UC Carer Element and past presence test

Hi,

Page 73 CPAG Welfare Benefits and Tax Credits Handbook 2021/2022 says that a UC carer element can be added if you satisfy the conditions for Carer’s Allowance. Page 552 says you qualify for carer’s allowance if…....you satisfy the residence conditions. I’m reading this as meaning you have to have been present in GB for at least 104 weeks out of the last 156 in order to be entitled to Carer’s Allowance therefore the same in order to qualify for a carer element in UC. Am I correct (I hope not)?

Jim

Looking at where you work, don’t forget past presence test doesn’t apply to refugees and their families - see CPAG pg 1631.

But otherwise reg 30 seems clear that all conditions other than earnings apply in order to be eligible for a carer element

Thanks Daphne. The service user isn’t a refugee but an EEA national who has pre-settled status and has only lived in the UK since November 2020. She’s never worked nor paid NICs in any EEA country and isn’t married to an EEA National.

Jim

So she may have an argument that she has a genuine link to the UK and can therefore bypass the past presence test. I don’t think fact that no NI paid is fatal- she is plainly a person within scope of EU Co-ordination Reg - for example NICS being paid as on UC-

see ADM Memo 11/19 which explains the caselaw on genuine link.

I would say fact she has been put on route to permanent residence via the grant of PSS shows a genuine link.

Funny as you end up with an appeal about an EU aspect of the PIP residence test in a UC case.

Martin

Thanks Martin. I will look into this with her. She has been working in the UK since 23-11-21 and I have managed to get UC to backdate to that date even though she does not earn enough to pay NICs. They at first refused saying her work was not Genuine and Effective but I challenged this with a MR request which they carried out and then changed their decision.

Jim

If she is working and paying NI contributions then I think your client is treated as satisfying the PPT without having to show genuine and sufficient link to the UK’s social security system.  See paragraph 071796:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1020468/dmgch0702.pdf

James,

She doesn’t earn enough to pay NICs. I think her employer has paid a little employer’s NI.

Jim

Jim

Sorry, I hadn’t read your earlier posts carefully enough.

I do wonder, however, whether the DWP’s requirement for a worker to be paying NI in order to be treated as satisfying the PPT is simply their way of trying to define people who are doing “genuine and effective” work and so should be given worker status.

So if the DWP have already conceded for other purposes that your client is doing genuine and effective work, perhaps this has a PPT impact as well?

Thanks James. They are treating her as a worker. I will look in to this. Thanks everyone who responded.

Jim