EU claimant with jobseeker status and a primary carer of a child in education

Has anyone successfully challenged   refusal of HB   for an EU claimant who has jobseeker status and is a primary carer of a child in education? The claimant has no other rights .

Arguments were made to DWP by another colleague of mine about deriving rights as a primary carer (Texiera and Ibrahim)  but they have said that she must exhaust 6 months as a jobseeker before rights are considered   in accordance with Article 10 and Regulation 15A (3)  and (4 ) of Immigration (EEA ) Regs 2006.
I have found DMG Memo 2/15 which appears to state the above . Has anyone come this scenario and is it actually right?

If the refusal of HB   is challenged   directly with LA , my main concern is that they are most likely to rely on the decision made by the DWP (jobseeker status ). My understanding is that the EU claimant does fall within Regulation 15 (A)  (3) and (4)  but I have doubts when reading Regulation 10 (3)  of HB Regulations , it states that the right to reside can fall within Regulation 15 (1) but only in a case where the rights exists because the claimant satisfies the criteria in Regulation 15A (4 A).
There seems to be a problem as I cannot see it accounts for a derivative right as a primary carer . How will this be argued ?
Does anyone else agree or am I missing something ?

The flowchart in this thread might help - http://www.rightsnet.org.uk/forums/viewthread/7555/

My understanding is that if there is an alternative right to reside other than as a jobseeker then there should be no problem getting HB

Hi Daphne,

I did use the flowchat but came to a halt as it asks to determine HR .

Reg 15A is drafted in such a way that you can only rely on it if you cannot rely on an alternative right to reside under the 2006 Regs - if you have such an alternative right you are an “exempt person” who doesn’t need a derivative right under Reg 15A.  That would appear to include a jobseeker.  So for 91 days your entitlement to HB as a primary carer is suppressed by your overriding jobseeker status.

Personally I think that is over-analysing a regulation that isn’t strictly necessary in the first place because derivative rights are enjoyed directly under EU Regulations which don’t have to be transposed into national law.  Article 10 of Reg 492/2011 says the child has the right to go to school under the same conditions as a child of a host state national worker and that the host state should encourage this under the “best possible conditions”.  And the Teixeira case says the primary carer is not precluded from claiming social assistance such as HB.

So I think you can rely on your primary carer status even if you claim JSA - you need to be treated the same way as a British parent in the same circumstances

What I think this means is that the DWP view is that they are not obliged to consider an alternative right to reside until RTR as a jobseeker has been exhausted.

This does not however apply to Housing Benefit who have to make their own decision.

We have successfully argued that an EEA jobseeker has a derivative RTR as primary carer of a child in education and HB has been awarded on that basis.