Failed habitual residency test

shazm.69

My daughter is british. She has failed the hrt. She moved back from spain a couple of months ago. Her partner is spanish could this be why? She was told afterwards to claim income support as a single parent as her partner has no resource to public funds. Any advice please? She has absolutely no income i am having to support her, her partner and 2 children.
She wasnt even told she had failed she signed on twice and after 3 weeks phoned to see why she hadnt received any payment and was told over the phone that she had failed the test.
Does this mean she wont be entitled to tax credits or child benefit?

marvin

I thought (correct me if wrong) EEA residents are exempt from hrt, free movement across EEA (European Economic Area) Spain is still in the EEA isn't it?

If so this all sounds a bit dodgy to me.

HappyMJ

Appeal. Has she cut all ties with Spain? If so then she can be HR as soon as she lands back in the UK. If not then cut everything. They will be assuming she's back here on a holiday wanting some benefits to fund it then return to Spain later. If that is not the case then you have to appeal.

Are the kids going to UK school?
Have all Spanish bank accounts been closed?
Has all money from Spain been transferred to UK?
Is there any Spanish property?

pmlindyloo

Have a thorough read of this to understand all about the habitual residency test and who it applies to.

http://www.adviceguide.org.uk/england/benefits_e/benefits_coming_from_abroad_and_claiming_benefits_hrt/benefits_the_habitual_residence_test_introduction/who_has_to_take_the_habitual_residence_test_hrt.htm

shazm.69

Thanks for the replies. Yes they have left Spain for good. They had no money to transfer and no property. They have closed bank accounts and have a letter from daughters school confirming that she has left. She was advised at first to claim income support and was refused that as she has a partner. Then she applied for JSA and now has been told to claim income support. She applied for Tax credits and CB weeks ago and has heard nothing. It just makes me sad as it wasnt her fault she left the country in the 1st place she came with us as she was only 14 at the time. She couldnt return with us because of her children.

pmlindyloo

shazm.69 wrote: »

Thanks for the replies. Yes they have left Spain for good. They had no money to transfer and no property. They have closed bank accounts and have a letter from daughters school confirming that she has left. She was advised at first to claim income support and was refused that as she has a partner. Then she applied for JSA and now has been told to claim income support. She applied for Tax credits and CB weeks ago and has heard nothing. It just makes me sad as it wasnt her fault she left the country in the 1st place she came with us as she was only 14 at the time. She couldnt return with us because of her children.

To be able to apply for Child Benefit your daughter would only have to meet the 'right to reside' test which as a British citizen she does.

She would need to be receiving Child Benefit in order to get Child Tax Credits (again, for the latter you only need the 'right to reside')

I suspect that there is just a delay in awarding these.

Because your daughter's OH is not entitled to public funds then applying for benefits is quite complicated.

I suggest that you get some help for this through CAB. Your daughter really needs to see a Welfare and Benefits advisor at CAB. Google CAB for your nearest one offering this service.

You also need to explore job prospects for your daughter and her partner.

I suspect your daughter's OH is not entitled to public funds not because of his immigration status but rather because he has not worked in the UK at all as an EU citizen.

This is a very complex area so you really do need some professional advice.

Dunroamin

marvin wrote: »

I thought (correct me if wrong) EEA residents are exempt from hrt, free movement across EEA (European Economic Area) Spain is still in the EEA isn't it?

If so this all sounds a bit dodgy to me.

EU residents are free to live wherever they wish, to claim benefits they need to pass the HRT.

shazm.69

Yes her OH wants to start work asap he has an appointment to get a NI number in Jan He needs CSCS card or something and before he can get that he needs a NI number. It puzzled me as in the job centre the people that worked there told her to re apply as a single parent surely thats fraud? I asked them this and they said no it isnt as her partner has no resource to public funds. Its very confusing.

HappyMJ

shazm.69 wrote: »

Yes her OH wants to start work asap he has an appointment to get a NI number in Jan He needs CSCS card or something and before he can get that he needs a NI number. It puzzled me as in the job centre the people that worked there told her to re apply as a single parent surely thats fraud? I asked them this and they said no it isnt as her partner has no resource to public funds. Its very confusing.

I don't recall having to show my NI number to get a CSCS card. A CSCS card is proof that holder knows site health and safety in the UK on building sites. You do the exam, pass the test and get the card.

Yes it is a single claim if the partner has no recourse to public funds. The partner will not be counted in the benefit calculation so she would get £71.00 a week and not the couples amount of £111.45 if she got that then he would be getting the public funds. The housing benefit that she could get would be exactly the same whether he was there or not even though he is benefiting by having a roof over his head it would have been paud for anyway. They might find they won't get full council tax benefit though.

missapril75

shazm.69 wrote: »

Thanks for the replies. Yes they have left Spain for good. They had no money to transfer and no property. They have closed bank accounts and have a letter from daughters school confirming that she has left.

I suspect you have encountered one of those officials who likes to apply a "qualifying period" of residency prior to accepting someone is habitually resident.

There is no such thing as a qualifying period but staff often do apply 3 months, 6 months etc

From what you have said, an appeal should do the trick, but it may not need to go as far as an appeal hearing. Just making an appeal will mean it gets looked at properly.

I take it neither of you said there would be a return to Spain if you can't get work in the UK? That can cause a problem.

eadieb

just a couple of weeks before xmas I was assisting a french single parent in a similar position. We researched all we could on internet about the residency test and it seemed that our persons best option was to prove residency by becoming a job seeker. This meant that she had to claim JSA and begin signing on. we advised her to continue signing on as a job seeker even when her claim was refused. we helped her appeal and make a fresh application for JSA. some benefits advice we read, seemed to urge a person to continue to make new JSA applications as it may be that the way the person is viewed alters following a few weeks.

The person we were assisting was told to claim income support by the job centre but this claim failed and everything we read showed no entitlement to claim income support. If the children are over 5, the parent would be expected to claim JSA anyway. I'm sure there was stuff we read that seemed to indicate that the applicants children being in school was a key factor in establishing residency.