Person From Abroad – HB/CTB Eligibility

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  • #34915
    mitch2105
    Participant

    Have a claim here where claimant came to UK Feb 2006 from Hungary. She was working & just been awarded Maternity Allowance effective from 23.06.07 – DWP have advised that as long as she has been working > 26 wks they will process MA award & have done so on this occasion.
    Is she eligible for HB/CTB?
    Does she retain the status working ? therefore still has right to reside??

    can anyone give me an urgent reply please

    thanks

    #98196
    Anonymous
    Guest

    You won’t get a definitive answer on this.

    It looks as f she completed 12 months’ registered employment and so she is no longer an A8 worker – she made the step up to regular European worker. But when a European gives up work to have a baby, the legilation s completely silent about retention of status. Some people say that late pregnancy/recent childbirth are analogous to illness and accident, in which case worker status is retained; others feel that is stretching the rules too far. No-one knows which approach is correct – the courts have yet to pronounce. Even if worker status is not retained, you could take the view that it is disproportionate to regard someone as having lost their right to reside during a short maternity break if you are satisfied they will be getting another job relatively soon.

    It is entirely your call.

    #52399
    rds01
    Participant

    I have a similar case of a Polish lady who has been working since May 2004 and registered. She started maternity leave in May 2007. She is a single parent and has decided NOT to return to work, claiming CB and CTC. As she has no intention to return to work is she still eligible for HB?

    #52400
    Anonymous
    Guest

    CPAG annotated legislation says that “Curiously, pregnancy
    is not separately included, which may give rise to an Art 14 challenge under the Human Rights Act.”

    CPAG’s Migration and Social Security Handbook 4th Edition (p. 350)includes the following comment: “EC law on workers is largely silent on the issue of pregnancy. However, brief reference is made to the protection of rights in the recent Residence Directive.

    A woman is treated as having continuous residence for any period that she is absent for [b:11888344ed]a temporary period due to pregnancy[/b:11888344ed]. This provision seems to relate to absence abroad but the rule gives some support to the view that a temporary gap in work should be ignored in terms of the loss of worker status or
    residence rights.”

    #98197
    rds01
    Participant

    Following on from previous comments, if my claImant is not temporarily out of work (because she has no intention of returning) she is not eligible for HB?

    #98198
    Anonymous
    Guest

    If she has no intention of returning to work it is hard to see any way in which she could retain worker status, and there are no immediate prospects of her getting off welfare benefits, so you woud be entitled to conclude that she is not covered by any of the rights of residence: not a worker, not a work seeker, not a self-sufficient person. So she will probably fail the hab res test

    #52403
    rds01
    Participant

    Thanks for your reply Peter.

    #98199
    rds01
    Participant

    Just one more question (I hope). Can this claimant claim HB/CTB after she has been legally resident after 5 yeras – providing she satisfies the HR test?

    #98200
    Anonymous
    Guest

    I would have thought that if someone has been resident for 5 years they should have little difficulty in proving they were habitually resident. 😉
    Yes they can 8)

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