Help for Claiming PIP on pre settle status

[lemarlemar121]

Hi. I have claimed PIP. I have severe epilepsy and moderate learning disability.

But as I have pre settle status as close family member of Eu citizen they have refused my claim by saying I don’t have legal rights to reside in U.K.

Are they right to refuse my PIP claim because of pre settle status?
Are they right that I don’t have right to reside in U.K. despite I have pre settle status?

What other benefits can I claim with pre settle status if I can’t claim PIP?

Thanks

[secret.simon]

I don’t have legal rights to reside in U.K.

Are you sure they said that? They may have said that you are not habitually resident in the UK.

As a general rule, you can't apply for benefits within three months of arriving in the UK. After three months of arrival in the UK, you can claim to be "habitually resident" in the UK.

So, have you resided in the UK for three months at least?

Even if you have resided in the UK for three months or more, not all legal residents are entitled to benefits.

For PIP, Citizens' Advice lists the following requirements for you to meet.

If you’ve lived outside of the UK
You’ll need to give evidence to show the UK, Ireland, Channel Islands or Isle of Man is your main home and you plan to stay. This is known as being ‘habitually resident’.

Check how to prove you’re habitually resident.

You must also have lived in Great Britain for 2 out of the last 3 years. Great Britain is England, Wales and Scotland. It doesn’t include Northern Ireland.

Your time spent in Great Britain doesn't need to have been in one go. For example, you could have lived in England for 1 year, the USA for 1 year and Wales for 1 year.

If you haven’t lived in Great Britain for enough time
You might be eligible if you’ve worked or claimed benefits for 2 out of the last 3 years in the EU, Norway, Switzerland, Iceland or Liechtenstein.

The rules in this area are complicated and it’s best to get advice before you apply. You can get help from your nearest Citizens Advice.

You might also be eligible if you’ve got a ‘genuine and sufficient link’ to the UK.

You have a ‘genuine and sufficient link’ if any of these apply:

you’ve lived in the UK for nearly 2 years
you work or are self-employed in the UK
you have a family member who works or is self-employed in the UK
you have close family in the UK who you rely on for care and support
you get certain benefits in the UK
The rules in this area are complicated and it’s best to get advice before you apply. You can get help from your nearest Citizens Advice.

[JB007]

As a general rule, you can't apply for benefits within three months of arriving in the UK. After three months of arrival in the UK, you can claim to be "habitually resident" in the UK.

It's at least two years for PIP. I looked back at their posts but there seems to a few people using the username.

[vinny]

See also Court of Appeal bombshell: EU citizens with pre-settled status CAN claim benefits.

Fratila & Anor v Secretary of State for Works and Pensions & Anor [2020] EWCA Civ 1741 (18 December 2020)

[secret.simon]

See also Court of Appeal bombshell: EU citizens with pre-settled status CAN claim benefits.

Fratila & Anor v Secretary of State for Works and Pensions & Anor [2020] EWCA Civ 1741 (18 December 2020)

I have pre settle status as close family member of Eu citizen

In this case, @vinny , I suspect the OP is a non-EU citizen. So, not sure if that judgment would apply to them.

Also, reading the DWP summary of the judgment, it seems that the judgment applies only to people resident in the UK before 31st December 2020, which the OP likely wasn't, going by their previous posts.

And I understand that the DWP is appealing this judgement to the UK Supreme Court anyway.

In any case, had the OP even resided in another EEA member-state for 2 years, he would be eligible for PIP payments. But from the previous posts under that username, I suspect that that is not the case.

[JB007]

See also Court of Appeal bombshell: EU citizens with pre-settled status CAN claim benefits.

Fratila & Anor v Secretary of State for Works and Pensions & Anor [2020] EWCA Civ 1741 (18 December 2020)

That was for the welfare benefit called Universal Credit and that is nothing like the requirments of the six welfare benefits it replaces (with the exception of Income Based Jobseekers)..

For PIP, British citizen cannot arrive in the UK and have PIP for at least two years.

[JB007]

See also Court of Appeal bombshell: EU citizens with pre-settled status CAN claim benefits.

Fratila & Anor v Secretary of State for Works and Pensions & Anor [2020] EWCA Civ 1741 (18 December 2020)

I have pre settle status as close family member of Eu citizen

In this case, @vinny , I suspect the OP is a non-EU citizen. So, not sure if that judgment would apply to them.

