Retired worker – Portuguese

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    Nilkesh Patel

    Have a portuguese woman that came to the UK in 2004. She worked from July 2004 – August 2004 and then from November 2004 – 2005. After that due to illness she claimed Incap benefit but was awarded Income Support and has been on this from 2005 to current. As she came to the retirement age she applied for PC which has now been refused, stating she does not have the right to reside and consequently is not habitually resident.
    HB has been in payment since 2006 on Income Support so this is a change of circumstance which has led into us looking at her eligibility again.
    I am looking at deeming her as a retired worker and pay HB on them grounds. Currently she is only recieiving a small amount of pension.
    Under retired worker she has to have had to work in UK 12 months prior to retiring and lived in the UK for 3 years. She satisfies the second part of the criteria. In regards to the working 12 months prior to retiring well she wasnt as she was on Income support but there is a clause which states if the unemployment was duly recorded at JC+ then it can be classed as peiod of work. Now can anyone help me to say that as she was on Income support and recorded at the JC+ then she satifies the first part of the criteria.
    If I dont go down this route can I assume that as she has been here over 5 years she has the right of permanent residence? I thought to have the right of permanent residence the customer would be issued with a permanent residence card and is issued by the Secretary of state? or can individual officers make a assumption that if anyone has been in UK legally for 5 years as a qualified person then he/she is a permanent resident?

    Any help would be nice!! 🙂


    You can make a decision that someone has a permanent right of residence under the five-year rule (DWP has now quite properly disowned the bulletin in which they said it is exclusively a Home Office decision).

    In this case, the nature of the claimant’s incapacity is relevant. If she was temporarily incapable of work, she would retain her worker status after she went sick in 2005 and would have completed her five years some time in 2009. But if the incapacity were permanent she would appear to have failed to satisfy the prior residence requirement of two years. But that residence requirement is waived if the claimant was permanently incapacitated by an industrial disease or accident.

    Got any more info on the nature and severity of the claimant’s condition?

    Nilkesh Patel


    Thanks for your response.
    There is nothing on the file regarding her condition.
    She doesnt have a private pension from a UK institution regarding her illness but only paid SRP.
    Shall I take the option of her having a permanent right of residence and continue to pay the claim?


    Not safe to do that in my opinion – I would ask more about the incapacity.

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