Case digest

Migrant workers and benefits

Secretary of State for Work and Pensions v Bhakta

In this case, the Court of Appeal stated that where a claim to Income Support is disallowed on the basis that the claimant was not actually habitually resident (eg had not been in the country long enough to show a settled intention to remain), then the Department for Work and Pensions (DWP) should consider using its powers to make an advance award of benefit. There is no need for certainty in the eyes of the decision maker that the claimant will satisfy the habitual residence test in the future. The legislation allows an advance award to be made if in the ‘decision maker’s opinion’ on the facts at the time, the claimant is likely to satisfy the entitlement conditions in the future.

Following this decision, the DWP is currently putting forward proposals for amending legislation to remove the power to make advance awards in the above circumstances. Law Centre (NI) has produced a response to these proposals which are subject to consultation by the Social Security Advisory Committee.

CH 2484/2005 and associated cases

Five related cases were heard by a Tribunal of Commissioners regarding certain aspects of the habitual residence and right to reside tests. It was noted that although an EU national may lawfully be permitted to be in the UK, this does not translate to a ‘right to reside’ for the tests in the benefit rules. Although a person may be habitually resident (eg looking only at length of residence) s/he still needs to show that s/he has a right to reside. The right to reside test encompasses the ‘qualified person’ test, which is familiar to immigration law.

For advisers in social security, the most common examples of a ‘qualified person’ that they are likely to be dealing with are workers and family members of workers. From 30 April 2006, all EEA nationals and family members have a right to reside in any other member state for three months. However, people with a right to reside based on initial three months of residence will not satisfy the right to reside aspect of the habitual residence test unless they are financially self-sufficient. An economically inactive EU national will therefore have a much more difficult task in showing s/he has a right to reside for benefit purposes. It may also be useful to look at the Northern Ireland Commissioner’s decision in C 7/05-06(IS) where the Commissioner gives some guidance on how tribunals should deal with cases involving questions of the habitual residence test.

C 6/05-06(IS)

This was a test case taken by Law Centre (NI) regarding Accession State nationals and the need to register their work with the Home Office Workers Registration Scheme. The claimant had worked and registered for a period of seven months and had then changed employment. She worked for a further five months but did not have her registration amended to show she had changed employment. The final five months of employment did not count towards twelve months of uninterrupted employment.

The claimant argued that refusal of Income Support goes beyond European law provisions in requiring A8 nationals to register their work for twelve months without interruption. The derogations contained in the Accession Treaty 2003 did not preclude an award in the claimant’s circumstances. However, the Commissioner found that the permitted derogations from the EU provisions did allow the requirement for A8 nationals to register their employment.  Law Centre (NI) is appealing this case to the Court of Appeal and has been granted leave to appeal by the Social Security Commissioner.

Important reminder

It is vital that advisers dealing with A8 nationals ensure that their clients have their employment registered under the Home Office Worker's Registration Scheme within one month of starting employment. If they change jobs during their registration period, it is vital that they have their registration amended. Once working and registered, an A8 national can claim Working Tax Credit. Child Tax Credit, Child Benefit and Housing Benefit plus Income Support if, for example, falling ill (depending on satisfying the normal criteria). These benefits can be claimed during the first twelve months of employment, there is no need for a claimant to have worked twelve months before s/he can claim the above benefits. However, if a person loses her/his job during the first twelve months, s/he will have no entitlement to benefit except in very limited, specific circumstances.

© Law Centre (NI) 2006