Hi all,

Can someone give me advice as this subject is quite new to me.

I have a client who came to this country 2 years ago, married and had a baby. She came from Czech Republic, and, at the time, this was not part of the EU, so she had no right to public funds. Czech Repbulic is now part of the EU.
Her husband claimed Income Support as a couple but they disregarded her at the time of claim, but as she can now claim I/S can the DWP backdate her claim to when Czech Republic became part of EU? And is it up to the claimant to notify the DWP of when this was?

JC+ office have informed client to get a letter from Home Office to prove she has recourse to funds, but she has since claimed Carers Allowance for looking after her husband and didn't need to provide this to CA Unit. JC+ are also sending them a new claim form to get her full details, which they have already!

Any advice would be greatly appreciated.

Thanks

You need to check this very carefully as the Czech republic was one of the "a8" accession countries, who joined the EEA but have less rights than other EEA people.
In terms of EEA workers people from the A8 countries must register, and only receive full right to reside after one years continuous registered work.Do not understand how EU status would affect benefits entitlement outside of worker status, family members of EEA workers (and workseekers), and benefits that can be imported from other member countries.
I may well have missed something here.

In terms of Home Office proof this is not always necessary, if she does not require Home Office documentation as part of the status the DWP should accept anything that does prove the right to reside - for example A8 nationals who worked legally for one year before the accession date have automatic right to reside and should not have to provide home office documentation, just proof of the work, and former work permit etc...

Hope that is of some help.
Victoria.

Thanks Victoria.

I realised afterwards that this was one of the A8 countries, which is even more of a problem now. The client has not worked since arriving in this country as she was a student and then became pregnant, and is currently pregnant again. Not sure where to look for info though as I've not had any queries like this before.

I keep trawling my way through these pages!

Tue 22-Nov-05 11:00 PM by shawn

From your posting, it seems they are still a couple. If this is the case then:

As a Czech national she is not a person subject to immigration control as she is a national of an EEA state. JC+ have this wrong. Her passport should be enough to establish that she is not a PSIC.

Immigration and Asylum Act 1999
115(9) “A person subject to immigration control” means a person who is not a national of an EEA State and who...

As for both limbs of the HRT:

Carers allowance is not subject to either limb of the HRT so no problems there

If they are still a couple, why can he not continue claiming for her in his claim as the HRT only applies to the claimant?

As to backdating – I would try an any time revision for an error of law. The error being that as she was not a person subject to immigration control, para 16A of Schedule 7 of the IS regs should not have applied. Failing that ex-gratia payments.

I agree with Tim:

As the client is not the claimant then the HRT does not apply to her and there are no problems with her A8 status.

As far as the remedy goes in terms of getting the couple rate applicable amount from the date of accession, am I right in thinking you are saying the claimant began his claim before May 2004?

If this is the case then the decision not to include an amount for her in the IS he is paid was correct at the time it was made. It is difficult to see how it could have been made in error at that time. That would mean any decision before May 04 could not have been made in official error and so a revision on that basis would not work.

I think the remedy will therefore have to be:

1. An official error revision application in respect of any decision made on IS entitlement AFTER may 04 (for example if they did a supersession to add the carer premium at that time they should have picked up the Czech national point not to do so was an official error etc). Such an application would at least ensure they get the couple rate from this date (although it might not go all the way back to May 04).

2. An attempt to get a supersession of the IS decision that is effective from May 04 can also be made:

a)An application for a supersession on the basis of change in legislation from May 04 (a change in legislation is a change of circumstances - R(A)4/81).

b) The difficulty you will have is with Reg 7(2)of the D&A Regs 1999- this seeks to set the date from which a change of circumstances (that is to the advantage of the claimant) as either the date of change (ie May 04) or where the "change is notificed to an appropriate office more than one month after the change occurred ..... the date of notification of the change".

c) You should apply for such a supersession and argue that the change was notified to the appropriate office on 1 May 04. This is on the basis that the office knows about changes to the law when they happen. Furthermore, Reg 7 does not mention WHO should do the notifying.

Possibly a bit of a stretch, but.....

Depending on the exact date of the SI which made provision for A8 nationals, one might be able to argue that the April 04 uprating decision was made in official error. The law allows DMs to make prospective decisions that take account of future changes - the old age-dependent rates of IS dependant additions did not require separate notification of your child reaching 11 or 16 and awarding decisions of IS claimed on the grounds of incapacity include a future date from which the disability premium will be payable.

So if the future arrangements for A8 nationals were already in place as at the April 04 uprating decision, I see no reason why one couldn't argue that decision was given in error.

I think.....

Pastcaring, I think there may be something from the Commissioners saying that an uprating decision is not in fact a decision.... just an administrative non-decision sort of thing that is not really like a decision at all apart from the fact it changes entitlement or whatever.