Terms & Conditions

[Darren Broughton]

Has anyone had chance to read and fully digest this yet?

Has anything actually changed?

The way I read it is that although the new EC directive confers automatic Right to Reside for the first 3 months, this is not the same as Right to Reside for HB/CTB purposes and as such, we should apply the same test as we did pre 30th April 2006.

Is this right?

[Anonymous]

I’ve been trying. 🙁

In addition to the 3 months right to reside there is

Civil partners are now included in definition of family…

“Economic inactives” now expected to have comprehensive medical insurance as part of demonstrating self sufficiency…

Definition of Worker gets a slight rehash – Paras 38 39 40

ECSMA countries now include Coatia – but Romania & Ukraine no longer get a mention

Any more for any more?

[RobBox]

Is the change arond para 44 / 45 in that Work seekers can claim/receive JSA(IB) for at least the first 6 months now and so be passported for HB/CTB?

[Anonymous]

Para 44/45 Yes – that’s how I read it.

I’m not sure about para 45 though. The end bit could be read to mean that there is absolutely no chance of HB unless on JSA(IB).
“Their right to reside as a work seeker is a non-qualifying right to reside when claiming HB or CTB only”.
If so this means that work seekers are very simple for PFA:

[b:bce36bb743]»[/b:bce36bb743] If on JSA(IB) then no need for HRT test so a definate “YES”
[b:bce36bb743]»[/b:bce36bb743] If not on JSA(IB) then no right to reside for HB so a definate “NO”

[Although could still be in a HB claim as part of a couple with a non-PFA claimant]

[Anonymous]

Was wondering about the self sufficiency test where “inactives” (e.g. lone parents, pensioners) are now expected to have medical insurance.

“They must show that they have sufficient resources and medical insurance to avoid becoming a burden on the UK social assistance system during their period of residence.”

Q. Does this mean 5 star BUPA cover or similar – or is this the equivalent of an E111 form where the country of origin picks up the tab for medical bills under that nation’s state health arrangements.

Any thoughts?

[mary]

Re the requirement regarding medical insurance – the medical isnsurance test has always been there but the relevant cases law e.g. (Case C-413/99 Baumbast v Secretary of State for the Home Department established that the conditions placed on those wishing to exercise the right of residence must be applied in a manner which is proportionate, so that for example failure to provide evidence of insurance may not result in the automatic refusal of the host Member State to recognise the right of residence

[Anonymous]

Thanks for that Mary. Quite agree that each case must be decided on its merits. I was just interested in what kind of medical insurance was referred to.

I sent an email to Ursula Brennan at the DWP (contact details given on A9-2006) and she feels that it is the “proper” private healthcare insurance – not just E111 or EHIC card.

I find this [b:a14e83093f]very [/b:a14e83093f]surprising. To restrict means tested benefits to those who have adequate medical insurance is a bit like having a soup kitchen just for Platinum Barclaycard holders.

As Mary points out it may not be a definate restriction as such – but its there in the guidance and that’s bound to have an impact on decision making.

[Anonymous]

Hi all
What a wordy circular to say nothing much! Just to ensure Iwas not losing the plot I confirmed my understanding of the workseeker rules with DWP.
Thought the reply may be use to some.

[quote:8705bc058d]You are correct a work seeker who claims HB/CTB must already be in receipt of JSA(IB) in order to have a right to reside for HB purposes i.e. if they are receiving JSA(IB) there is no need to apply the HRT (unless you chose to apply the test again). The local Jobcentre Plus office will have looked at actual habitual residence at the same time as the right to reside and this part hasn’t changed, a work seeker is still required to satisfy both parts of the HRT.

However, a work seeker who decides that they don’t want to claim JSA(IB) or who imports their EEA benefit for 3 months while they look for work, will not have a right to reside and will not be eligible for HB / CTB.

