Urgent advice needed for IS claim for U18 student from Eastern Europe

Urgent advice needed for IS claim for U18 student from Eastern Europe - they have been in UK for 3 years, now estranged from family, receiving support from RSL but refused benefit due to Habitual residence to Reside test.

As they are U18 I am thinking that Social Care will need to provide support but that will only be until his 18th Birthday?

They are in FTE, so JSA not an option - all advice appreciated….........its Friday, brain is so not functioning today :(

Thanks everyone

Following Teixeira, if the child installed himself with his parents either after or during a period when one of them was exercising treaty rights as a migrant worker and subsequently went into education, then he has a right to reside in order to finish school/college, in accordance with Article 12 of EC Regulation No 1612/68.

Plus would probably be OK a family member of his parents anyway, on presumption one of them is working.

We have been informed that YP refused again as no evidence held that parent was or has been a worker in UK other than our statement and support worker statement. As it is an estrangement case, we have great difficulty in directly establishing evidence of parent work history…......all ideas and advice appreciated

Is this not a case where DWP are better placed than the YP to establish whether the parent(s) are working?  Assuming the YP knows their parent(s) name, DOB, address, maybe where they work or some combination of these DWP should be able to establish if legal work is being done assuming tax or NI is being paid as HMRC will have records (maybe).

Mairi

And DWP should take all reasonable efforts to establish that (as per Kerr v SOS for NI- can’t find the exact reference).

And the Department can contact the Home Office to see if any past work has been registered.  Look at the Kerr decision re- the information gathering process.

Here, paras 62-63.

http://www.publications.parliament.uk/pa/ld200304/ldjudgmt/jd040506/kerr-1.htm

Might be worth getting hold of the parents (if you can). I had a similar case where they said child did not have R2R etc as there was no evidence of the parent’s status a worker.When I saw the parent she had a lot of DWP docs that said that she had been recognised as a worker, had leave to remain and so on.

The sub was basically a copy of these papers with a narrative that said that the Sec of State has already established all this . What I wanted to add, (but didn’t)  was ..‘if he could be bothered to look for it.’

Sorry all to re-open this one but it’s almost identical to a query I currently have.

Identical in terms of under 18 Eastern European and already lived in UK for a couple of years.  However - the difference is that his parents still live in Latvia and he’s been living in the UK with his elder brother from whom he’s now estranged.  Any mileage in arguing that the brother was acting in place of their parents?

Mairi

Mairi - 07 May 2013 03:08 PM

Any mileage in arguing that the brother was acting in place of their parents?

I don’t think so, but, maybe an “extended family member”?

Thanks for the quick reply.

That’s what I thought really - clutching at straws here.

Not sure we’ll be able to meet the requirements for ‘extended family member’ as this seems to rely on a document stating he is such and we’re not sure what kind of document we need.

Also not sure if his brother claimed any tax credits or CHB for him or what his brother’s circumstances are although I can do a bit more digging.

Mairi

I was hoping, the fact he has been in the UK for 2 years already, might mean he has some kind of documentation or maybe even the brother was his primary carer…....I guess some more diggin is required then.

http://www.legislation.gov.uk/uksi/2006/1003/regulation/8/made

Thanks again chacha.  I think the only thing we can do is check if he has any documentation as he doesn’t meet any of the critera as stated as far as I can see…

2. no longer dependent on brother or part of brother’s household
3. no health needs
4. doesn’t require indefinite leave to enter or remain
5. not partner of EEA national

Thinking aloud (above) in case anyone has any clever dodges I might not be seeing…

Mairi

Problem is the documentation, on it’s own, is not good enough the circumstances under which the document was issued must be the same, or well, as near as.

So though it does not look too promising, andd even though they are estranged, if you could establish that there was and is still dependancy, AND you have the document there is the possibity.

If the brother could allude to the fact that, though they may be estranged, the student was and still remains dependant on him.

They don’t have to live together, if he still provides things like groceries, bus fare etc then he is still dependant. Worth a try?

Thanks again chacha.

I’ll doublecheck the circumstances but as far as I’ve been advised the claimant is totally estranged and has been receiving support from social work for the last 3 months (didn’t know the last bit when I first posted).  Looks like it’s down to social work if he wants to stay in education and JSA if he doesn’t.

Mairi