Habitual Residency & PIP

leftholdingthebaby123

My friend is 57 years old.  She was born in the UK and lived and worked here for 40 years.
She then married a Turkish guy and lived in Turkey for 18 years.  She returned back to the UK in August 2020 as she was suffering terrible domestic violence, she was not allowed to leave the house and her husband put in security cameras to watch her when he was out.  The violence got more and more aggressive and the husband started to threaten to shoot her through the head with his shotgun.  She could not go to the police as they were friends of his.
The escape was managed from the UK and she managed to flee to safety in August 2020.
She initially went into temporary accommodation until a suitably adapted bungalow became available to cater for her many disabilities.  Within the last month she has moved into her Socially Housed bungalow.
She is now claiming UC50 High Rate Mobility and Personal Care. She made an application on the telephone for PIP at the same time, she explained her circumstances and they said they would send out a PIP Application Form.  Instead, she received a letter saying that she wasn't habitually resident for (I think) one out of three years, although it may have said two out of three years.  She called them up and again explained that she had no alternative than to return back to the UK otherwise her life was in danger.  PIP said that they will pass this information on to a Caseworker and it will take approximately 10 weeks to decide whether she is Habitually Resident or not.  That was last October.  She never heard from them, so she chased them up as the 10 weeks has long since passed.  This morning she received a phone call from PIP saying that she is not entitled to make a claim as she's not been Habitually Resident.  The Advisor said that she will send my friend a letter stating this.  Now I'm not sure if this will be a Mandatory Reconsideration letter giving her 4 weeks to appeal.  In any event, has anyone got any advice on how to proceed with this case.  Turkey is not in the EU, and now neither is the UK.  She had to escape from this violent situation and I am wondering if there is anything in the PIP Handbook which covers such situations or is there any Case Law which can be sent with the MR.
Any advice would be very welcome as I want to really help my friend.  She needs overnight care some nights and has numerous disabilities, including a dent in her head which has caused brain injury.
Thank you.

poppy12345

leftholdingthebaby123 said:

She is now claiming UC50 High Rate Mobility and Personal Care.

This doesn't make sense and is no such award for UC, it would eother be LCW or lcwra but PIP and UC are 2 completely different benefits.

To answer your question regarding the PIP to be eligible, part of the criteria is you need to have lived in the UK for 2 out of the past 3 years. https://www.gov.uk/pip/eligibility based on this then it's unlikely she would qualify at the moment.

leftholdingthebaby123

Sorry about the confusion.  I don't understand Universal Credit, that's why I said she is in receipt of UC50 (Support Group).
I want to know if there is an over riding concession for people having to flee DV from a partner after living abroad and returning back to resume their life in the UK.  She is a British Citizen. 
As you say poppy, the general consensus is 2 years out of 3 in the UK for PIP eligibility, but this lady could not risk her life continuing to live in Turkey and probably would have been murdered by now.  She has passed the Habitual Residency Test for UC & Social Housing, it's the PIP I need to know if anyone has case law relating to fleeing DV or can sign post me to where there is legislation for people having no choice but to flee violence and return back to the UK.

poppy12345

For PIP it's not just the HRT. The 2 out of 3 years is the "pass presence test" if you haven't been in the UK for that amount of time, then i'm not aware of any other rules that would mean they could claim it. https://www.citizensadvice.org.uk/benefits/claiming-benefits-if-youre-from-the-EU/before-you-apply/check-if-you-can-pass-the-habitual-residence-test-for-benefits/

Alice_Holt

This isn't specifically related to PIP:
https://www.gov.uk/government/publications/application-for-benefits-for-visa-holder-domestic-violence
But may possibly be worth further investigation.
However, note that it states "and you have no money to support yourself" which would not be case with your friend as she is claiming UC.

For PIP the past presence test is that you have been present in GB for not less than 104 weeks in the last 156 weeks.
Exceptions apply to:
a) terminally ill claimants,
b) those granted refugee leave or humanitarian protection.

I would suggest you focus on what is meant by "humanitarian protection", and whether this can be gained by completing the above application, whether it can be applied to DV, or how else it can be obtained (possibly through the home office?).  I don't know the answer to this, but your friend could enquire via the DWP, her MP, charities helping those suffering DV, etc.

