My client is a Portuguese national who came to live in the UK in 1994 with her daughter. She worked from 1994-1996 and paid tax and national insurance. In 1996 she had to give up work to look after her daughter because her friend who used to look after her was not able to do so any longer. She claimed benefits and was in receipt of income support and other benefits from 1996-2002. In 2002, when her daughter turned 16, her income support stopped and she claimed Jobseekers Allowance. She was in receipt of JSA from 2002-2007. In 2007 she was diagnosed with breast cancer and was told by the Jobcentre Plus to claim income support instead as she is no more eligible for JSA due to her illness. She claimed income support which was refused on the basis that she does not have right to reside in the UK.
Any suggestion on what is the best way to challenge this decision would be much appreciated.

In my experience a generous tribunal might accept continuing worker status.

Also there's an argument that as she's been here for more than 5 years then she's got an r2r anyway, it's reg 15(1)(a) I(EEA)2006 and article 17 of 2004/38/EC which was drafted with regard to article 18 EC.

Up here DWP are saying that you must have residecd in UK, in accordance with those regs for 5 years, and interpret that as "with a r2r as granted above" but that renders several other I(EEA) regs as to when workers or ex workers might get the r2r after shorter periods of no effect so, at least in my submissions, is against the rules of statutory interpretation as the regs must be read so as to give other regs effect, also to read it in any other way would not be compliant with art 17 2004/38/EC without reading in another caveat that isn't there.

I think your client may have transitional protection against right to reside rules.

Under reg 6(1)(c) of The Social Security (Habitual Residence) Regulations 2004 you retain transitional protection if you were entitled to one of the specified benefits (IS,JSA,HB,CTB,SPC) on 30.4.04 and then make a claim for another specified benefit after 1.5.04 and the new claim is continuous with old one.

As long as the claim for IS followed on from the claim for JSA, or if she had continuous HB/CTB for whole period, she should be OK.

Reg is on p684 of Vol II of Sweet and Maxwell Social Security Legislation.

Cheers
Ros

Thanks a lot for the information. This is really useful.
Best wishes
Prasann