Advising BME Communities e-bulletin November 2018 | CPAG

Advising BME Communities e-bulletin November 2018

Date: 
23 November 2018

Sign up to our e-bulletins here

In this issue:
UC full service: residence and immigration issues

At the time of writing, all jobcentre areas in Scotland except those in Edinburgh, West Dunbartonshire and parts of Glasgow are now ‘full service’. The remaining jobcentres will become full service by 5 December 2018 at the latest. This means that nearly anyone of working age, including both European Economic Area (EEA) and non-EEA nationals, who needs to make a new application for financial help because they are on a low income has to claim universal credit (UC) and not the old means-tested benefits or tax credits.

As the roll-out of the UC full service has progressed, CPAG in Scotland has been getting an increasing number of enquiries about how UC entitlement is affected by residence and immigration conditions. For UC, the rules are basically that the claimant(s) must:

  • Not be a ‘person subject to immigration control;
  • Pass the ‘habitual residence test’ (HRT), which includes having a right to reside

If the claimants are a couple, they both need to meet the residence and immigration conditions individually. If one of them doesn’t, UC can still be paid to the other but only at a single person’s rate.

CPAG in Scotland has been hearing a number of recurring problems for claimants when claiming UC, especially in passing the HRT. These include:

  • UC refused because the claimant has not yet been in the UK for 3 months – UC has no such rule, unlike jobseekers allowance (JSA) and child tax credit (CTC) which it replaces;
  • UC not taking account of HRT decisions made about old means-tested benefits – while the old decisions are not binding on UC, they are good evidence that someone might still pass the HRT;
  • Those with only a right to reside as an EEA jobseeker cannot pass the UC HRT – this is different to the rules for JSA and CTC, but UC still need to check in case someone has another type of right to reside;
  • Those with a ‘derivative’ right to reside as the primary carer of a child of an EEA worker in education refused UC if would be required to look for work - see last ebulletin for more details;
  • A general lack of awareness of more complex rules such as when an EEA national retains worker status or when someone acquires a permanent right to reside;
  • If UC is refused, the claimant not being able to access their online account to see the decision, making it difficult to challenge it

If anyone is refused UC due to them not meeting the immigration or residence conditions, as highlighted in the last ebulletin, any old means-tested benefits or tax credits that they were getting should continue to be paid provided they still meet the conditions for those benefits.

Any adviser who needs help dealing with a UC claim affected by residence or immigration conditions should contact CPAG in Scotland’s advice line.

BME Political Shadowing Scheme

The Coalition for Racial Equality and Rights (CRER) run a political shadowing scheme. Applications to the scheme are currently open. Details are as follows:

For over ten years, CRER has operated a BME Political Shadowing Scheme, which aims to address and challenge the under-representation of Black and minority ethnic groups in elected office and in the wider political arena in Scotland. Through this programme, participants are given bespoke training on Scottish and UK politics, equalities, campaigning and lobbying, and the media. This is followed by an opportunity to shadow a Member of the Scottish Parliament or a city councillor, providing valuable hands-on experience in the world of Scottish politics.

The scheme is open to all BME individuals who want to gain political experience, further their understanding of Scottish politics, advocate race equality issues, and ultimately address the under-representation of BME groups in elected office.

The scheme is free for participants and requires a time commitment of approximately two days per month over a six month period.

The deadline for applying to this scheme is Monday 26th November 2018.

Amnesty campaign on children’s rights

Amnesty International have started a campaign to stop the Home Office applying fees of over £1000 for children wanting to assert their right to apply for British Citizenship. Similar to the problems faced by the ‘Windrush Generation’, children who may have the right to apply for British Citizenship because they have lived in the UK for all or most of their lives may find access to essential services such as the NHS, housing or education blocked if they cannot afford the application fee. More details of the campaign can be found below.