It may well be a wild goose chase, but it's the best possibility I can offer.

leftholdingthebaby123

Hi Alice, yes I think you may have a point.  She is being supported by Victim Support and I'm pretty sure the woman would write a supporting letter for my friend.  Also my friend has a Turkish Lawyer who lived near to where she used to live in Turkey and has witnessed some of the DV she suffered.  I'm sure he could write a letter that she had no alternative then to escape in the end.
Thank you.

leftholdingthebaby123

Hello Everyone,

My friend has received her Mandatory Reconsideration (MR) for failing her Habitual Residency Test.  She has letters from her support worker at Victim Support, her Turkish Lawyers letter.  She is also now socially housed in a 2 bedroom bungalow and receives UC50.  She has also now been resident in the UK since August 2020.

Can I please have clarification on the following:-

• If the mandatory reconsideration is refused you can appeal.
• You should also make a new claim even if you are challenging the decision.  This is because the benefit authority or Tribunal can only look at your circumstances at the date of the decision and not since.  You may qualify on a new claim because your circumstances have changed – for example simply living here for longer may mean you are accepted as having resided here for an ‘appreciable period.’

So she is sending the (MR) tomorrow.  My question is does she make a new claim for PIP now, or wait for the MR decision and then make a new claim? - Please see paragraph above.

Thanks for any advice.

poppy12345

Personally i don't think there's any point starting a new claim because she doesn't pass the "past test" which is to live in the UK for 2 out of the past 3 years.

leftholdingthebaby123

The PIP Rule Book States:-

What is 'Habitual residence in fact'?

The key points in deciding whether you are ‘habitually resident’ in fact are:

• You must be resident
• You must show intention to settle (not necessarily permanently) in the Common Travel Area.
• In most cases you must have been resident for an ‘appreciable period’.  How long this period has to be is not set out in the regulations, and depends on your circumstances.   Between one and three months residence is required in most cases, but it can be shorter. The stronger your intention to settle in the Common Travel Area the shorter this period is likely to be.

You may be accepted as habitually resident from your first day if you are returning to the country and you were previously habitually resident.

British citizens who have lived abroad and are returning to the Common Travel Area will still have to show that they are 'habitually resident in fact'.

I have failed the Habitual Residence Test. What should I do?

If you have been refused benefit because you failed the habitual residence test:

Find out why you failed the test, by checking the decision letter or, if the letter does not give clear reasons, contact whoever made the decision (DWP or local authority).

• You can challenge the decision, by asking for a mandatory reconsideration within one month of the decision being made.  You can contact a local advice centre or Citizens Advice Bureau for help.
• If the mandatory reconsideration is refused you can appeal.
• You should also make a new claim even if you are challenging the decision.  This is because the benefit authority or Tribunal can only look at your circumstances at the date of the decision and not since.  You may qualify on a new claim because your circumstances have changed – for example simply living here for longer may mean you are accepted as having resided here for an ‘appreciable period.’
• Check if you fit into one of the exempt categories for the habitual residence test.
• The habitual residence test applies to the claimant.  If your partner has a better chance of passing the test, they could make a new claim and include you in their claim.  However, this will not work for Universal Credit, where both partners need to make a joint claim and both need to satisfy the Habitual Residence Test

All I want an answer to is the underlined section above i.e. when should she make another application for PIP (after the MR decision or now?)  I am helping her with the MR and if she had not fled Turkey should would be dead now.  Alice-Holt said about her victim support worker and DV.

[Deleted User]

 There is absolutely no point making a new application. Ignoring the habitual residence test you still won't meet the requirements of length of residence. 

leftholdingthebaby123

Then why does it quote that she may now be habitually resident in their blog?  She was born in the UK, left at age 40 and had to return or be killed.  I am helping her with the MR atm and anything that would help me would be much appreciated.  This woman is severely disabled and needs overnight care which she is paying out of her UC50.  I don't think I've miss-read the blog I've put up, it's on the PIP website.  Can someone please say something positive or just answer when she should apply again as the MR has not yet been sent.  Once sent, should she apply again then, or wait for a decision?