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EEA national in UK 25yrs + no R2R

DebbieS
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This client has been in the UK since 1991, some periods of work and some periods of benefit until 2000 when we were led to believe by DWP and HMRC, he claimed incapacity benefit from March 2000 to Nov 2011. Further periods on ESA/JSA until (long story cut short) on 7.12.17, the day after his postcode went full service for UC, he claimed UC. DWP turned him down has being a job seeker so not entitled. He made a further 2 claims and we have appealed the most recent one so that the Tribunal can decide if he has acquired PR through being a worker temporarily unable to work through illness. He has never married or had children.

DWP cannot give the exact dates of his JSA claims in the ‘90s, HMRC cannot tell us (as they seem to be able to for everyone else!) the dates of his employment. Our argument was going to be that he must have been working in order to satisfy the NI contributions for incapacity benefit which DWP had clearly indicated he was receiving, he doesn’t have to claim benefit immediately upon becoming ill and he may have acquired PR along the way.

Yesterday the client dropped off the appeal bundle which had been sent to him Nov 6th. This indicates that according to DWP records, he didn’t meet the NI contributions for IB and “would have received income support due to sickness”. He also produced a letter informing him the Tribunal hearing is next week.

The client is in the process of being evicted, has had no income for a year and will be homeless and destitute come March when he could apply for settled status.

I guess the real question is how to deal with the Tribunal - we can’t represent him as we don’t have the resources can we submit information now (less than 7 days to go) or should we give it to him to produce on the day? Anhy help gratefully received.

ClairemHodgson
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think the DWP should be asked by the tribunal (by way of a direction) to produce his NI credit history (HMRC contributions agency) which will tell everyone a lot about his NI contributions, his tax payments, etc in any one tax year - they’ve an obligation to do that if tribunal directs, and tribunal can’t make any decision without that info.

AlexJ
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In terms of trying to get NI records etc, I would quote Kerr v SSWP as an authority which obliges the DWP to play it’s part when it comes to obtaining evidence that is relevant to benefit entitlement:

62. What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced.

So perhaps you could invite the Tribunal to question the appellant orally about his work history prior to the IB/IS claim (which, as you say, should count towards permanent residence as it was a temporary incapacity as he is now looking for work) and if the Judge feels that this oral evidence is sufficient to convince them that your client had established worker status, they could allow the appeal on 5 years permanent residence on the grounds of temporary incapacity. If the Tribunal Judge is not satisfied of your client’s worker status solely based on his oral evidence, you could quote Kerr and argue that they should adjourn and direct the DWP to provide NI records etc. Ideally you would also show any steps that the client or someone on his behalf has taken to try to obtain such evidence themselves prior to the hearing, in order to show that the client has ‘played their part’ (see Kerr quote above) as best they can.

Ros
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Here’s a link to House of Lords judgment in Kerr -
https://publications.parliament.uk/pa/ld200304/ldjudgmt/jd040506/kerr-1.htm

DebbieS
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Thanks for your comments. I asked the client to drop in before his hearing so I could advise him what he needed to make sure happened (ie questions about his work history etc) but he did not do so. The Tribunal upheld the DWP decision: client has no right to reside for UC. Client had his NI history from HMRC so they should have had sufficient information but the IB/IS thing is very annoying!

Paul_Treloar_AgeUK
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DebbieS - 13 December 2018 03:48 PM

Thanks for your comments. I asked the client to drop in before his hearing so I could advise him what he needed to make sure happened (ie questions about his work history etc) but he did not do so. The Tribunal upheld the DWP decision: client has no right to reside for UC. Client had his NI history from HMRC so they should have had sufficient information but the IB/IS thing is very annoying!

Ask for the statement of reasons and record of proceedings, I bet you can find some grounds for error in law and application to Upper Tribunal.

Don’t forget about CPAG Upper Tribunal Assistance Project

davidsmithp1000
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NI details are all now online too, if this helps at all ...

https://www.gov.uk/log-in-register-hmrc-online-services

mycatismo
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AlexJ - the paragraph you have quoted that begins with 62 (as below):
I couldn’t find this in Kerr?(I followed the link to the House of Lords judgement
Have I misunderstood and it’s from something else???
It would be a useful thing to quote -the nearest I could find in Kerr was in paragraphs 15-17 but it doesn’t seem to say exactly what I would like it to say” (in terms of onus on DWP)

” 62. What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced.”

From Kerr:
”    15.  In this situation there is no formal burden of proof on either side. The process is essentially a fact-gathering exercise, conducted largely if not entirely on paper, to which both the claimant and the department must contribute. The claimant must answer such questions as the department may choose to put to him honestly and to the best of his ability. The department must then make such inquiries as it can to supplement the information which the claimant has given to it. The matter is then in the hands of the adjudicator. All being well, the issue of entitlement will be resolved without difficulty.

  16.  But there some basic principles which made be used to guide the decision where the information falls short of what is needed for a clear decision to be made one way or the other:

  (1)  Facts which may reasonably be supposed to be within the claimant’s own knowledge are for the claimant to supply at each stage in the inquiry.

  (2)  But the claimant must be given a reasonable opportunity to supply them. Knowledge as to the information that is needed to deal with his claim lies with the department, not with him.

  (3)  So it is for the department to ask the relevant questions. The claimant is not to be faulted if the relevant questions to show whether or not the claim is excluded by the Regulations were not asked.

  (4)  The general rule is that it is for the party who alleges an affirmative to make good his allegation. It is also a general rule that he who desires to take advantage of an exception must bring himself within the provisions of the exception. As Lord Wilberforce observed, exceptions are to be set up by those who rely on them: Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107, 130.

  17.  If therefore the claimant and the department have both done all that could reasonably have been expected of them, the issue of fact must be decided according to whether it was for the claimant to assert it or for the department to bring the case within an exception. For this purpose regulation 6 divides itself into two parts. The facts referred to in paragraphs (1) and (2), read with paragraph (5), are for the claimant to assert. The facts referred to in paragraph (3), read with paragraph (4), and paragraph (6), read with paragraph (7), are in the nature of exceptions - the phrase “shall not be entitled” is used in paragraphs (3) and (6) - which must be set up by the department.”

Thank you!

Ros
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Hi Mycatismo - para 62 is there in the Kerr House of Lords judgment -just have to scroll through to this page to get it -
https://publications.parliament.uk/pa/ld200304/ldjudgmt/jd040506/kerr-3.htm

cheers Ros

mycatismo
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Housing Systems, Leeds

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Thanks Ros- I am a plonker. I didn’t see the little word “continue” at the bottom of page one.

Ros
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certainly no plonkerishness there :)