Surprise, Suprise, a Person From Abroad query??

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  • #34906
    rds01
    Participant

    We have a Polish claimant who is a single parent. She has lived here for less than 5 years and has worked for a period exceeding 12 months. However, now her child is ill and she has stopped working to care for the child. She has no immediate plans to return to work and has not made a claim for IS/JSA. Is she eligible to claim HB/CTB? Thank you in advance.

    #98159
    Anonymous
    Guest

    She might just about scrape through, relying on the Baumbast case. If the child is of school age, and already was at the time when she was working, then it has the right to continue in education. In turn, the child cannot very well bring itself up without a parent, so she would have a continung right to reside in order to look after her child. If she can stagger to the 5-year tape in that fashion, she will acquire permanent residence.

    #98160
    rds01
    Participant

    Thank you for your reply. The child was born on 14 March 2004 so it is not at school. How does this affect the decision?

    #98161
    Anonymous
    Guest

    That does make it more dfficult.

    There is no direct right of residence that she has in this situation as far as I can see. All you can do is perhaps take the view that it would be disproportionate to deprive her of support during what will hopefully be a brief interruption in her economic activity and self-sufficiency.

    #98162
    rds01
    Participant

    Thank you for your reply. I think the claimant has no plans to return to work in the near future. Therefore, what would define a brief period? If she does not know how long her child will be ill how can we make a decision?

    #52359
    Anonymous
    Guest

    It’s probably curtains then

    #98163
    sharonwarner
    Participant

    Hi Peter

    We had a claimant recently speaking about the Bambaust case but when we spoke to DWP Adelphi, we were informed that this is not yet in our regs and was only a European Court case so we were not bound by this,

    Have you seen a circular or similar on this?

    #98164
    Anonymous
    Guest

    Baumbast is in our Regs, but not specifically. Let me explain.

    Our HB Regs refer specifically to certain European rights of residence that automatically satisfy the HR test immediately, even if the claimant is not yet habitually resident: in effect, the claimant’s right of residence exempts him/her from the HR test. Workers, for example, are covered by this.

    In addition, our Regs specifically refer to certain European rights of residence that are never good enough to satisfy the HR test, even if we would otherwise be inclined to regard the claimant as habitually resident. These claimants are automatically PFAs, even if habitually resident. A jobseeker is an example of this.

    In between those two extremes there are people who do have a right t reside, but not one which falls into either of the categories above: neither exempt, nor automatically a PFA. The Regs do not name any specifically, but the most obvious example is a British citizen. These claimants still have to satisfy the test of actually being habitually resident (as most Brits are, of course, although not all as discussions on here demonstrate).

    There seems to be a misconception in some quarters that Europeans cannot fall into this middle group – neither exempt nor auto-PFA. But they can … and people who derive a parasitic right of residence a la Baumbast are one example. They quite clearly do have a right to reside, and it does not need to be mentioned specifically in the Regs. They also have to be habitually resident too – jut like a Brit.

    #98165
    rds01
    Participant

    In my example above I stated that the claimant has not worked since April 2007 and had no plans to do so as she was caring for her sick child. She has been here for less than 5 years and has previously worked for more than 12 months.

    However, becuase of her needs she is now working again, for 4 hours earnings 20pw. She intends to work 16 hours when her daughters health improves which will hopefully be soon. Currently she is unable to support herself so is not self-sufficient.

    How does this affect the decision and HB eligibility? If she works 4 hours is this considered not genuine or effective and therefore not entitled to HB? Can she only be awarded HB once she increases her hours to 16pw?

    Any help really appreciated.

    #98166
    rds01
    Participant

    Further to my previous questions, as she is now working (albeit small)could her circumstances mean she is only temporarily not working and still regarded as a “worker”? Regs. talk about being sick or injured. Does this extend to dependent children? Any cooments greatly appreciated.

    #98167
    rds01
    Participant

    Further to my previous note, the claimant is now working 16 hours a week from 1.8.07, doing 2 P/T jobs. The first started on 17.7.07. Does this make a difference? Please help as I am so confused….thank you in advance.

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