habitual residence

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    If DWP refused IS as they consider the claimant not to be habitually resident are we bound by this decision or can we make our own?


    You are not bound by the decision and you must make your own.

    If you are inclined to refuse the HB claim and the claimant appeals, it is sensible case management for the Tribunal or Lower-tier wotsit to hear both HB and IS appeals together, but other than that there is nothing that requires the same view to be taken by both LA and DWP.

    If it’s the other way round (DWP has allowed the IS claim despite your misgivings about habitual residence) there is a passort effect in HB Reg 10(3B), which means you have to follow suit.


    EEA national arrived in the UK October 2007, Higher education student from October 2007, withdrew after 2 months then self employed for approx 6 months (didn’t actually make a penny).

    We made the claim for HB/CTB ineligible then discovered the claimant had claimed IS June 2008 and was awarded IS from June 2008. IS decision was after our ineligible decision.

    We contacted the DWP who stated there was no record of a HRT decision and they have now referred the case to a specialist DWP team in Wick to look at the HRT.

    Should we revise our ineligible decision in light of the IS decision even though the DWP may have overlooked the HRT when awarding IS?


    We have been getting similar decisions from our Local Office, see the following link:


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