it is….
“Likewise a Home Office decision on the question does not bind him unless he has seen the evidence behind that decision. “
So you are agreeing that the UC DM can go behind the Home Office decision and make its own decision on permanent residence. Not just has he been out of the country for six months and lost PR - but has he worked, where is the EU citizen now etc?
The HO letter says specifically that the client is entitled to all benefits for which he is eligible (ie jobless, renting, looking after children). No hint that the DWP makes its own decision on recourse to public funds in principle ie right to reside.
Does one bit of government no bind another?
What I’m saying is that the DWP does not have to blindly follow a Home Office determination as a matter of law in all cases. Each case will turn on its own facts. The case below (although distinguished) is just one example where the DWP was entitled to go behind HO documents certifying permanent residence when the facts suggested otherwise.
thanks very much. That helps enormously
What I’m saying is that the DWP does not have to blindly follow a Home Office determination as a matter of law in all cases. Each case will turn on its own facts. The case below (although distinguished) is just one example where the DWP was entitled to go behind HO documents certifying permanent residence when the facts suggested otherwise.
I see what you mean now
effectively, therefore, it depends on the basis of the person’s residence, under what bit of law the HO have decided as they have, so on and so forth.
The way the question was originally put i was thinking of e g. asylum claims and so on where it is indeed for the HO to make the relevant decision (and DWP couldn’t go behind that).
“The way the question was originally put i was thinking of e g. asylum claims and so on where it is indeed for the HO to make the relevant decision (and DWP couldn’t go behind that).”
On that, I agree completely.
The issue in these cases is that there is a difference between conventional immigration status and EEA rights of residence. Non-EEA nationals generally require leave to enter or remain in the UK, which in most cases only exists if the Home Office actively awards it. A residence document shows that the person has been granted leave - it is not something that needs to be determined by a decision maker at the point of service delivery.
But EEA residence documents do not confer any rights in themselves - they provide evidence of a right that already existed by virtue of the person’s economic status. If the document is not a permanent residence card its evidence value is reduced because it is a snapshot: a card issued last year does not prove that you still have a right of residence today, although it can lower the evidence threshold. For example if I see a family member residence card issued to the spouse of a worker, I will probably take it for granted that the person is married to someone who is an EEA national, but I would still want to check that the spouse continues to work. A permanent residence card is a much better piece of evidence and normally will be sufficient - the case referred to above was unusual in that there was compelling counter-evidence that he really did not have a permanent right to reside. I don’t think it is authority for decision makers to ignore residence documents altogether, otherwise what is the point in having one? But it is a reminder that even a permanent residence card is evidence of a right rather than an instrument granting a right.