Polish tenant

mickflynn39

She managed before because her husband did most things. She is capable of learning how to do things herself but before she gets to this stage she needs a bit of help. I'm not from the school of thought that she should be immediately thrown in at the deep end and it is up to her whether she sinks or swims.

tinkerbellkirst

Hi Micky,

Its kind of you to help her in this way, many people don't get any help and end up in a mess.

I worked with a client in similar circumstances to this, she was unable to pass the habitually residence test despite being in the UK for around 6/7 years. This is because on the right to reside they have a right to reside as a job seeker, so I do not think she will be able to claim Income Support, but will be able to Claim Job Seekers. Money is the same however it means she will have to sign on weekly and actively search for jobs.

Once she is in receipt of the JSA she can then claim the housing benefit and council tax benefit. If she updates child benefit and tax credits too to let them know there is now a 3rd baby she will then be getting what she is entitled to.

Also the housing benefit will be capped to how many beds she needs, now having 3 children I think that should be a 3 bed house (but not sure because of babies age). So check the local housing allowance for that.

Hope that helps a bit.

Kirsty
Kirsty

von

sh1981 wrote: »

You might want to look at HRT (Habitual residency test) as well.

However I will put in BOLD what applies as far as Right to Reside is concerned:

All EEA nationals and their family members have the right to reside in any other member state for a period of three months.
To have a right to reside after three months, you must:
I

• Be a 'qualified person', or
• Have the right of permanent residence, or
• Have a derivative right to reside.

To be a 'qualified person' you must be a:

• Jobseeker (for up to 6 months - a limited extension may be granted if you pass a Genuine Prospect of Work assessment.)
• Worker (must earn over £153 a week - the level at which national insurance starts being paid)
• Self-employed person
• Self-sufficient person
• Student.

You normally acquire permanent right of residence by:

• living in the UK as a qualified person for five years; or
• in some cases, people who have worked or been self-employed in the UK and have retired may also acquire a right of permanent residence.

To have a 'derivative right to reside':

• You must be the primary carer of a child under the age of 18 who is in education, and
• You must have previously been a worker while the child was in the UK, and
• The child would not be able to continue their education if you had to leave the UK.

People who have a right to reside only because of the initial three month rule will not satisfy the 'right to reside' aspect of the habitual residence test for:

• Income Support
• income-related Employment and Support Allowance
• Pension Credit
• Housing Benefit (Housing Benefit: England, Scotland, Wales) (Housing Benefit: Northern Ireland)
• Council Tax support.

All EEA nationals/family members within the initial three month right of residence period can currently claim Child Benefit and Child Tax Credit. However, from 1 July 2014 a new residency rule will apply to jobseekers who wish to claim these benefits, like that in place for Jobseeker's Allowance.

See the bit in RED above, it has an AND condition, not OR, but an AND. However also see above in PURPLE.

About HRT
'Habitual residence in fact'

Proving someone is ‘habitually resident in fact’ relies on case law as there is no definition in the Regulations of ‘habitual residence’.
Some key points:

• You must be resident (and in some cases have been so for at least 3 months)
• You must show intention to settle (not necessarily permanently).

You may be accepted as habitually resident from your first day if you are returning to the country and you were previously habitually resident or you or a member of your family is a national of, or has worked in, another European Economic Area (EEA) state.
British citizens who have lived abroad and are returning to the UK will still have to show that they are 'habitually resident in fact'.

http://www.turn2us.org.uk/information__resources/benefits/migrants/habitual_residence_test_hrt.aspx

Remember, the op said she has been in UK for 6 years.

In short: She will pass.