The only other section of the directive which gives people a right to reside is the right to be in the UK for the first 3 months of residence without the requirement to be self-sufficient or to be exercising any Treaty rights. There is nothing to stop someone looking for work during this initial 3 months (Article 6 of Directive 2004/38/EC but we have included regulations which exclude people from all income related benefits during this first 3 months if their only right is under Article 6 of the directive, we are allowed to do this under the new EC directive[/quote:8705bc058d]

[Anonymous]

I would take issue with the DWP comment above that a Local Authority could ‘choose to apply the test again’ to someone on JSA(IB). If you are on JSA(IB) you are not a PFA for HB/CTB – end of story!

[Anonymous]

Jan,

A decision by the DWP that a person is not a PFA may be adopted by the LA but the DWP decision is not binding on the LA.

I know that this is contrary to CPAG but it was covered in CH/1002/2004.

[Anonymous]

I think Jan is right – being on JSA(ib) is a status that passports the claimant to exemption from the habitual residence test by virtue of Reg 10(3B)(k) as amended from 30 April. It’s the same as the Menear effect with means-testing – no matter what the Council thinks about it, if the considered opinion of the DWP is that a person qualifies for JSA(ib) then both the means test and the habitual residence test are off limits for the LA.

Of course, if it’s the other way round the DWP decision is not binding – someone can be refused JSA(ib) as a PFA but the LA is free to take a more generous view

[Anonymous]

Regarding work-seekers who have been refused JSA(IB) as a PFA, has the position not changed from 30 April? Although work-seekers have a right to reside under 2004/38/EC (transposed into UK law by SI 2006/1003), for HB/CTB purposes this no longer counts for the purposes of satisfying the HRT right to reside test – see Reg 10(3A)(b). So work-seekers who have been refused JSA(IB) are a bit stuffed – aren’t they?

[Anonymous]

Re: workseekers

Yes I agree – by changing workseeker’s right to reside from 30th April, workseekers refused JSA(IB) are stuffed now.

[Anonymous]

Yes I agree – in the specific case of a workseeker refused JSA(ib) during the first three months, it would be extremely difficult for the LA to conclude that they satisfied the HRT. But it would still be the LA’s shout – there’s a formal decision to be made. Whereas in the reverse situation (JSA(ib) awarded) it’s out of the LA’s hands.

[Anonymous]

Further to this, one of the managers e-mailed Ursula Brennan today regarding the self-sufficiency test today as he was carrying out the HRT on a lone parent student who had come over from Denmark last week and wanted to claim HB.

He had a query regardig the medical insurance, as she had received legal advice saying she would only need comprehensive medical insurance for the first 6 months, which the Danish NHS would provide for her anyway.

The reply didn’t really answer the question but seemed to muddy the water.

[quote:deb8f3eb7d]Self-sufficiency is a Home Office decision & you can’t decide if she is self-sufficient. If someone applies for benefit then they are no longer considered to be ‘self-sufficient’.

The relevant regulation for your claimant is Article 7 (c) of directive 2004/38/EC (right of residence for more than 3 months for students) which came into force on 30/04/06. It refers to having sufficient resources to avoid becoming a burden on the social assistance system of the host member state and that the person must have comprehensive medical insurance cover in the host member state.

The previous EC regulation (93/96/EEC) concerning students also required people to have comprehensive medical insurance & be self-sufficient when studying in another member state. The right of residence under this regulation was for the duration of the course or 1 year where the course lasts longer; there was nothing in it about not requiring insurance if people planned to remain longer than 6 months.

Possibly she is thinking about when her studies are completed and she becomes a work seeker, then she won’t need medical insurance as her right to reside will be under Article 39 of the EC Treaty.

Ursula

Ursula Brennan

People from Abroad Team

Benefit Reform Division

WWEG

DWP

Area 5

Level 2

The Adelphi

London

WC2N 6HT

Tel: 020 796 28358

Fax: 020 7962 8144

Email: Ursula.A.Brennan@dwp.gsi.gov.uk

[/quote:deb8f3eb7d]

This seems to imply that anybody who applies for benefit automatically fails the self-sufficiency test.

Very curious but if that’s what the DWP say that we’ll have to follow it.

[Author]

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