Derivative rights

I am uncertain whether a person with a derivative right to reside {on the basis that they are the carer of a British child} can claim any of the following benefits:

• working tax credit;
• attendance allowance;
• personal independence payment;
• carer’s allowance;
• disability living allowance (for children under age of 16)

Could someone clarify this.-

Statutory instruments 2612 & 2587 of 2012 do not seem to address this, but I have a feeling that I missed something…...

Julian

Thank you Tony

I have considered chapter 70 of the handbook and I can’t see anything that would bar a person with Zambrano-type derivative right from claiming the following (other than if they fail to meet the presence, habitual residence and past presence tests, which apply across board) from claiming the following: AA, PIP, CA, DLA.  (so WTC / UC drops out from the list)

Is that right?

Yours

I think you are right.

As I understand it s115 of the Immigration and Asylum Act 1999 would not exclude Zambrano carers from any benefits as a PSIC, because although they are non-EEA nationals they do not require leave to enter/remain in the UK: their right to be here arises under EU law and not under domestic visa arrangements.

Therefore the only thing that could stop them from claiming other benefits would be:

- failure to satisfy factual residence requirements (i.e. not habitually/ordinarily residenmt), or
- their right to reside being specifically excluded as a qualifying R2R for those benefits which have a R2R requirement.  It appears that the benefits to which such an exclusion applies are HB, UC, Child Benefit, Tax Credits, JSA(ib), ESA(ir), IS and SPC (and CTR as well even though it isn’t a true benefit).

Therefore as far as I can see there is nothing to prevent a Zambrano carer from getting CA or DLA/PIP/AA provided they satisfy the factual residence requirements.