Terms & Conditions

[ShonaH]

A colleague of mine has come to me with the following question, which was raised from another Local Authority as a matter of procedure which they are adhering too from advice from someone in The Adelphi.

Q. When an EEA National has been working for less than 12 months and stops working, then is not entitled to JSA, etc then we should automatically allow them to apply for HB/CTB of the grounds of Self Sufficiency.

Answers and points of view much appreciated!!!! 🙂

[lord smeagol]

I dont think self-sufficiency is really the issue here as I think it is clear that the person is not self-sufficient. As soon as they made a claim for benefit they no longer became self-sufficient. This loses them their right to reside (because they are not working) and their right to claim benefit.

In my view the issue you’re really dealing with is unreasonable burden. There is a quote from Ursula Brennan that I’ve pulled from another thread which you may find helpful.

Quote:
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

Regards

Mike Cannon

[Anonymous]

That contribution from Ursula Brennan had me wondering. It is completely at odds with the Guidance Manual:

[url]http://www.dwp.gov.uk/housingbenefit/manuals/hbgm/parts/ptc_07c.asp#a1[/url]

That extract suggests that self-sufficiency is a social security decision, and it also suggests that saying “you only qualify for benefit as long as you don’t claim” is a crass over-simplification.

If what Ursula says is true, the right to reside test is in fact completely redundant because anyone who would pass it is exempt from the HRT in any case – it just wouldn’t add any value. I am inclined to think it must be there for a reason and so I feel more confident in following the Guidance Manual for the time being.

To turn to the claimant that Shona asked about, I think it depends whether they are an A8 or EEA16/A2 national. If EEA16/A2, it is quite possible that they retain their status as a worker during any period of unemployment – even if they had been employed for less than a year, as long as they are signing on and have a chance of finding work they can keep their status. In that case, they would be exempt from the HRT.

If they have not got retained status, then they would only have a R2R that satisfies the HB requirements if they are self-sufficient … that takes you back to the conflicting advice from Ursula and the Guidance Manual.

If an A8 national, then ceasing work after less than 12 months is more simple: they cannot retain their status and theior only hope is to be self-suffcient … back to Ursula and the GM

[lord smeagol]

oops….somehow managed to read EEA national as A8 national 😳

Guess I shouldn’t post when it’s getting close to the time when I will be ‘running’ out of the door

[ShonaH]

Sorry, I should have said that it was an A8 National from Poland.

[Anonymous]

going to back to the medical insurance ie self sufficiency – I did not
realise this and have done a load of training this week with this bit missing.

Can someone confirm if this is for Students only (EEA16,A2)???

🙁

[Anonymous]

My understanding is that both students and self-sufficient people from the whole of the EEA plus Switzerland have the right to reside in the UK provided they satisfy the “burden” conditions. This includes the A8. The only restrictions on A8 nationals are those affecting workers and non-self-sufficient work seekers.

Reg 4 of the Immigration (European Economic Area) Regulations 2006 contains the following definitions:

[i:50f6d7e7f2](c) “self-sufficient person” means a person who has—

(i) sufficient resources not to become a burden on the social assistance system of the United Kingdom during his period of residence; and

(ii) comprehensive sickness insurance cover in the United Kingdom;

(d) “student” means a person who—

… (ii) has comprehensive sickness insurance cover in the United Kingdom; and

(iii) assures the Secretary of State, by means of a declaration, or by such equivalent means as the person may choose, that he has sufficient resources not to become a burden on the social assistance system of the United Kingdom during his period of residence.[/i:50f6d7e7f2]

There is a subtle difference in the “burden” requirements for self-sufficient people on the one hand and students on the other: the way I read it, a student does not seem to have a continuing duty to stay off benefits. As long as they give an “assurance” up front, they are OK. That might explain why the DWP guidance is so lenient to students.

I am still intrigued by Ursula Brennan’s “only qualify as long as you don’t claim” advice. Has anyone got any experience of the line Tribunals are taking on this?

[Author]

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