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Is there R2R, DWP say no, and I can’t find rsaon to dispute

 

sue c
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R2R …Have tried to think of all ways out but can’t come up with R2R solution.
Client Norwegian, married in 1990 to British national, separated 1994 , decree nidi 1996, decree absolute 1997 …they spent some of those years abroad outside the EU in the US, intending to come back, butno 5 year period in UK.
After separation client awarded HB/CTB and brought up their daughter with CTC and CB, possible IS. She did not work.
Daughter reached college age and moved out to live with father. Client had never worked.
Client gave notice on property and moved to this area claiming HB/CTR/CTC all of which awarded. [Complex issues over amount but not relevant to question].
Client did bit of work…a few months employment….then tiny erratic gardening self employment for a short period but hardly genuine and effective, became sick several times so couldn’t effectively attempt old self employment and became very depressed: claimed ESA. Turned down for ESA as having no R2R. 
DWP went ahead with medical but she failed on point (probably wrong decision but with no R2R no point in yet pursuing MR etc
Only R2R route I could think of was continuous HB from May 2004….but de minimis break of a few days over the period she ended her old claim, and the start of her new tenancy and claim. The courts cases seem very strict now where de minimis issues treating the law as absolute, de minimise arguments not being accepted…although could try to argue this.
Client claimed PIP…didn’t meet qualifying terms. MR possible.
Has anyone any suggestions over R2R…and if no R2R does she qualify for HB/CTR at all….or can LA making its own decision. She is thinking of moving as current property over LHA rate and this could alert authorities.
Any help gratefully received with regard to gaining R2R and in confirming ongoing HB entitlement particularly if she has to make a new claim on changing property again.

 

     
davidsmith
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How has she been supporting herself for the last 10 years? Does she only have 1 child?

     
ClairemHodgson
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not assisted by Norway not being a member of the EU, only of the EEA (although i gather there are the same freedom of movement rights).

i should think a referral to an immigration practitioner

my other thought was, had she not built up some rights whilst her daughter was living with her and at school?

but, immigration lawyer…..

     
1964
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Claire’s point about Norway not being part of the EU was exactly what I was about to post. I just wonder if she was granted some form of indefinite leave to remain at the time of her marriage (or shortly afterwards)?

I think she needs specialist immigration advice.

     
HB Anorak
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You say she did a few months’ employment and is currently getting CTC, which suggests child in education ... that ought to do it.

Also a possible argument on May 2004 transitional protection option:

- HB is never awarded for less than a whole Monday to Sunday week.  Sometimes the eligible rent for a week is less than a full week’s rent, especially when moving in and (especially before 2006) when moving out.  Sounds like your client moved between LA areas more recently than 2006, in which case a new HB claim was certainly needed, but if the last day at the old place and the first day at the new place fell in the same two-week Monday-to-Sunday period you could argue continuous HB

Can you give some specific dates of occupation, liability and HB claims at current and previous address? It might be enough to enable ESA to be claimed.

     
Paul_Treloar_AgeUK
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Why is she receiving CTC/CHB if her child lives with the father?

     
sue c
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In answer to various queries (to all of which thank you):
only 1 child

can’t build up your own rights of residence solely as carer of a child is what i understand: it was when child with her that she was getting CB/CTC: stopped for her when daughter left home, see below

she can’t recall anything happening around time of marriage…ex was working in Norway where they met, they lived here briefly then went to US for couple of years before coming back/separating: she doesn’t think there was any sort of legalisation, only the marriage. On leaving with him she cut her ties with Norway and doesnt get on with her family there

client’s “child” moved away at student age to make main home with father: child related benefit for client ended at that stage

client has been living on occasional voluntary donations from her ex (and thin air and food banks,) which she planned to repay but has not managed to, and prior to more recently, her HB, with her ex paying the rent directly to the landlord with her again intending to repay in due course (but that is not the issue in question in this post, as being dealt with as a separate matter, complicated,  and council fully in picture; we have already got a large write off of alleged overpayment)

unfortunately there was a gap of a few days between her tenancy ending and her new tenancy officially starting, so it is not just a question of payment days

