UC/CHB right to reside

Hi all,

Trying to get my head around this one. I am trying to deal with this one for another adviser. Claimant has right to reside and is receiving Universal Credit (presumably on the basis that she was a worker and now is temporarily unable to work) but she has been refused Child Benefit. I have been given the following information:

“She has worker status but I was told by a lady from HMRC that as a ‘pre settled’ citizen, to be eligible to claim child benefit she would:-

1. Have had to make contributions in the 3 months prior to claiming child benefit.
2. Live with a partner who is making contributions if pre settled.
3. Live with a partner with settled status
4. Live with a partner who is a British Citizen
5. Have a Settled Status herself.

Due to this lady not working since her son was born, and suffering abuse from her partner so having to flee the home with her child, she didn’t apply for Child Benefit until he was over 12 months old.  And because she hadn’t worked since giving birth, it meant she wasn’t eligible unless she had settled status.”

Any ideas? If she has a right to reside for UC doesn’t this right to reside also enable her to get CHB too?

Thanks in advance.

The lady from HMRC has come up with a rather peculiar list there, but I don’t see that we need to be concerned with it. Equally whether UC think that your client has a right to reside does not really count for anything.

What your case seems primarily concerned with is whether or not your client is able to retain her status as a worker - i.e. by being able to chain together some combination of St Prix rights, retention through temporary incapacity and/or jobseeking etc. back to when she was last in work.

She must have already done that to have a right to reside, and to continue to have a right to reside, for UC though?

UC will be applying the same tests, but their decision doesn’t itself give her a right to reside and it doesn’t bind ChB. You are still going to need to explain from the ground up why she has a right to reside.

Hi Lee.

I would be really grateful if you could get in touch with CPAG about this case- apart from whether this client has a right to reside in any event, I think it might be arguable now that the right to reside test in respect of child benefit is unlawful - following C-411/20 S v Familienkasse Niedersachsen-Bremen der Bundesagentur für Arbeit at paras 52-55. I think it arguable that a person with PSS can rely on article 4 883/2004- this is a tricky argument as one has to navigate around C-308/14 Commission v UK but one worth making.

CPAG would be happy to advise on this - get in touch via direct message here or email the Upper Tribunal project.

Martin