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Claiming UC after living abroad
Hi there, I have a client wanting to know about applying for benefits. She is a British citizen and has been livng in USA for 4 years. She has coming back to the UK fleeing from Domestic violence with her child eho has dual citizenship. I know that she will not receive UC until she has been living in the UK for 3 months but when should she begin the claim? after 2 months so she will get it then? Or just after 3 months? She has been in UK for 10 days.
Is there any other support she can get due to her situation?
Also; could she get child benefit for her child? Thank you for any advice.
There is no rule that you need to have been in the UK for 3 months to get UC. The rule is that you need to be “habitually resident” in the UK. Whether somebody is habitually resident is a question of fact based on all the circumstances. There is some relevant material here: https://www.gov.uk/guidance/homelessness-code-of-guidance-for-local-authorities/annex-1-the-habitual-residence-test and some more in CPAG.
It would be sensible for apply for UC immediately. If she is refused, then she can claim again and so on (she may also wish to challenge the refusal alongside that). Eventually they will need to accept her as habitually resident.
The three month rule does apply to child benefit - so she will have to wait to get that.
There is no rule that you need to have been in the UK for 3 months to get UC. The rule is that you need to be “habitually resident” in the UK. Whether somebody is habitually resident is a question of fact based on all the circumstances. There is some relevant material here: https://www.gov.uk/guidance/homelessness-code-of-guidance-for-local-authorities/annex-1-the-habitual-residence-test and some more in CPAG.
It would be sensible for apply for UC immediately. If she is refused, then she can claim again and so on (she may also wish to challenge the refusal alongside that). Eventually they will need to accept her as habitually resident.
The three month rule does apply to child benefit - so she will have to wait to get that.
Ah thanks I got it the wrong way round! I have since had new information and she has been living with her mother who is claiming ESA, PIp and the SDP - I am now worried that her mother’s SDP will be affected - am I right in thinking that she has to let DWP know that there is an adult living with her for the forseeable? Thanks again!
Dear All
If a mother enters the UK, shutting down her life abroad, to take on the care of her children, no other parent being able to do so, and her children have been resident in the UK for 4 years could she be entitled to UC a month after her arrival? She had been making immigration applications for a year before arrival, had been looking for work a month before her arrival. However, she is currently homeless and is trying to secure accommodation too.
I see the guidance referred to below. Is there a recent case that sets the test out clearly or an old case for that matter.
How is the issue of an appreciable period of time addressed?
Thanking you in anticipation.
What is her immigration status?
Mother has Leave to enter outside of the rules, permission to work and no restriction on public funds.
The leave is for 6 months but this is to be extended and immigration counsel is of the view this is not an issue, but a procedural matter.
Dear All
If a mother enters the UK, shutting down her life abroad, to take on the care of her children, no other parent being able to do so, and her children have been resident in the UK for 4 years could she be entitled to UC a month after her arrival? She had been making immigration applications for a year before arrival, had been looking for work a month before her arrival. However, she is currently homeless and is trying to secure accommodation too.
I see the guidance referred to below. Is there a recent case that sets the test out clearly or an old case for that matter.
How is the issue of an appreciable period of time addressed?
Thanking you in anticipation.
On the appreciable period of time issue, you should start by reading Nessa v. The Chief Adjudication Officer (HoL) 1999
I see the guidance referred to below. Is there a recent case that sets the test out clearly or an old case for that matter.
The leading case is Nessa v Chief Adjudication Officer [1999] 4 All ER 677 although I wouldn’t say it is set out “clearly” in that case. It is one of these ephemeral concepts that pops up in caselaw but the limits of it are never really spelled out.
Certainly I would be perfectly happy arguing that someone who has given up all ties to her previous country and who has established clear ties to the UK by reason of the need to look after her children here is “habitually resident” within a month.
It is worth saying that the same goes for statutory homelessness provision from the local authority.
Only thing to add to this is that I’ve certainly argued with success in the past that returning British nationals can, depending on the circumstances, be habitually resident on arrival. Someone fleeing domestic violence is a case in point - I would certainly be looking to appeal a negative decision in the circumstances of the opening post, as well as advising to reclaim.
The DWP’s mistaken belief that there is some ‘rule’ that a person needs to be present for at least 3 months before habitual residence can be acquired shouldn’t influence our thinking. Read Nessa - essentially, there needs to be a ‘settled intention to remain’ and that means to make your home here for the time being/foreseeable (which need not be permanent). The things that the DWP usually refers to - registering with a GP, putting your kids into school (or on the waiting list) opening a bank account etc. may be indicative of that intention, but they’re not requirements.
And the fact there is no 3 month rule cuts both ways - I’ve recently advised someone who acquired British citizenship in 2019, who intended to come here in 2020 but was prevented by the pandemic, who then did come in 2021 but then found himself street homeless after a month when the friend he was staying with kicked him out. He’s now in hospital awaiting neck surgery which is being delayed until is housing situation can be sorted out on discharge. But he’s confessed to me that his intention in coming was to have that neck surgery - and after he’s recuperated to return to the country he came from. He’s been here some 8 months. He isn’t habitually resident - and without a change to his intentions, he isn’t going to be.
Dear All
Thank-you for that very helpful information, which is reassuring and yes she my client is also applying for housing under the statutory homelessness provision. I had counsels opinion on a related tenancy issue in the same case but when she spoke about the mother and habitual residence I was really rather surprised by her comments, looking at 9/12 months for hab res which I felt could not be right. I did deal with these matters over 20years ago and thought there may have been some radical changes but there do not seem to be.
Thank-you for your time and efforts.
Best wishes