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EEA migrant benefit claim

mattcostinmattcostin Member Posts: 1
I am working with a client who has been refused ESA on the basis that he does not have the right to reside in the UK.
He is a 63 year old Dutch national who arrived in the UK in March 2003 with his wife and 4 children.
Between June 2003 and 2006 he was employed as an outreach worker for a charity called 'caring outreach' He was assisted to find this job by the Jobcentre and was paid cash in hand.  It is unclear whether his employer paid NI contributions.
On 2nd November 2004 the family entered into a secure tenancy agreeement with Newham Council.  His wife remains resident of this address and he remains on the tenancy.
From September 2006 JSA was claimed for the family in his wifes name which was later changed to Income Support and at the same time he workerd for another charity on a voluntary basis.
Due to mental and physical health conditions he began claiming ESA from 03/03/2011.  At the same time due to family breakdown he moved out of the family home and was hopitalised at Newham general hospital due to his deteriating mental health.  In October 2012 he rejoined the family home and his wife's ESA claim and his were merged.  Between 2012 and 2015 they had a joint ESA claim.
In April 2015 he was removed from the family home to to domestic issues and spent two and a half months in Goodmayes hospital due to his mental health.   A new individual claim was made for ESA on 27/04/15 but this was refused on the basis that he had no right to reside in the UK.  As he was moving around at this time, which included a short time in prison ( he breached a restraining order) and a time being street homeless he did not receive notification of a refusal and this information has only come to light recently when requested from the Jobcentre.  During the period April 2015 to November 2015 he has got various bits of paperwork which suggest he was asked to come in for medical assessments.

On 18/12/15 a claim for JSA was made due to the delay in having his ESA claim resolved.  This was paid for three months but was cancelled when it was confirmed that he did not have a genuine chance of finding work.  In fairness he is no position to work anyway due to his health conditions. On making this decision consideration as to whether he had aquired a permanent right to reside was given but this was dismissed as it was not considered that he had resided as a qualified person continiuosly since his arrival 13 years ago

In December 2015 he was referred to us after a short period of street homelessness and we found him a private tenancy which begun 02/12/15.  A claim for HB was made which was initially paid during the period of his JSA claim.  He had a face to face interview with the council and they had concluded that he was habitually resident.  His claim continued until the JSA claim ceased.  At this time we assisted him to have it reinstated on a 'nil income' basis given that he was living off money borrowed.  It was also confirmed that his ESA claim was being pursued.  His HB was again suspended a couple of months ago following a HB review but again we were able to have this reinstated based on an income of borrowed money and food banks.

Given that the notification of the refusal to pay ESA in 2015 was never received a later reconsideration of the decision was made in May 2016.  As there had not been a reply to this a further request was made in August.  A new claim for ESA has also been made to which he is yet to receive a response.

The claimant does not seem to be getting anywhere with the Jobcentre and I'd be grateful if based on the information provided it is felt that there may be further avenues of appeal here.  To start with given that he has spent 13 continuous years in the UK  could permanent right to reside be considered.   Picking through the information I have it seems the following is correct.

06/2003 -  09/2006   Full time cash in hand work.  Unfortunately this can't be evidenced.
09/2006 -  02/2011  Income support as a family in his wifes name
03/2011 - 09/2012   ESA in his sole name
10/2012 - 03/2015   ESA with his wife
04/2015 - 12/2015   Claims made but not paid - failed RTR
12/2015 - 03/2016   JSA & HB
03/2016 - date         HB, begging and borrowing.

Unfortunatly I am not sure if these dates are exactly correct but it what has been pieced together from Jobcentre evidence and the clients knowledge.

If this isn't possible right to reside by link to his children may be a possibility.  He has four children aged between 33 and 21 years who are all Dutch nationals.  The eldest have been working for over 5 years and all are currently employed.

The problem here is the estrangement from his children at present so evidencing this may be difficult but he has informed me that he will be able at least one of their national insurance.

I will be meeting this client again next week so would be grateful for your thoughts on this matter.


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  • BenefitsTrainingCoBenefitsTrainingCo Member Posts: 2,692 Pioneering

    Hello Matt

    To be awarded benefits your client must show that he is exempt from or satisfies the Habitual Residency test.

    You have immediately asked as a resident in the UK for 13 years would this qualify him to a permanent right of residency.  In short, the answer is no, as he must be legally resident for 5 years to have a permanent right of residency.  This means for 5 years he was for example, a worker (or retained this status), a work seeker, or a family member of a worker, work seeker.

    Your chronology however throws up a lot of questions, as it appears that the DWP have previously accepted that your client (or his wife) have had a right to reside as otherwise Income Support and ESA would not have been awarded.  

    There is a lot of piecing together to do, but it seems he needs the quickest route possible to claim benefits. You have stated that he is estranged from his children, is your client also estranged from his wife? As if she is currently working he can then also be classed as a worker, and thus entitled to benefits.  If this is not an option then it looks like it may be trying to piece together his case, and taking your chronology:

    06/2003 -  09/2006   Full time cash in hand work.   

    You can write to HMRC for a breakdown of his NI conts.

    National Insurance contributions and Employers Office 
    HM Revenue and Customs 
    BX9 1AN 

    TEL: 0300 200 3500.

    It maybe worth contacting HMRC  to ensure that the above is still the correct address, as contact addresses always seem to change.

    For the following periods:

    09/2006 -  02/2011  Income support as a family in his wife’s name.

    03/2011 - 09/2012   ESA in his sole name

    10/2012 - 03/2015   ESA with his wife 

    It is very unclear on what basis your client or his wife was habitually resident and thus entitled to Income Support/ESA.  Do the DWP have a record of their habitual residency status at this time?  It will also be useful to know on what basis the family claimed Income Support in 2006 e.g. as a career, unable to work.

    In regard to your client’s children, he would have to show dependency and if he is estranged then this is a weak case.

    I hope the above throws some light on your case.





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