Not an easy one….any further comments/advice appreciated, but immigration expert may well have to be the answer

     
HB Anorak
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It might not matter about the gap between tenancies.  Say these events were happening right now.  Lets say the last day of tenancy 1 is Tuesday 19th July.  The claimant is entitled to HB for w/b 18 July, and these days would normally have a full week’s eligible rent (exception for rent charged daily).  Now, say the new tenancy doesn’t start until Wednesday 27 July.  Not a problem: if HB claimed and claimant occupies during w/b 25 July she is entitled to HB for w/b 25 July. The eligible rent will not be a full week’s amount, but it is a weekly award of HB nevertheless: you cannot be entitled to HB for a period of less than one benefit week, that is the unsplittable HB atom.

So in our example the claimant remains continuously entitled to HB and retains transitional protection.

This is an argument that I developed for a UT appeal that I won - I can let you have the analysis if it would help.  The subject of that appeal was something different (number of days’ HB in the first week of a tenancy) but the whole benefit week analysis is the same.

     
past caring
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HB - I can see where you are coming from and in many circumstances it would be a useful/sound argument - but I can see a potential fly in the ointment in this case….

For transitional protection to work, the claimant must be continuously entitled to at least one of HB/IS/JSA/ESA - so, for example, if ESA ends and a claimant enters low-paid work such that they retain entitlement to HB, they have transitional protection should that work end for whatever reason and they can then claim IS/JSA/ESA as appropriate.

But as I understand it, HB was the only benefit claimed in this case? And wasn’t it the case that the first tenancy ended in order for the claimant to move to a different part of the country and a new LA? - i.e. no possibility of the move being treated as a change of circs for HB as can happen when a tenant moves address/tenancy within the same LA.

So aren’t we looking at a point where the HB claim on the first tenancy ended - and where at that same point there was no IS/JSA/ESA claim in payment - so that transitional protection was lost? i.e. tenant could only be entitled to HB on the new claim if she actually had transitional protection at that point - but as HB on the old claim had ended and there was no other benefit in payment, there’s no TP?

Bit of a devil’s advocate argument, but it’s what I’d be arguing if I were repping the other side….

     
sue c
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Just my devil’s advocate argument. Have asked HB Anorak for anaysis of his arguments….sound interesting.

     
HB Anorak
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The savings provision in the Reg 6 of the 2004 amendment regs says transitional protection continues “until the date on which entitlement to a specified benefit ceases”.  I am suggesting that the effect of the second HB claim is to make it as if HB never ceased.  I think it’s worth a try.  Sue C - analysis on its way to you today.

     
sue c
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HB Anorak, it took a long while to get at all the facts, and get local HB corrected, but your argument was incredibly helpful and we succeeded at FtTribunal with client being given right to reside on basis of unbroken HB since before relevant date. So ESA went into payment with large backdate. No appeal by DWP. So a huge thank you for putting me onto the obscure route to success.. Sue

     
HB Anorak
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Yay! Go me!

     
ClairemHodgson
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sue c - 13 July 2017 08:42 PM

HB Anorak, it took a long while to get at all the facts, and get local HB corrected, but your argument was incredibly helpful and we succeeded at FtTribunal with client being given right to reside on basis of unbroken HB since before relevant date. So ESA went into payment with large backdate. No appeal by DWP. So a huge thank you for putting me onto the obscure route to success.. Sue

nice one

having said that (and re-read the entire thread) i still think it would be worth your client getting immigration advice, to avoid any future issues (particularly with Brexit coming - bad enough it’s going to be for EU citizens, but as pointed out above Norway isn’t EU, it’s only EEA….

     
sue c
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Yes, we are aware that we need to now to try to secure status, in light of Brexit, and Norway issues, but thanks for noting! Sue