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UC not understanding permanent residence

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JojoMitchell
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Jumping on this thread as just seen a client who has a HO permanent residence card yet UC are only awarding UC to her spouse. Helpline staying that this only helps with R2R and not HRT. Am I missing something? She had to stop work in 2017 as her husband had a stroke and she receives CA. Both are EEA nationals as came to UK from Sri Lanka via Germany in2009.

     
HB Anorak
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Technically they are right, having a 5-year permanent R2R does not automatically satisfy the HRT in the way that, say, being a worker or a refugee does. But it is difficult to imagine how someone who has lived here since 2009 could not be habitually resident.  Unless there are some unusual facts we aren’t aware of?

     
JojoMitchell
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None that I’m aware of. Worked continuously for 5 years which ended in 2017. UC stating insufficient proof of work (provided P60’s) and unable to derive rights from husband ( stroke). What should the client do?seems ridiculous that she will need to appeal..

     
Elliot Kent
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I think the card is a bit of a red herring to be honest.

You said that the DWP accept the spouse is entitled to UC but they don’t accept she is. If they are married, then she can piggyback on her spouse’s right to reside and we don’t have to worry too much about arguing her own status with them. The most obvious explanation for the situation is that the DWP are unaware that they are in fact married.

     
JojoMitchell
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Will recheck the MRN as it definitely said that she couldn’t derive rights from her husband.

Thanks for the advice!

     
HB Anorak
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Hmmm, contradicting themselves. The Helpline were correct in a purely technical sense, but it would be a very odd set of facts that saw one of them satisfy the factual part of the HRT and the other not. But the MRN sounds like confused rubbish

     
Elliot Kent
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HB Anorak - 10 October 2018 08:01 PM

But the MRN sounds like confused rubbish

Also a reasonable guess.

I really have a hard time parsing the sort of mental gymnastics that the DM would have to have been through to draw out a scenario in which your client could be a permanent resident, not have lost that residence through two years absence and also have a husband who is (presumably) a permanent resident too (or at least has some sort of right to reside), but meanwhile not be habitually resident in the UK herself, whilst her husband is.

But the last 18 months of challenging these UC RTR decisions has taught me never to be surprised.

     
shayma
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HB Anorak - 10 October 2018 05:00 PM

Technically they are right, having a 5-year permanent R2R does not automatically satisfy the HRT in the way that, say, being a worker or a refugee does. But it is difficult to imagine how someone who has lived here since 2009 could not be habitually resident.  Unless there are some unusual facts we aren’t aware of?

Would you know how long UC have to make decision on HRT on a claim or can they prolong it forever?  Any idea where it is in guidance that they can delay claim?

 

     
Elliot Kent
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shayma - 19 October 2018 03:14 PM

Would you know how long UC have to make decision on HRT on a claim or can they prolong it forever?  Any idea where it is in guidance that they can delay claim?

It normally takes about 2-6 weeks for the initial decision depending on whether a HRT interview is needed, how complicated the case is and how busy they are. There is no upper limit as such but you could always make a complaint if things are taking too long.

(Also do feel free to refer to us with any issues on these cases - we take quite a few referrals from YHN with a good deal of success)