S1 and pension credit

I’ve received the following and am fairly sure she’ll need a right to reside other than an S1 certificate / document - but said I would double check - thanks -

‘
My mother is a pensioner from Sweden. She lives in England and has
pre-settled status and an S1 document. It seems that if you need to
claim means tested benefits and have Pre-Settled status, you would usually be expected to prove that
you have an additional ‘right to reside’, such as being a worker or
having a family member who is a worker. She moved here after retiring
and has never worked in the UK. Can an S1 document remove the need to
prove that she has an additional ‘right to reside’ if she needs to apply
for pension credit or housing benefit?
‘

I don’t think she’ll get PC with just the S1 document because that’s related to health costs and as noted, she only has pre-settled status. She could try to use dependency on close family members to derive a right to reside from them potentially I think but I was under the impression that was something that should be checked when applying for settled/pre-settled status.

thanks Paul

twist to the tale is that - the mother is the family member of an EU national with settled status.

I think this means, as a family member of someone with settled status, she has a right to reside - and so on this basis can claim HB and PC

things have obviously changed lately - but do I have this right?

thanks

I think so.

The client would be relying on the family member for these purposes and she must also show that she is dependent on them. ‘Dependent’ is not defined in the regulations but case law has established a number of principles that include:

• They receive support from him
• The support they receive is material, which can include providing accommodation, as well as other things such as providing meals or providing care due to sickness or disability
• The support constitutes the ‘basic necessities of life’

It is important to note that it is irrelevant if there are other sources of potential support available and/or if they only became dependent once they arrived in the UK. Nor does receipt of benefits prevent them being classed as dependent.

If the above is possible, if the family member themselves ceases to have a relevant right to reside or if they cease to be a family member, then your client’s right to reside will cease also and any benefits paid as a result of their right to reside would no longer be payable. However, the period of relying on someone else’s right to reside counts towards them acquiring their own permanent right to reside after five years of continuous qualifying legal residence. This permanent right to reside is then only broken if they leave the UK for longer than two years.

As per Paul, however note that you cannot rely on a right to reside as a family member of someone with settled status. You would need to show that the family member has an EU law right themselves e.g. as a permanent resident or worker.

Sorry, wrong thread.

A non-EU husband of an EU citizen has pre-settled status and limited leave to remain. Wife has settled status. When they claim UC, he is working and has a right to reside as a worker. Two years later he is not working and neither is she- both have significant health issues (life long) and he is now claiming CA in respect of her.

I am hungry and confused. Does he need to continue to have a right to reside for entitlement to UC as a couple? It’s over a year since he worked. He may have worked for over a year and retained a right to reside as a worker without time limit in that way. What should happen if a partner loses their right to reside during the claim?

If the husband is a non-EEA national, he cannot have a right to reside as a worker at all: only the EEA national wife can do that.

His wages might be enough to make them self-sufficient, so that the wife has a right to reside as a self-sufficient EEA national and he as her family member ... despite the apparent circularity of that, the European Court considered it viable in the Kuldip Singh case.  The requirement for comprehensive sickness insurance is now satisfied by NHS “affiliation”.

But if he is no longer working, he presumably no longer has sufficient resources for them not to be a burden.

You are therefore going to need to establish a right to reside for Mrs on some other basis, perhaps a permanent right of residence based on five years’ self-sufficiency.  He will automatically piggy-back on her R2R as her spouse.

Must make note to self not to post just before lunch…

She has been in the UK since she was a child, presumably the claim has continued on the basis of her permanent residency. So at the point that he notified UC that he was no longer working, UC should have considered again their eligibility?

Thank you

I have a further complications too -

the client (who’s mother wants to apply for HB and PC) - cannot easily evidence permanent RTR - he probably has it, but this would need evidencing

the family member status would of course also need evidencing

the client is exploring evidencing permanent RTR via permanent incapacity - i.e. -

“This is known as ‘permanent incapacity’. You might have a permanent right to reside if one of the following applies:

you lived in the UK for the last 2 years before your permanent incapacity

- I have already stated, ‘be prepared for the DWP and council to mess this up’

but taken as a whole, does this have legs?

providing we can evidence his permanent RTR and then evidence family member status ...

but I don’t want to get anyones hopes up

thanks

Or perhaps she had established a permanent right of residence before the claim.

I do wish that these conversations were not happening at once in the same thread.

CA Adviser - you can’t just assume she is a permanent resident. You would have to establish it. If the wife has permanent residence, then the husband can mirror that status. If the husband has mirrored her status for 5 years, he may himself have attained permanent residence.

The wife could have attained permanent residence when she was still a child, through herself relying on her parent’s rights, or she may have attained it subsequently through her own work (or otherwise) or she could have attained it when she gave up work due to her health (see reg 5 EEA Regs).

David - If the daughter can evidence permanent residence and the mother is dependent on the daughter, then there is an argument. Who knows whether the DWP will accept it - I generally work on the basis that the DWP make decisions using some sort of system involving dice - but it works on correct application of the law if you have the right evidence.

I am not quite sure what you are getting at when you say “exploring” permanent incapacity. Who is said to be permanently incapable? The mother or the daughter? If it is the mother, it is unhelpful because she was never a worker in the UK. If it is the daughter, it could work to establish the daughter as a permanent resident however the difficulty then becomes how the elderly mother is able to show dependency upon the permanently incapacitated daughter.

thank you. re. -

I am not quite sure what you are getting at when you say “exploring” permanent incapacity. Who is said to be permanently incapable? The mother or the daughter? If it is the mother, it is unhelpful because she was never a worker in the UK. If it is the daughter, it could work to establish the daughter as a permanent resident however the difficulty then becomes how the elderly mother is able to show dependency upon the permanently incapacitated daughter.

it’s the daughter/son exploring attaining permanent RTR through incapacity - though there may be other ways to establish permanent RTR

and I acknowledge your point about family member dependancy upon a permanently incapacitated EU national

- i’ll work on it, and see if I can establish a strong permanent RTR for the son/daughter by other means

I’ve got another approach - the son is now attempting to classify his mother as a self-sufficient person with comprehensive sickness insurance - and claim HB and PC on this basis - she has a small foreign pension, and a S1 certificate relating to health costs
It’s always been my understanding that this RTR allows you to be legally resident, but not to be a burden on the state (ie a claimant) - do I have this wrong?
Can this be the basis for claiming HB and PC?
thanks

There’s no reason in principle why the mother couldn’t be self-sufficient. The problem however is that the only reason she is trying to claim self-sufficiency is in order to claim benefits to pay her rent and basic living costs. That rather tends to suggest she is not self-sufficient.

The issue of unreasonable burden is addressed in AMS v SSWP (PC) [2018] AACR 27; [2017] UKUT 381 (AAC). It is unlikely that a claim of self-sufficiency by the mother in your case would survive that decision.

The requirement for ‘comprehensive sickness insurance’ is no longer relevant per VI v HMRC (Case C‑247/20).

(And ironically, the decision in the AMS case was therefore wrong all along for the reason that the claimant had plainly established permanent residence through self-sufficiency by the date of the decision and the lack of comprehensive sickness insurance should never have been held against her as at para [2])

For future reference, think we have resolved this by the son getting hold of a good NI record, via his HMRC account. Which I should have thought about, and gives him permanent RTR.