Refused by Universal Credit

sylwia.o

brief outline of my situation.

I've been living in the UK (EU national) since 2006 working/self employed on and off.
My last employment was 2010-2013 - left job due to having my second child and employer moving abroad after my maternity leave finished.
Since then I was stay at home mum looking after two kids (born here in 2009 and 2012) and living with self-employed husband (also EU national) claiming Tax Credits.

My situation suddenly changed a month ago when me and my husband decided to separate and go ahead with divorce.
I notified all relevant agencies together with HMRC not wanting to claim as a couple anymore.
Due to big change of circumstances and us being in full service area I was advised to apply for UC as single claimant.
Made a new claim on 2nd of July and began job search on full speed but just today my claim got refused with a letter and here is a quote

' We're writing to tell you that you're not entitled to Universal Credit. This is because we have decided that you are a jobseeker. For Universal Credit purposes you have a right to reside as a qualified person as defined in Immigration (EEA) Regulations 2016 but that right is excluded for the purposes of awarding Universal Credit.

This means that you are a person who must be treated as not in Great Britain. Therefore, you do not have any entitlement to Universal Credit at this time.

If your circumstances change, you can make a new claim to Universal credit.' quote ended

apparently I failed habitual residence test
so ... Got kinda left on the 'unknown' ground atm as I will be struggling to meet ends being a single mother of two with bills to pay.

I got a job offer and it should start in the next few weeks just not sure if or when will that change my UC entitlement.

Hoping to get CAB appointment this week but any help would be appreciated.

Thanks in advance

Alice_Holt

A job should enable you to claim UC as you will then have "worker status". The DWP will need to accept the job is 'genuine and effective' :
https://www.citizensadvice.org.uk/benefits/coming-from-abroad-and-claiming-benefits-the-habitual-residence-test/eea-nationals-and-the-habitual-residence-test/eea-nationals-claiming-benefits-while-in-work-or-self-employed/

The habitual residence and right to reside rules around UC are complicated.

There are a few other ways of qualifying which may apply to you:
a) If you have retained worker status for a total of 5 continuous years. That can be either as a worker, self-employed, or a job seeker. If you left work in the late stages of pregnancy that period of 12 months childcare may also count towards worker status:
https://www.citizensadvice.org.uk/benefits/coming-from-abroad-and-claiming-benefits-the-habitual-residence-test/eea-nationals-and-the-habitual-residence-test/eea-nationals-other-ways-to-get-rights/you-are-an-eea-national-with-a-permanent-right-to-reside-in-the-uk/
(But you said employment was off and on, so this may not apply).

b) You may have a derived right as the primary carer of a child in education:
https://www.citizensadvice.org.uk/benefits/coming-from-abroad-and-claiming-benefits-the-habitual-residence-test/eea-nationals-and-the-habitual-residence-test/eea-nationals-other-ways-to-get-rights/you-look-after-children-the-habitual-residence-test/


If you are not yet divorced this may also apply:
c) as the immediate family member of an EEU national who has a right to reside as a worker
https://www.citizensadvice.org.uk/benefits/coming-from-abroad-and-claiming-benefits-the-habitual-residence-test/eea-nationals-and-the-habitual-residence-test/eea-nationals-claiming-benefits-as-a-family-member/

You may need a two stage approach - so:

If b) (or c) ) apply it will be worth lodging an appeal - to get payments from the date of your UC application.
You will need to supply relevant documentation to prove your case to the DWP , and go through the appeal process:
https://www.citizensadvice.org.uk/benefits/benefits-introduction/problems-with-benefits-and-tax-credits/challenging-a-benefit-decision/challenging-a-dwp-benefit-decision-on-or-after-28-october-2013/challenging-a-dwp-benefit-decision-on-or-after-28-october-2013-where-to-start/

Once you are working you should also re-apply for UC as a worker.

sylwia.o

Thank you Alice that was a big help!

(a) I am pulling all my HMRC self assessment / tax records to see if 5 year continuous residence as worker/self employed person would apply to me but I'm afraid i could be missing a year or so

(b) Yes I am the primary carer of two kids in general education (kids are not British citizens tho and their father was mostly self-employed through his 12 year stay in the UK). I supplied letters from school but that didn't seem to do anything for the DWP.

looks like (c) could apply but ....
even though I am still married I do not live with my husband anymore and the divorce proceedings have started (only at acknowledgement of service step atm) would that still give me the immediate family member to a EEA self employed (worker) option?
the Written Statement of Reason I requested from UC states : 'Sylwia has declared herself as single but her marital status as separated. No information has been provided about their ex-partner and Sylwia declared during the eHRT interview that she is not a family member of an EEA national'

Big thank you again **

Alice_Holt

b) Don't think it matters that the children don't have British nationality. However, self-employment of the father would not count towards this derivative right, you would need to prove employment. Does he have any periods of employment that can be proved (wage slips, employer's letter, P60, P45, Tax credits documentation)?
If so send the DWP copies along with copies of birth certificates.
Also this would apply if you were working when the child was present in the UK - see the link I supplied at post 2.

c) You don't need to live together. Even if separated the family member right would still apply.
Once divorced you cease to be an immediate family member, so would lose that right of residence.
Speak to your divorce solicitor to establish when in the divorce process you're legally are no longer man and wife. Presumably at Decree Absolute stage (which you haven't yet reached).

I would see if your local advice agency / CAB can give you some help with this issue. It's an area the DWP frequently get wrong, and the government have made this so complicated that UC applicants don't know what to provide to the DWP to prove their RtR.