EEA national in UK 25yrs + no R2R
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.
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.
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.
Here’s a link to House of Lords judgment in Kerr -