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ESA award and effect on HB claim
My client originally applied for ESA (IR) from November 2009. He can’t remember what he said about HB when he claimed ESA,or whether he asked for backdated ESA as he was in a bit of a mess at the time. Prior to the ESA claim, he was on JSA and HB. ESA was not paid until this summer. He failed the r2r for both ESA and a separate HB claim he made in Feb 2010 (on no income grounds). His sicknote then ran out and he made a successful new claim for JSA just after coming to us in June 2010. He was awarded HB with the JSA claim. ESA r2r decision was overturned by Jobcentre Plus in August and he received arrears back to the start of ESA claim in 2009. HB for past period still not paid, despite appealing r2r decision on Feb 2010 HB claim, and then informing local authority of ESA award. They have not responded at all, but they are recovering overpaid HB from the new claim (which seems to be for the period JSA award had ended. Am about to make a complaint to them, but there a couple of things I am not sure about and I want to try to get this straight before doing the complaint.
Is there any automatic HB entitlement on the basis of the ESA award back to November, or does client need to show that he told Jobcentre Plus at the time of the ESA claim that he wanted to claim HB?
And if the ESA award from November includes any backdated ESA, would any HB paid on the basis of the ESA award also be backdated, or would HB only be payable from the date the ESA claim was made?
And would any HB that might be awarded on the basis of the ESA claim then come to an end when client made the unsuccessful no income claim for HB?
I would be grateful for any help with that.
[Just for information on r2r issue, he is Portuguese and had ILR from the time before Portugal joined the EU and had worked in thr UK well over 30 years, but Jobcentre Plus and local authority refused benefits because he was not a worker or workseeker at the time of the claim.]
[Just for information on r2r issue, he is Portuguese and had ILR from the time before Portugal joined the EU and had worked in thr UK well over 30 years, but Jobcentre Plus and local authority refused benefits because he was not a worker or workseeker at the time of the claim.]
I’m not quite sure I follow. If he has ILR then R2R is not at issue. Unless he recently returned to the UK after spending 2+ years outside the UK?
They are absolutely rubbish on people whose rights are under domestic immigration law rather than EEA law. I met someone once at tribunal who had the right of abode in the UK endorsed on her passport but they refused her benefits because they thought the entry stamp on her passport was a dodgy version of the “no recourse to public funds”. And they got shirty with me when I told them off.
They are absolutely rubbish on people whose rights are under domestic immigration law rather than EEA law.
Too right!! That’s probably why Wick is overloaded with Appeals!
They’re not that good on EC law either in my experience, apart from one or two local appeals officers I’ve dealt with.
True, but if someone is from what is now an EEA country they are completely blind to how they originally arrived in the UK. I came across a Maltese citizen - uniquely both EEA and Commonwealth - who had first come to the UK shortly before the coming into force of the Immigration Act 1971, undoubtedly under the generous rules then applying to Commonwealth citizens: but all they could see was that he was from Malta which is an EEA country.
At least they know that, unlike the decision I once saw at appeal refusing an otherwise qualifying claimant a funeral payment because the funeral took place in the Republic of Ireland “which is not a member of the EEA.” But I doubt that one came out of Wick.
Jobcentre Plus have revised their r2r decision, which is why the client received backdated ESA. The local authority here usually just follows whatever decision Jobcentre Plus makes, so I don’t expect there will be any more problems with that. (The quality of the LA’s decision making on r2r makes Jobcentre Plus look almost good - their approach is someone has to be economically active or on a qualifying benefit)
What I am stuck with is whether client can now get backdating HB automatically due to ESA award, or whether he needs to satisfy normal HB backdating rules, and what (if any) effect the 2nd HB claim has on any of this.
Talking of funerals, I recently did a funeral payment appeal for an A8 national in respect of her mother, both of whom had been here for about 5 years. My client had not completed 12 months registered work, largely due to illness.
The DWP in its infinite wisdom refused her claim on the sole ground that she did not satisfy para 10 of reg 7 of the funeral payment regs. Now anyone familiar with said regs will know that only paras 3-9 need to be satisfied. Para 10 merely lists categories of people who are workers for the purposes of EC Directive 2004/38, former workers retaining worker status, family members of workers/ former workers or those with a permanent right to reside under article 17 of the directive.
Para 10 only applies when the funeral takes place outside the UK and as the funeral in my client’s case took place within the UK (fully evidenced) then para 10 had no application at all to the case. What the Department had done was an attempt to import some kind of free standing right to reside test into the funeral regs. Priceless! This level of incompetence simply takes one’s breath away. Very worrying for those who don’t seek further advice. Needless to say it took the tribunal no time at all to agree with me and reverse the decision.