HRT – reconsidering retrospectively

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  • #22813
    Anonymous
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    I’ve got a case where the claimant is Sri Lankian. She and her husband moved to France during the 90’s. Because she had been there for more than 9 years she became eligible to apply for French nationality. On 1/6/05 she was given French nationality and has a French passport. Within a month of it being issued she and her husband came to the UK and claimed HB.

    The husband only had a travel visa allowing him to leave France for 6 months, so returned to France shortly after.

    The claimant claimed IS but was disallowed because she failed their HRT. We disallowed HB on the same grounds.

    In March 06 she reclaimed saying that she is working 16 hours a week so is now entitled as an EEA worker. She’s a cleaner for a church miles away from her home and earns minimum wage. She was disallowed HB on the grounds that her work was not genuine and effective, the assesser being of the opinion that she was given a token job to enable her to get benefit.

    She has asked us to look at the decisions again, including the HRT decision, and also advised us that her partner is now back in the UK.

    I’ve asked for details on the partner (NINO, imm status etc), and think we should revisit the HRT, because the relevant assesser did not make her own decision, and just based her decision on the IS one. However, I’d like a little advice on the HRT, as it’s being done retrospectively.

    Had I been dealing with it at the time it was original considered, and known all the facts of the case, my decision would have been that she failed the HRT – she came to the UK with her partner, but he did not have permission to reside in the UK. They did not seperate, and they still regarded themselves as a couple, so until they knew that he had obtained permission to live in the UK there was no intention to stay, only that they hoped to be able to if things went their way. She has confirmed that her children couldn’t live without their father, and he couldn’t live without them, so it is reasonable to assume they would have returned to France had he not obtained permission within a certain time period.

    However, now that I know (or have been told, pending proof being provided) that he is allowed to reside in the UK until 2011, should that fact be taken into consideration when looking at the earlier period (before he had permission to reside in the UK), or should I consider the periods based on the facts of the case during the period in question?

    This is a real messy one! It’s clouded further by the fact that, although the claimant is saying she’s an EEA worker from March 06, she’s also said she’s been a full time student until the end of June 2006. Can a full time student be classed an EEA worker at the same time?!

    Obviously I need all the additional info from the claimant before I can reconsider the claim (including info about the ’employment’), but any advice would be much appreciated. I think the period should be split as:
    June 05 to March 06 – non worker, HRT applies
    March 06 to June 06 – states she’s an EEA worker, but also a full time student
    June 06 onwards – states she’s an EEA worker, but also needs to provide a NINO for the partner.

    Thanks!

    #9685
    andyrichards
    Participant

    A couple of general observation –

    You can be a student and be in remunerative work at the same time, so I see no reason why you could not be an EEA worker and a student at the same time.

    The decision that her job was not genuine and effective employment looks a little…”bold”…to me, on the bare facts as stated. I wonder what enquiries were made about the employment at the time. It does not look very much in accordance with the criteria set out in Para 20 of A9/2006.

    Personally I think that if you are reconsidering an HRT decision you would look at the situation and legislation as they were at the time. But if you found yourself having to make a first decision on HRT for a long retrospective period, I think you would have to be influenced by how things panned out in reality over time, regardless of what was stated at the time of the claim. That’s strictly my view though.

    #9686
    Anonymous
    Guest

    Well as far as I can see she’s only a worker from March, and has only recently received worker status docs from the Home Office, so the HRT will only apply from June 05 to March 06.

    I’m suspecting from her letter that the husband doesn’t have a NINO, so if that’s the case, once I establish the date he returned she’ll not be eligible until he gets one, but there is the period in between to consider. Points noted re the working decision, though again I’m waiting for more info re that. From what I can gather she’s employed by a friend to help clean some premises, though there is a caretaker who also looks after the place. I think the assesser believed the employment to be not geniuine, but a situation created to enable the claimant to portray herself as a worker to enable her to get benefit.

    #9687
    Anonymous
    Guest

    See my posting on another thread, the person does not necessarily have to have a NINO issuedto them in order to be paid benefit, only to have applied for one and given sufficient information for one to be issued

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