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Which status trumps?

Jo_Smith
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Citizens Advice Hillingdon

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Joined: 3 October 2018

I recall we’ve had this discussion here before- but it was a while ago and I cannot find relevant posts.

My client is a 19 yo EU national who lives with his father. Client is not a student- he is a jobseeker.
Father is EU national who works in UK. He is in receipt of UC himself.
They have been both in UK for 2 years.
Client’s UC refused- decision he is a jobseeker.
But he is also a family member under UC Regs, Reg 9(4)(b) and Reg 7(1)(b)(i) Imm (EEA) Regs 2016

How do I persuade DWP to use his “family member” status rather than “jobseeker” status for purposes of HRT?

Edit: I kept looking for other posts and I found some but they were about Jobseeker versus derivative R2R. But being a family member is not a derivative right, is it?

[ Edited: 20 Nov 2020 at 11:34 am by Jo_Smith ]
Elliot Kent
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Shelter

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No such thing as a ‘trump’. The exclusion from UC applies only to a person whose only right to reside is as a jobseeker. If your client also has another right, then he is fine.

It’s possible to e.g. be a jobseeker with pre-settled status, a spouse who is a worker, a father who is a permanent resident etc. etc. You can rely on whatever status is most useful to you.

The ‘trump’ discussion is more relevant in the context of derivative rights where DWP at least have some sort of argument (albeit a bad one) that the jobseeker status overrides the derivative right due to reg 16(1)(a) and (7)(c) EEA regs.

AlexJ
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Trafford Welfare Rights

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Elliot Kent - 20 November 2020 11:33 AM

No such thing as a ‘trump’. The exclusion from UC applies only to a person whose only right to reside is as a jobseeker. If your client also has another right, then he is fine.

It’s possible to e.g. be a jobseeker with pre-settled status, a spouse who is a worker, a father who is a permanent resident etc. etc. You can rely on whatever status is most useful to you.

The ‘trump’ discussion is more relevant in the context of derivative rights where DWP at least have some sort of argument (albeit a bad one) that the jobseeker status overrides the derivative right due to reg 16(1)(a) and (7)(c) EEA regs.

Indeed, the DWP appear to have set up some kind of hierarchy of residence rights that doesn’t seem to have any basis in EU law. This has come up for me a few times in cases where there’s been a dispute over whether someone has a R2R as a primary carer. The DWP have argued ‘no they don’t because they’re a jobseeker’. I quite like Judge Jacobs’ comments on this in CE/1283/2017:

The Tribunal accepted and repeated the argument put by the Secretary of State that the claimant could not benefit from regulation 15A (of the 2006 EEA regs, now found in reg 16 of the 2016 regs) as his wife had not exhausted all her rights to reside. I do not understand what that means, how it is derived from the language of the legislation, or how it is consistent with the caselaw of the Court of Justice of the European Union that the regulation was designed (I assume) to codify (paragraph 10).

But as Elliot says, I don’t think this should have a bearing on your case.