She obviously passes the Habitual Residence Test because she has lived in the UK for a number of years but does she satisfy the Right to Reside in the UK for benefit purposes? Is she the primary carer of a child who is in education?

mickflynn39

Thanks for that Kirsty. If she fails the test then plan B will be as you say to claim Jobseekers Allowance and take it from there.

mickflynn39

From what I can see she would not be getting tax credits and child benefit if she didn't have a right to reside. She is already getting these benefits so you would assume she has satisfied the requirements for the right to reside.

sh1981

tinkerbellkirst wrote: »

Hi Micky,

Its kind of you to help her in this way, many people don't get any help and end up in a mess.

I worked with a client in similar circumstances to this, she was unable to pass the habitually residence test despite being in the UK for around 6/7 years. This is because on the right to reside they have a right to reside as a job seeker, so I do not think she will be able to claim Income Support, but will be able to Claim Job Seekers. Money is the same however it means she will have to sign on weekly and actively search for jobs.

In her situation job seekers would not apply. That is through the route of 'a qualified person'. In her case derivative right to reside applies. She has children. In my earlier post I wrote in detail that she IS eligible, very much eligible for income support because of the above stated derivative right to reside.

In your above stated example, living for over 5 years in UK was not enough because that person was probably aiming for permanent right of residence route, which states living in the UK as a qualified person for five years. The keyword being 'qualified person'. This does not apply in her case regardless of anything.

tinkerbellkirst wrote: »

Once she is in receipt of the JSA she can then claim the housing benefit and council tax benefit. If she updates child benefit and tax credits too to let them know there is now a 3rd baby she will then be getting what she is entitled to.

Also the housing benefit will be capped to how many beds she needs, now having 3 children I think that should be a 3 bed house (but not sure because of babies age). So check the local housing allowance for that.

Hope that helps a bit.

Kirsty
Kirsty

Number of beds also depends on the gender of the children. Two little girls for instance can be in one bedroom. Overcrowding rules apply.

HB and CTC are not related to JSA, ESA or IS and therefore and no effect on each other.

von

Unless she has derived a permanent Right to Reside in the UK (in which case she would probably be awarded Income Support), her entitlement to JSA and Housing Benefit may be a problem. She will only be entitled to claim JSA for 6 months after which she will not be entitled to anymore unless she can show she has a Genuine Prospect of Work, if she can't her JSA may cease. Also, as she may be claiming JSA after 1/4/14 she may not be awarded Housing Benefit. The Regulations have recently changed for EU nationals claiming benefits.

I am not trying to put you off helping your tenant but to be honest I think her best course of action is to go to the CAB who can also help her.

sh1981

mickflynn39 wrote: »

From what I can see she would not be getting tax credits and child benefit if she didn't have a right to reside. She is already getting these benefits so you would assume she has satisfied the requirements for the right to reside.

Circumstances of partner (at the time her husband) applied.

http://www.hmrc.gov.uk/childbenefit/start/who-qualifies/new-arrivals-uk.htm

There is child benefit and child tax credits. Both different.

sh1981

blondebubbles wrote: »

I can understand you wanting to help her but she is an adult and a parent and needs to learn to deal with these things herself. How do you think everyone else learns? She learnt to claim before, how did she manage then?

Wrong. Everyone does not learn. I have personally seen english people born and bred here who were in tears once their income support or jobseekrs stopped. No one informed them on hardship payment.

She will most certainly be unable to understand shibboleths that are commonly used in British English. No amount of education or intelligence or wisdom can prepare a person for that. You have to interact with friendly locals to learn.

How did she manage before that? Because she was probably in Poland, where she understood every single shibboleth laid before her, and you would on the other hand struggle, very much, as would I.

sh1981

mickflynn39 wrote: »

Her English is very good but not good enough to fully understand what an English person on the other end of a phone is always saying. Also she herself doesn't feel it is very good and lacks confidence. Maybe a better choice of words would have been she is limited by her English. Also in face to face interviews she lacks confidence but if someone is there to help her with the odd word she is fine.

Yes I fully agree, some people start shaking at the sight of 'authority' and interviews. They have trouble understanding accents, I have trouble understanding scottish accent.