IS for 17 yr old - R2R issue

Hi all, wondered if anyone could help me with a little R2R issue.

Cl is 17 and 7 months pregnant. She has just finished a college course, and her mother is still claiming CTC & CB for her. Cl mother has told her that she is no longer willing to support her and that she must leave the home (LA acc). Cl has made homelessness application, claimed IS and Sure Start Maternity Grant. LA have decided she is not eligible for homelessness assistance as she does not meet the eligibility test. Cl has asked for review of decision. DWP have likewise rejected IS app, stating that she does not meet the requirements for the right to reside test. They quote Regs 21AA(1) and (2) of the Income Support (General) Regulations 1987 and Reg 6 of the Immigration (EEA) Regulations 2006. The application for Sure Start Maternity Grant has been turned down on the basis of no entitlement to IS (or any other relevant MTB). I saw cl for the first time today.

Cl has been in the UK for 3 yrs and is a French national. Her mother has been in the UK for 10 yrs, cl is unsure of her status but says she is claiming some form of incapacity related benefit, and is housed in LA acc.

I have advised the cl to make an application for JSA, based on hardship direction, which if successful should entitle her to the Maternity Grant. I have discussed I will I look in to IS R2R issue in the meantime, we are already out of time for appealing decision. My main query is whether the cl should have a R2R on the basis of her mother’s status. CPAG seems to suggest that family members of British citizens (if this is what her mother is) should have a R2R, but I’m still a little unsure. Any help would be gratefully received!

I think the starting point is to clarify the mother’s status if possible. Is she an EEA national or has she become a British citizen? If she is an EEA, and has a RTR (on basis of retaining her worker status whilst in a period of temporary incapacity for work, etc) or has a permanent right of residence (quite possible as she has been in the UK for 10 years) then your client also has a RTR as a family member (she is still under 21). If mother has at some point become a British citizen did she have a RTR in another EEA state prior to that (France for example?)

Thanks 1964. So far I have gleaned that the mother came directly from the DRC to the UK 10 yrs ago, and has never lived in another EEA state. I would hazard a guess that she might have been granted refugee status, but haven’t managed to get confirmation as yet. As far as client knows she only holds a passport from the DRC.

Ah. That makes it more difficult.

What about your client’s father? Do we know anything about him/his status/current circs? I don’t suppose he is an EEA national and conveniently working in the UK?

It’s not looking straightforward, so I think your advice that the client claims JSA for the time being is good…

Indeed. Sadly the father has now returned to France…my only other thought was the possibility of the client claiming IS whilst declaring that she is looking for work. Might this be a way of maintaining worker status? Or is it a no-goer if the client lacks a work history?

Don’t think it is a runner if she has never worked (she can’t retain her worker status on that basis).

I think it’s JSA or nowt, realistically, at least on the face of it (any RTR gurus want to chip in on this one?)

Edited to point out that as she is 17, it will have to be hardship payments in the first instance rather than JSA…

although not an R2R guru, i agree about the jsa - think any claim for IS is pretty much bound to be turned down and will then put other bens at risk (ie hb, ctb, ctc).

If the father ever worked in the UK whilst claimant (17 year old) was living here then claimant has a Baumbast, Teixeira right as the child of a person who was a worker in the UK etc. as she is in education.

It is often easy to forget (because we are more often looking at the right of the primary carer of a child in these cases) that these rights attach first to the child- eg the children of Baumbast had a right of residence under article 12 1612/68 to allow them to complete their education as well as their mother (who only had such a right to allow them to exercise theirs).

So structure of argument would be:

1. Client father is a French national, he worked in the UK.

2. Client was living (“installed in”) the UK at a time when was also living in the UK.

3. Client is currently in education.

4. Client therefore has a right to reside pursuant to article 10 of EU Reg 492/2011 (formerly article 12 1612/68).

For an example of case where the child was the one with the right of residence and no primary carer had a right see Gaal Case C-7/94

Martin

is she still in education? simon says she’s just finished course in first post or have i missed something?

ros - 21 August 2013 03:25 PM

is she still in education? simon says she’s just finished course in first post or have i missed something?

Woops- sorry. Ignore my previous post….

Hmm interesting, although the client has technically finished her college course, there was a logical follow on course, which the client has not yet enrolled for due to her current circumstances. Perhaps I should encourage her to enroll, although it may be problematic whilst mothering a newly born baby. But then again, so will meeting JSA commitments…

An EEA child might be eligible for assistance under s17 of the Children Act.  This is where the LA should have looked in the first place.  She should go back while she is still under 18 and ask for an assessment.  However, a child may be excluded from assistance under schedule 3 of the Nationality, Immigration and Asylum Act 2002 if she is part of a family with an adult member.  If she presents alone as estranged from that family or not part of a family for another reason (i.e. geographical separation from her father) then her eligibility for assistance is enhanced.  It is arguable that exclusion from s17 by virtue of the NIA Act is discriminatory but it would take a higher court to sort that out and is probably for another day.

nevip - 27 August 2013 04:04 PM

An EEA child might be eligible for assistance under s17 of the Children Act.  This is where the LA should have looked in the first place.  She should go back while she is still under 18 and ask for an assessment.  However, a child may be excluded from assistance under schedule 3 of the Nationality, Immigration and Asylum Act 2002 if she is part of a family with an adult member.  If she presents alone as estranged from that family or not part of a family for another reason (i.e. geographical separation from her father) then her eligibility for assistance is enhanced.  It is arguable that exclusion from s17 by virtue of the NIA Act is discriminatory but it would take a higher court to sort that out and is probably for another day.

Thanks Nevip, that’s useful. As the LA decision is currently under review, might it be worth writing to the LA reminding them of their duty under S.17?

This case is still causing a headache…
- Cl has now twice claimed for JSA and has been told that she is not entitled. I spoke with the Young Persons Adviser at the relevant JCP who insisted cl would not be entitled to JSA in the late stages of pregnancy.
- I referred cl to Child Services, but have been told today that her file has been closed. I am awaiting a call back to verify the reasons for this.
- I have ascertained cl is still seeing partner of child. He has refugee status with 5 yr L2R, and is currently homeless and claiming JSA.

My main questions are:
- JSA Regs stipulate cl must be available to work for 16 hours or more if (s)he has caring responsibilities. How will that sit with late stages or pregnancy/newly born child?
- Will child’s father’s status be of any use?