Permanent Right to Reside – previously paid Income Support in error

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    Debbie Wake

    I have come across two claims in the last week where the claimants are portuguese nationals who have resided in the UK since 2002. On face value they appear to have been paid Income Support since their arrival in the UK and do not appear to have worked or have had a partner who has worked.

    DWP now say that the award of Income Support may have been wrong but can’t access the case files. Both claimants have subsequently had children who were born in the UK.

    Neither claimants appear to satisfy the qualified person criteria so I’m wondering if Income Support ends, will these claimants have any rights to claim HB/CTB? One of the claimants is thinking about going to University to complicate matters

    At this point I do not know if either claimant has applied for permanent residence

    thanks for your help


    Where somneone has been continuously in receipt of at least one means-tested benefit (HB, CTB, IS, JSA, ESA or Pension Credit) since April 2004, they are not subject to the right to reside test – their only requirement is to be in fact habitually resident, which they clearly are. It doesn’t have to be the same benefit at all times – as long as any one or any combination of those benefits has been in place since 30/4/04 they are OK.

    So Income Support doesn’t need to stop, and even if it it does you would still keep HB/CTB going under the transitional rules.

    Only if there is a break in entitlement to every single one of the means-tested benefits do they become subject to the right to reside test.


    Just to add, if the DWP decide to revise the IS decision, properly, meaning the claimants have not been entitled to I/S, right from the start of the award paper trail or not, and the DWP issue a proper notification to that effect, then your claimants will be in truoble. An appeal would be another matter.

    Otherwise, I agree with PeterB.

    PS: It doesn’t mean they won’t have R2R under another guise if this happens.

    Debbie Wake

    Hi Peter

    thanks for your reply, we have a claim now where the portuguese claimant has resided in the UK since October 2003. Apart from one small trip lasting a couple of days to attend a funeral she has been in the UK continuously

    DWP have refused entitlement to Income Support even though they have paid before and are using the following Income Support Regulations

    21AA(1)and (2) of the Income Support (General)regulations 1987 and
    Regulation 6 of the Immigration( EuropeanEconomic Area) regualtions 2006

    to justify that she is not ,for the purposes of benefit only, habitually resident in the UK

    We first paid her claim 5 April 2004, can DWP apply the right to reside test in this case? We are still looking to pay her but she is without funds apart from her child benefit so we are trying to advise her regarding Income Support as she still has children under 7


    [quote=Debbie Wake]We first paid her claim 5 April 2004[/quote]

    Do you mean she has been continuously entitled to HB since 05/04/04? If not, i suspect she is not transitionally protected from the R2R test, either for Income Support or HB/ CTB purposes.

    I’m not 100% certain of the requirements for people to satisfy the permanent residence rules where they settled here prior to 2004, but i suspect she would still have had to resided here ‘legally’ for a continuous period of 5 years to satisfy the rule. She would therefore have to have been a “qualified person” (or a family member of one) as defined in Regulation 6 of the Immigration (European Economic Area) Regulations 2006 for a continuous period of 5 years to have permanent residence.

    Has she worked at all? Are the children of school age?

    Debbie Wake


    thanks for your comments, yes we have paid her from 5 April 2004 for HB/CTB , she may have worked for very short periods but not enough to have affected her entitlement to JSA and/or Income Support.

    Just can’t get my head around why DWP have made the decision they have when they have paid her Income Support before but after the r2r test came in and there is no record to say that they checked with us re HB/CTB entitlement. The matter is complicated because from 2007 she was a full time eligable student. We have paid her HB/CTB because there was never an issue before regarding her being habitually resident. She has not applied for permenant residence. She has school age kids born in the UK so we could look at this but we are vague around her worker status in the past


    After looking closely at the Social Security (Habitual Residence) Amendment Regulations 2004 (SI 1232 of that year), it appears you could interpret it in two ways: pre-May 2004 transitional protection applies separately to each individual benefit, so that a break in IS entitlement would end protection for IS without affecting protection for HB; or entitlement to any one benefit will protect entitlement to all the others as well.

    The threshold requirement in Reg 6(1)(a) is that the claimant [i]”is entitled to a specified benefit in respect of a period which includes 30th April 2004″[/i], or has a claim for one of the specified benefits backdated to 30/4/04. This has the effect of preserving the HR test in the means-tested benefits in its pre-R2R form. Reg 6(3) says the protection continues [i]”until the date on which entitlement to a specified benefit for the purposes of paragraph (1) ceases, [b]and if there is more than one such specified benefit, until the last date on which such entitlement ceases[/b]”[/i]. It’s that last bit that I am not sure about – does it mean that you could re-apply for IS while still getting HB and still be covered? I think the answer is yes, in which case your claimant should be entitled to IS now. But DWP could have taken a different view and decided that she has lost the IS transitional protection.

    A more likely explanation is that the local DWP office is completely unaware of the 2004 transitional rules at all and she will have to appeal and get it referred to the grown-ups at Wick.

    Anyway as far as HB is concerned yopu are OK to keep paying.

    (BTW if you look at an updated version of the 2004 Regs, you will find references to HB are now absent – this is because they were moved into a consolidated Schedule to the HB & CTB CP Regs in 2006, but the same rules apply).

    EDIT: should also add, my original list of benefits when I first replied to this post should not have included ESA because, of course, no-one was entitled to ESA in 2004!! Silly me. However, ESA is covered in an IS conversion case.


    We had a similar case in our authority which we took to tribunal and won! It was an A8 who on arriving in the uk managed to get Income Support – not sure why as it was clear she was not entitled (we have a lot of these where foreign nationals were granted IS on arriving in the UK, back in the day, your claim aounds similar)

    Anyway IS ended early 2010 she wasn’t working and did not qualify for JSA. she tried to say she was a self employed cleaner but only worked for one person – we argued the fact that she was infact an employed person as she worked for one person only – as she was deemed ’employed’ she needed to register her work but had not done so. She refused to register he work so we turned her HB claim down for not meeting the criteria as an A8 worker i.e. registering her work. She appealed we upheld our decision and it went to Tribunal. We won by a mile. The judge agreed that she had not been excerising her treaty rights in the UK and was therefore subject to the appropriate tests following the end of her transitionally protected benefit.

    So the morale to this story is … just because a foreign national is granted IS on arriving in the UK and has stayed on that benefit for 5 years or more – it only means that they are transitionally protected for the period that benefit lasts for. Once that ends the appropriate tests will kick in as that person has not been living lawfully in the UK for 5 continuous years so does not get automatic residency.


    [quote=franklinj]So the morale to this story is … just because a foreign national is granted IS on arriving in the UK and has stayed on that benefit for 5 years or more – it only means that they are transitionally protected for the period that benefit lasts for.[/quote]

    Hmm, not quite sure about that, I would take it further if I were reprsenting the claimaint. Error of law being permanent ressidency was not regarded/taken into account bt FtT forget the transitional bit. At least we would then be very sure.


    Winning the Tribunal is good enough for me thank you very much, makes our decision making process that much easier – just as well you are not representing this client Kaye – she has now done a runner!


    [quote=franklinj]Just as well you are not representing this client Kaye – she has now done a runner![/quote] Shame….dont get me wrong Jenny, I know people take the P, but I, more and more in a minority, still think we should just go with the law rather than policy. Needs mst. We want to change it?? Vote for a eurosceptic…..

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