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Chen Right to Reside

10 July 2024, 01:49 pm

AYoung
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Newcastle Council Welfare Rights Service

Total Posts: 36

Joined: 6 June 2019

Hi all, I might be clutching at straws, but wondered if anybody has any pointers on this. #

I have been supporting a client who was initially awarded UC in August 2021, however in Feb 2023, they contacted her to advise that UC had been incorrectly awarded UC, and her award was terminated. No overpayment occurred. The reason for terminating the award was that she was relying on the Chen Right of residence, but that they did not believe that she met the criteria for this.

Client is a Nigerian national and has 2 dependent children, one Nigerian and one Italian. She moved here in Jan 2021 and had approx £6k in savings at that tome. She had some support from family etc and lived with them until she secured her own private tenancy. She began work on 10/08/2021 and made a successful UC claim on 15/01/2021.

We have tried to argue that Chen does apply because her Daughter can show that she is self sufficient, by relying on her mothers income from lawful employment. Since UC was stopped, she has continued to pay rent and bills etc, and has not become a burden on the state.

The appeal took place in may and was refused. The Statement of Reasons sets out a lot of the argument and I’ve attached the 1 paragraph that sets out the reason for the refusal. It simply says that there is no evidence that the family are self sufficient. Im not sure if that provides sufficient reasoning for refusing the claim, so there is the option of having is set aside. What i wanted to check is whether there is any merit in pursuing the matter. The facts are as above. The DWP say that the client was not self sufficient as she has made repeated claims for UC, all of which have been refused. which to them demonstrates that she is not self sufficient. In reality though, she has been applying for something she thought she was entitled to.

Im not sure how else we can show self sufficiency. She works, pays her bills, receives no UC etc, so isnt a burden. I know the definition of self sufficient is pretty clear, but i am just trying to see if there is another abngle we could pursue if we were able to get the decision set aside.

Many thanks

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30 July 2024, 06:06 pm #1

dizzymare
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Welfare benefits adviser - Dudley MBC

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Total Posts: 321

Joined: 18 June 2010

Im certainly not professing to be an expert in this field at all but I have just had a decision revised prior to appeal that related to a ‘Chen’ carer. Similar circumstances to yours.

Firstly, does Mom have an EUSS status? My client had pre settled status on the basis of Chen. how old are children?

In my particular case, Mom has pre-settled status but will be able to show 5 years living here in May 2025. (so we argued not unreasonable burden due to short period of time); Her child will be starting school in September 24, so derivative rights will then apply (Mom working full time). I relied on the case of Brey C-140/12.

DWP stated Mom had been here since 2013 and never claimed any benefits (she would not have come under EEA regs at that time anyway) and accepted that as daughter was starting school shortly, support would be for a short period of time, and amount was relatively small. (wasnt expecting decision to be revised really but thought it was worth a shot).

Decision revised by DWP prior to appeal and appeal lapsed. Only problem for me is that the appeal was still heard (one month after DWP lapsed appeal) and Tribunal Judge reached a different conclusion and said didnt qualify. So trying to get that quashed but im worried now DWP will take another look and it will all go pear shaped!

Not sure if this helps.

[ Edited: 30 Jul 2024 at 06:09 pm by dizzymare ]

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