Also, reading the DWP summary of the judgment, it seems that the judgment applies only to people resident in the UK before 31st December 2020, which the OP likely wasn't, going by their previous posts.

And I understand that the DWP is appealing this judgement to the UK Supreme Court anyway.

In any case, had the OP even resided in another EEA member-state for 2 years, he would be eligible for PIP payments. But from the previous posts under that username, I suspect that that is not the case.

Everything you have said: plus that appeal court judgement was only for mean tested benefits and PIP is not a means tested benefit: PIP is residency based benefit. Council Tax Reduction doesn't look like it was included either in that judgement.

However as you have said, the UK was granted permission to take this the Supreme Court. The two EU citizen claimants on pre-settled status, lost the first case, won on appeal but not all three judges agreed and now it goes to the Supreme Court.

https://www.gov.uk/government/publicati ... atila-case



Although what a lot of people don't seem to realise is that the UK means tested benefits have been made less generous than some other EU countries now.
e.g. When Tax Credit welfare benefit claimants were delighted to find that the money they were given was not going to be reduced after all, the UK quietly added the reductions to the Universal Credit welfare payment instead. And exisiting Tax Credit claimants will have their claim end in due course, and have to look at claiming Universal Credit instead.
Universal Credit also has different requirements and regulations than five of the six means tested benefits it replaces.

[JB007]

Also, reading the DWP summary of the judgment, it seems that the judgment applies only to people resident in the UK before 31st December 2020, ...

Now that I have re-read the gov.uk notes on that High Court appeal; about the EU citizens who only had pre-settled status and wanted to be given means tested benefits from the UK's welfare state; it states that those on pre-setttled status had to make a claim before the end of the transition period.

If this decision were to be implemented, it would mean that those with pre-settled status, who are present in the UK, (and provided that they made a claim prior to the end of the transition period,) have a qualifying right to reside that allows access to means-tested benefits in the same way as those with settled status do.
https://assets.publishing.service.gov.u ... -02-21.pdf

[JB007]

It's also quite strange as it appears from the court notes, that neither of those two Romaian citizens in that case, could have had UK benefits under the EU Regulations as neither had the right to reside to allow access to UK means tested benefits?

[JB007]

Also, reading the DWP summary of the judgment, it seems that the judgment applies only to people resident in the UK before 31st December 2020, ...

Now that I have re-read the gov.uk notes on that High Court appeal; about the EU citizens who only had pre-settled status and wanted to be given means tested benefits from the UK's welfare state; it states that those on pre-setttled status had to make a claim before the end of the transition period.

If this decision were to be implemented, it would mean that those with pre-settled status, who are present in the UK, (and provided that they made a claim prior to the end of the transition period,) have a qualifying right to reside that allows access to means-tested benefits in the same way as those with settled status do.
https://assets.publishing.service.gov.u ... -02-21.pdf

I'm reading this that the stay of execution given to the UK until 26 February 2021; given in the appeal court in December 2020; is now extended until the Supreme Court determination?
https://cpag.org.uk/sites/default/files ... 0SSDWP.pdf



Thinking on, the case is about means tested benefits and the welfare benefit called Tax Credit was never a means tested benefit: not sure that benefit would be covered even if the EU citizens eventually win and can have UK means tested benefits on Pre-Settled status?

[secret.simon]

I'm reading this that the stay of execution given to the UK until 26 February 2021; given in the appeal court in December 2020; is now extended until the Supreme Court determination?
https://cpag.org.uk/sites/default/files ... 0SSDWP.pdf

Thank you for keeping us posted on this front. I could not find this case listed on the UK Supreme Court website. I presume that, like a lot of activities impacted by the Covid pandemic, that is also running behind schedule.

[lemarlemar121]

Thank you all for advice and comments. The claimant is none Eu with pre settle status who was living in another Eu country for five years.
They haven’t taken his other Eu country residency in account.
He has gone for mandatory reconsideration but as you all mentioned I don’t think it will succeed.

[JB007]

Hi. I have claimed PIP. I have severe epilepsy and moderate learning disability.

But as I have pre settle status as close family member of Eu citizen they have refused my claim by saying I don’t have legal rights to reside in U.K.

