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Refusal of CB - no right to reside

CDV Adviser
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Nestor Financial Group Ltd

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As I don’t deal with immigration, can someone please help me a question on Child Benefit? Timeline as follows:

30th April 2014 - Husband arrived in the UK from Romania.
May 2014 – Husband started work full time following allocation of a National Insurance Number.
October 2014 – Wife arrived in the UK.
5th November 2015 – Husband finished work following an accident.
December 2015 – Wife was allocated a National Insurance number.
March 2016 – Husband applied for Personal Independence Payment. This was awarded in April 2016.
April 2016 – Wife made a successful application for Carer’s Allowance.
23rd June 2016 – Children arrive in the UK.
September 2016 – Children placed into school. Wife applied for CB. Refused as failed HRT.
December 2016 - MR - Decision upheld
March 2017 - CB reclaimed and refused.
July 2017 - MR - Decision upheld.

Husband applied several times for ESA but was refused.
Applied for UC March 2019 - Refused as failed HRT.
March 2020 - Appeal successful, UC put into payment from March 2019.
They applied for settled status in 2019 which was granted.

Would the client have had any entitlement to CB in 2016/17?

HB Anorak
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Benefits consultant/trainer - hbanorak.co.uk, East London

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Was it an industrial accident?
What is/was the prognosis: permanently (or indefinitely) unable to work, or has he/will he become fit for work again?

If it was an industrial accident, and if there was no prospect of him recovering the ability to do effective and genuine work again, he would have had a permanent right to reside and any family members (including the wife claiming ChB) would have a right to reside on the back of that.

If the incapacity is not permanent, he would have retained his right to reside as a worker for as long as he remained temporarily incapacitated, and his wife in turn would have had a right to reside on the back of that.  In that case, it doesn’t matter what kind of accident it was.

So the only two things that would prevent her from having a right to reside for the purpose of her ChB claim would be:

- it wasn’t an industrial accident and the incapacity was permanent.  At the time of the accident, he had not lived in the UK for the two-year qualifying period to get a permanent right of residence.  Might be possible to argue that incapacity was temporary to start with and only became permanent after the two-year threshold was reached, but if you are looking to re-open ChB at this distance in time you need an any-time ground for revision, most obviously official error - so introducing new factual evidence at this stage won’t help to establish that ground.  OR

- the incapacity was not permanent and he had recovered by the time of the ChB claims, but had not returned to economic activity.  Doesn’t seem very likely from your account of the facts.

Getting decisions up to five years old revised is going to be the difficult bit, irrespective of the merits of the case.  You need to show that the ChB decision maker had sufficient evidence to deduce that a R2R existed, or failed to make enquiries that were obvious and would have elicited the necessary further info.

CDV Adviser
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Nestor Financial Group Ltd

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Thank you for such great advice.

I’ve just been informed that it was an industrial accident and he is never likely to work again. He is currently on UC with LCWWRA. I will find out if they ever claimed IIDB.

Elliot Kent
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Shelter

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I will just add that if you are going to be challenging the old refusals of ChB, you may as well challenge the old refusals of ESA too. The difficulty will perhaps be less in proving that the husband had a right to reside at the relevant times and more in establishing a basis for re-opening the old decision making.