EEA national and carers allowance

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  • #38792
    karen501
    Participant

    Long complex story but will keep it short
    EEA national claiming permanent right to reside as been here over 5 years, saying self sufficient student. Has been living with his ex partner and children, claiming carers allowance for looking after ex partner, was on her claim as a non dep. Now vacated and claiming alone, still getting carers allowance.

    We say not self sufficient for 5 years as claimed carers allowance, law centre say claiming carers allowance is not a burden on the state, anyone got any views or guidance/caselaw ? Thanks

    #109678
    Kay_Tade
    Participant

    Carers allowance is alo subject to the R2R and HRT conditions. I suspect carers allowance was awarded based on him being an EEA family member[Could be extended family member]. Do you have any idea on what basis CA was awarded?

    #109723
    Anonymous
    Guest

    No R2R test for Carers Allowance – only requirement for EEA nationals is actual residence and presence in the UK. So we cannot conclude anything from the fact that CA was awarded.

    I am aware of people using the argument that entitlement to non-means-tested benefits can be taken into account when considering whether a person has sufficient resources, but I am only aware of that argument succeeding in relation to contributory benefits (especially when exported to the UK under the “competent state” co-ordination rules). In any case I cannot see how CA on its own can be sufficient resources to avoid being a burden as it isn’t very much money. And this argument also only works if the person also has comprehensive sickness cover. However, if the ex-partner and other household members between them had enough income to get by, and subject to the sickness insurance requirement, it is possible that the claimant has lived for five years as a self-sufficient person and/or student and now has a permanent right of residence. Do you know more about the resources of the entire household where the claimant was living?

    One further question that could turn out to be crucial as well: are/were they married, and is she also an EEA national? If so the claimant would have the right to reside as the spouse of an EEA national as long as she had such a right – that would involve looking more into her circumstances over the five years.

    #109725
    Kay_Tade
    Participant

    [quote=Peter Barker]No R2R test for Carers Allowance – only requirement for EEA nationals is actual residence and presence in the UK. So we cannot conclude anything from the fact that CA was awarded.
    [/quote]

    Hi Peter, not quite sure I follow, agree a CA award in itself is no conclusion[Hence the question I Posed] but residence and presence in the UK is required for an EEA. Is residence and presence not R2R in itself?

    #109726
    Anonymous
    Guest

    No – just being here is enough. You could be an economically inactive EEA national,or have gaps in your economic activity history that would mean you failed the R2R test for Child Benefit and means-tested benefits, but youn would still pass the residence test for CA.

    #109729
    Kay_Tade
    Participant

    Are you saying an EEA would still be able to claim CA without exercising treaty rights and just being present? 6 months out of 12?

    #109732
    Anonymous
    Guest

    Exactly

    #109734
    Kay_Tade
    Participant

    Hmm, one to ponder.

    Peter what I can’t get out of my head is the fact that to be ordinarily resident in GB, an EEA or anyone else for that matter, needs to be in a settled state and should be seen to be making a home. Does that not mean exercising EU rights?

    #109736
    Anonymous
    Guest

    Well lets use an example. The claimant worked for three years then left the job market to have a baby. She is not realistically looking for work any more. She will now fail the R2R test for means-tested benefits: this is the classic IS rejection route. But if she also cares for a disabled person on DLA, there is nothing to stop her from getting CA because she satisfies the residence requirements for that benefit.

    #109739
    Kay_Tade
    Participant

    OK, with you now.

    #109742
    karen501
    Participant

    Hi his ex partner is a British citizen but lived out of the UK for many years in Nigeria and Holland, they have two school age children and one over 18. She has responsibility for the children. They arrived in UK in 2005, but she did not declare him or the eldest son as living with her until 2008 (tho they have been there all the time). She has claimed Incapacity (Income Support) since she came to UK, so has recd max HB and CTB, so he has had no housing costs. CAB say he has medical insurance which I am going to request proof of, also his student status declaration is based on doing loads of short courses including open university since 2005. Before I started to query his case further I wanted to make sure I could not just use the “not self sufficient” as receiving carers allowance as my decision, as pointless querying further if so, but as you say Peter its not a lot of income. He apparently came here with 20k, Ive not had one where we have to make a decision if they have permanent right to reside after 5 years as usually use DWP guidance to say we cannot make that decision and they must go to the Home office, but I understand(from cpag)that LA’s applying that could have their decisions classed as illegal. Can I ask him for his bank statements for the last 5 years (seems excessive) but how else can he show he has been self sufficient !

    #109743
    karen501
    Participant

    Forgot to add no evidence they have been married and children have Dutch passports

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