Benefits COPY Flashcards
Habitual residence test was introduced in…
1994
Social Security (Habitual Residence) Amendment Regulations 2004 require…
people who want to claim certain benefits to pass an additional “right to reside” test. This means there is a two step test: 1) right to reside, 2) wider habitual residence
The full two part test applies to…
means assessed non-contributory benefits - income based JSA, income related ESA, HB, UC
The habitual residence test (alone, w/o right to reside test) applies to…
DLA, PIP, Carer’s Allowance, Attendance Allowance.
Also contributory benefits: contribution-based JSA, contribution-based ESA
Employment and Support Allowance is…
money for people who have illnesses or disabilities that make it hard for them to work
Before Work Capability Assessment: £58.90/w if under 25, £74.35 if over.
After WCA: £74.35 - £113.55
The Benefit Cap is…
a limit to the total amount in some benefits that working-age people can receive, even if their full entitlement would otherwise be higher.
Can be exempt (eg if claiming PIP).
Cap varies depending on whether single/couple, and whether in Greater London. Between £257.69/w - £442.31 /w (£13,400 - 23,00/y).
The Bedroom Tax is…
a cut in HB or UC housing element if you’re a) working age b) classified as having a spare room, and c) a council or HA tenant. AKA the under-occupancy charge. Can lose 14% for 1 spare room, or 25% for 2 spare rooms.
EU national who is a QP + the HR test
EU nat who is QP is exempt from the HR test entirely. this means they don’t have to pass RTR test either.
Same exemption applies to their FMs.
This is under The Universal Credit Regulations 2013
In practice they need to demonstrate that they are a QP
Who is exempt from the HR test?
EU nats who are QPs and their FMs, refugees, those granted DL, those with HP. Also, workers / SEPs who have gained PR as a person who has ceased activity, their FMs, and anyone who has gained PR following a death.
Under the Universal Credit Regulations 2013
Permanent right to reside and HR test
In some cases PR means person is exempt from HR test (and RTR test) - where gained “early” as a worker/SEP who ceased activity (or their FM), or due to death.
In other cases, PR is a RTR.
Pre-settled status does not meet the RTR test, because of
Social Security (Income-related Benefits) (Updating and Amending) (EU Exit) Regulations 2019.
Regulation 9 of the Universal Credit Regulations 2013 says that there are a number of residence statuses that do not count, including:
Initial right of residence for three months
Jobseeker (and FM)
Zambrano carer
EEA residence rights that meet the RTR test:
Student
Self-sufficient person
Worker or self-employed person who has ceased activity
Family member of the above
The classic test for habitual residence, which for these purposes is synonymous with “ordinary residence”, comes from
the House of Lords case of R (Shah) v London Borough of Barnet [1982] UKHL 14:
“ordinarily resident” refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration.
There is, of course, one important exception. If a man’s presence in a particular place or country is unlawful, e.g. in breach of the immigration laws, he cannot rely on his unlawful residence as constituting ordinary residence […] And there must be a degree of settled purpose.
Fratila and Tanase v SSWP [2020] EWHC 998 (Admin)
the High Court rejected the argument that excluding pre-settled status from being a qualifying right to reside is discriminatory on the ground of nationality. The Child Poverty Action Group, representing the claimants, said that it will appeal the decision.