You can read about "Right to Reside"
https://www.turn2us.org.uk/Your-Situati ... -to-reside

[JB007]

I'm reading this that the stay of execution given to the UK until 26 February 2021; given in the appeal court in December 2020; is now extended until the Supreme Court determination?
https://cpag.org.uk/sites/default/files ... 0SSDWP.pdf

Thank you for keeping us posted on this front. I could not find this case listed on the UK Supreme Court website. I presume that, like a lot of activities impacted by the Covid pandemic, that is also running behind schedule.

Seems there is a case in the ECJ and all this could take years now.

[secret.simon]

Could you link to the ECJ case or any publicly accessible articles referencing please? I could not find any cases relating to it on the ECJ website.

[JB007]

Could you link to the ECJ case or any publicly accessible articles referencing please? I could not find any cases relating to it on the ECJ website.

I was hoping you would be able to find it I read about it on rightsnet, regarding a claim made in NI by those with only pre-settled status, that was then referred to the ECJ.

[JB007]

Could you link to the ECJ case or any publicly accessible articles referencing please? I could not find any cases relating to it on the ECJ website.

I was hoping you would be able to find it I read about it on rightsnet, regarding a claim made in NI by those with only pre-settled status, that was then referred to the ECJ.

I found this on the freemovement site, which refers to the Supreme Court and the ECJ (via NI)
https://www.freemovement.org.uk/supreme ... -benefits/

If they Supreme Court does decide to wait for the ECJ, the stay (not paying benefits) could last until the ECJ decides (years). Although as I said before, some EU countries pay move benefit money that the UK's Universal Credit does now.

[JB007]

Could you link to the ECJ case or any publicly accessible articles referencing please? I could not find any cases relating to it on the ECJ website.

@secret.simon It was this case for NI.
https://www.lawcentreni.org/news/europe ... u-citizens

From a blog I found this number CJEU Case C-709/20 for the NI case and there has now been a judgement.


This article talks about both cases; NI and England.
https://theconversation.com/over-2-mill ... ext-164462

Please delete the links if they are not allowed.

[JB007]

The Court of Justice said that CG was only able to claim equal treatment if her residence complied with EU law (which it did not). Otherwise, economically inactive EU citizens might become an “unreasonable burden” on the state. It made no difference that CG had pre-settled status because it was not granted under EU law and imposed a lower hurdle than being a qualifed person.

https://www.freemovement.org.uk/denying ... -breached/

[JB007]

@secret.simon This appears to be Supreme Court details for Fratila and another
https://www.supremecourt.uk/cases/uksc-2021-0008.html

The Supreme Court have ajourned while they waited for this ruling from the CJEU on a similar case, which NI applied to the CJEU before 31 December 2020.

[JB007]

The government details for Housing Benefit staff, while the UK wait for the Supreme Court about EU welfare claimants and their family members. Dated 27 May 2021.

Introduction

...
2. The amendments made by SI 2019/872 provided that pre-settled status granted to European Economic Area (EEA) nationals and their family members was not sufficient in itself to satisfy the right to reside for the purposes of the habitual residence test.
....

13. Decision makers should stay making decisions on claims to HB in respect of any case where the issue involves the refusal of benefit due to the claimant having no right to reside other than their pre-settled status (leave to remain), and the application for HB was made prior to the end of the transition period. If the claimant with pre-settled status has an alternative right to reside then their application should proceed as usual.

14. If a claimant applies for a revision or supersession of a disallowance decision made on an application made before 31 December 2020, on the grounds that the Court of Appeal decision means that they are entitled to benefit, the Decision Maker should stay making a decision in response.

15. The claimant should be notified that the decision maker has decided to use the staying power and so will not make a decision on the claim (or in response to the application for revision or supersession) until the result of the Supreme Court judgment is known.

16. See paragraphs 7.960 – 7.969 of Chapter C7 of the HB guidance manual for more advice on staying cases.

17. There is no right of appeal against a decision to stay.
https://www.gov.uk/government/publicati ... atila-case

Interestingly, there are no more new claims for Housing Benefit, unless they (and their partner) are over UK state pension age. Universal Credit has replaced HB for those or working age (below UK state pension age).

Some of working age might still be on Housing Benefit atm, while they wait to be moved to Universal Credit.