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www.cpag.org.uk
Essie Rashidschi
September 2014
The past presence, the future: changes to residence and presence tests
Overview
• ‘Living in the UK’ – JSA, child benefit and child tax credit
• Right to reside changes – minimum earnings threshold for workers
• Right to reside changes – retaining worker status and jobseekers
• Housing benefit for jobseekers
• Residence and presence tests for disability and carers’ benefits
• Brief mention of other changes
JSA and ‘living in’ the UK
JSA Regulations 1996 amended from 1 January:
•Not habitually resident (so entitled to nil income-based JSA) if not lived in UK, Ireland, Channel islands or Isle of Man for past 3 months
•Still also need to be Habres and have a right to reside
•Applies to all claimants (regardless of nationality)
•Transitional protection for claims made or treated as made before 1/1/14
‘Living in’ – exceptions and arguments
• Still exempt from habitual residence test if:
− EEA worker
− EEA self-employed
− refugee
− etc..
• ‘Living in’ given ordinary meaning – temporary absences may not prevent a claimant from satisfying the test.
• Can arguably use the EU co-ordination rules – ibJSA is a ‘special non-contributory benefit’, so can aggregate periods of residence in other EEA states
‘Living in’ – other benefits
• Housing benefit already an issue for EEA jobseekers (more on this later)
• Council tax reduction can still be claimed (may be hard to show that exercising rights as a workseeker, and must show habitual residence)
• Child benefit and child tax credit can still be claimed as a jobseeker – ‘living in’ test applies from 1 July 2014
• Regulations laid 10 June (apologies for supplementary slide…)
CB/CTC
CB(G) & the CTC (Res) (Amend) regs 2014. SI.No.1511/2014
jobseekers must be in UK for 3 mths, before claiming CB & CTC
Exception:
• If entered UK before 1.7.2014.
• Worker/self-employed/retained status/Croatian registered workers/family member
• Returns to UK after an absence of less than 52 wks, but was ordinary resident before for 3 months.
Housing benefit and jobseekers
• From 1 April, if your only status in the UK is as an EEA jobseeker you cannot claim housing benefit (HB)
• Those EEA jobseekers already getting HB protected until either JSA or HB claim ends
• Other EEA nationals can still get HB if pass HRT, eg those with retained worker status
• If awarded JSA for period from before 1 April, then HB can be paid
Minimum Earnings Threshold
• DWP and HMRC have produced new guidance for their decision making about who is an EEA worker or self-employed person
• The guidance sets out a Minimum Earnings Threshold (“MET”) test
• Pass the MET if earning enough to pay NI contributions (£153 pw) for the last 3 months
• If don’t pass the MET a “closer examination” is undertaken to determine whether your work is “genuine and effective”
Jobseeker and retained worker status
• EEA Regs 2006 amended from 1 January:
−Lose jobseeker status after 182 days, and
−Do not retained worker status as involuntary unemployed after 6 months if were working for at least a year, unless
−can provide “compelling evidence” that looking for work and have a “genuine chance of being engaged”(reg 6(2)(b) & (7))
−Do not retain worker status as involuntary unemployed after 6 months if were
working for less than a year (reg 6(2A))
Jobseeker and retained worker status
• Periods before 1 January ignored
• Change does not affect retained worker status on basis of illness/accident
• DWP has provided guidance as to what “compelling evidence” might be..DMG14/15
• If lose or no longer retain status, lose JSA entitlement (and anything else the status gives you, eg HB, CB, CTC, etc)
• Might you have another status?, eg primary carer of child
So what is this compelling evidence?
• where the claimant has provided reliable evidence that they have a genuine offer of a specific job…..the relevant period can be extended until job starts or is due to start.
•
• where the claimant can provide proof during the relevant period that a change of circumstance has given them genuine prospects of employment and as a result they are awaiting the outcome of job interviews.
• See DMG 14/15
Jobseeker status – stop press
• Further amendments from 1 July 2014
• Inserts “condition C” for jobseekers “where relevant” – must have period of absence from UK
• Condition C applies if: − have had retained worker status for 6 months, or
− Had jobseeker status for 182 days, and
− Haven’t been absent from UK for 12 months
• This means: − If lose retained worker status or jobseeker status after 6
months/182 days,
− cannot attain jobseeker status again unless have been absent from UK, and
− if absence for less than 12 months then need “compelling” evidence of seeking/getting work
Disability and carers’ benefits
• New residence and presence tests introduced on the same day as PIP
• Limited transitional protection for those getting one of the following on 8/4/13:
− DLA
− AA
− CA
• No changes to rules about ‘persons subject to immigration control’ (PSICs) – most cannot claim
• Exceptions for sponsored migrants and family members of EEA nationals – SEEK IMMIGATION ADVICE
Residence and presence – UK law
• Claimant must be present in Great Britain
• Must have been present in GB for two of the last three years (unless terminally ill)
• Must be ‘habitually resident’ in the UK, Ireland, Channel Islands or Isle of Man
• PIP paid for the first 13 weeks of a ‘temporary absence’ from the UK
• Extended to 26 weeks if the claimant is abroad solely for medical treatment
• Certain types of worker are treated as present in the UK
Residence, presence and EU law
• Can only get CA, AA, DLA care and PIP daily living components if the UK is the ‘competent state’ to pay sickness benefits under the EU co-ordination rules
• EU law can also help a claimant meet residence and presence tests
• Claimant is exempt from the past presence test and can potentially export benefit if there is a ‘genuine and sufficient link’ to UK social security system
• Even if this doesn’t apply, could use the ‘principle of aggregation’ in the co-ordination rules…
Other changes
• End of A2 restrictions
• Accession of Croatia and restrictions on access to UK labour market
• End of 42 day rule for PSICs if funds temporarily disrupted
• Revised Scottish Welfare Fund guidance −Makes clear that EEA nationals not excluded just
because do not have a right to reside for benefits
−PSICs are excluded
• Updated HRT exempt groups for MTBs
Useful resources
• CPAG’s Welfare Benefits and Tax Credits Handbook 2014/15
• CPAG’s Benefits for Migrants Handbook (Autumn 2014)
• CPAG’s Welfare Rights Bulletin
• Social Security Legislation
• BME project ebulletin
• AIRE Centre - www.airecentre.org
• Positive Action in Housing
• Scottish Refugee Council