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

CPAG Advice line