1408/71 and claiming HB and others.

Hi all

Does anyone know if someone from another member state getting a benefit under 1408/71 able to claim Housing Benefit and esa to top up there income.

The situation is a polish National who came to the UK in 2003 as a student. They are a student until 2007 when they become permanently incapable of work and start claiming what appear to be the equivalent of IB and DLA from Poland. They remain in the UK. They have no other income and have not been paid any UK benefit previously. Please note that they have never worked.

The questions I am puzzling over are:

1) Can someone who is getting a benefit under 1408/71 form one state claim a benefit from the another state without affecting entitlement to that benefit or will the claim simply be refused on the basis that it is not the member state?

2) If the answer is yes they can can someone with a contributions based Incapacity Benefit from another member stated claim income related ESA to top up there income in the UK or will they lose that benefit.

3) Is someone in the above situation deemed to be ‘lawfully resident’ in the member state in which they reside for Directive 2004/38/EC or will they be classed as resident in the state from which there benefit is paid.

Any thoughts would be great.

Thanks Matthew

They are currently trying to claim HB as in tempoary accomodation.  However we noted that the Polish benefit was a lot less than ESA and wondered if we could claim the difference without the claimant losing the polish IB

thanks