Home Office: Stop blocking children's rights

Brexit

While the rights of EU citizens post-Brexit are as yet unconfirmed, a number of agencies have produced information and are holding events for those who may be affected:

  • Civil Society Brexit Project have produced a set of factsheets setting out the basics of EU rights now and what they might be post-Brexit
  • EU Citizens Rights Project Scotland has produced some leaflets on EU rights pre-and post-Brexit in Romanian, Polish, Latvian and Spanish
  • EU Citizens Rights Project Scotland are holding a free event ‘Advice and information on Brexit for EU citizens’ in Glasgow on 24 November

Note that CPAG has not been involved in producing any of the above but will publish more detailed information on EU nationals’ rights to benefits once any agreements are finalised.

Refugees and the past presence test

As reported in the last ebulletin, despite CPAG winning a test case over two years ago, refugees, those granted humanitarian protection and their families are still being refused disability and carers benefits because of the ‘past presence test’. This is the requirement to have been in Great Britain for at least two out of the last three years before you can qualify for disability living allowance, personal independence payment, attendance allowance or carer’s allowance, which was found to discriminate against such claimants. Both legislation and guidance were changed in light of CPAG’s test case victory to exempt refugees, those granted humanitarian protection and their families from the test.

CPAG in Scotland has been continuing to raise cases with the DWP where the test is still being wrongly applied. While the problem can often be resolved by asking for a ‘mandatory reconsideration’, having to go through this process leads to delays and hardship for vulnerable claimants. With the roll-out of the UC full service, it can also mean that claimants who would otherwise be exempt from having to look for work because they are full-time carers, are forced to do so or risk sanctions.

DWP have issued new guidance and reminders to their staff but as yet their IT has not been updated. It is not yet clear whether this interim ‘fix’ has improved the claims process and CPAG would like to hear of advisers’ and claimants’ experience either way. CPAG in Scotland can also help escalate individual cases if advisers can provide details with the claimant’s permission. Cases can be referred via:

Caselaw: genuine prospect of work and new enterprise allowance

In a recent Scottish jobseeker’s allowance (JSA) case, a Judge at the Upper Tribunal found that an Estonian national’s participation in the ‘New Enterprise Allowance’ (NEA) scheme was relevant when considering whether the claimant passed the ‘genuine prospect of work test’ (GPOW).

The claimant was considered by the DWP to only have a right to reside as an EEA jobseeker and so the GPOW was applied after they had been claiming JSA for 91 days. The claimant argued that as they were still participating in the NEA (a DWP scheme which provides 26 weeks of support to assist those who want to set themselves up as a self-employed person), they should be exempt from the GPOW altogether. The Judge rejected this argument but held that participation in the NEA was relevant in determining whether the claimant was actually seeking and had a genuine chance of finding work. In the claimant’s case, the Judge found that their full participation in the NEA meant they did pass the GPOW and as such they continued to have a right to reside as an EEA jobseeker which entitled them to JSA.

While this was a win for the claimant, it is CPAG’s respectful opinion that the Judge overlooked an important fact in this case. As previously held by the Upper Tribunal (see for example R(IS)6/00 and TG v SSWP [2009] UKUT 58 (AAC)), someone who is taking steps to establish themselves in self-employment has a right to reside under EU law as a self-employed person. It would seem that participation in the NEA would be taking such steps. If so, the claimant was correct that they should have been exempt from the GPOW, because they were someone with a right to reside as a self-employed person, not a jobseeker or someone with retained work status to whom the GPOW applies. Also, as a self-employed person they would have greater rights than as a jobseeker, including entitlement to housing benefit from which EEA jobseekers are excluded.

This decision emphasises the need of advisers and tribunal representatives to fully explore the multiple alternate rights to reside which EEA claimants may have, especially given the different rights to benefit they may provide. While tribunals are an inquisitorial process, Judges are not obliged to consider any issue not raised by the claimant or their representative, although they do also have the discretion to consider matters not raised where relevant.

EG v SSWP [2018] UKUT 285 (AAC)

Publications

The latest Benefits for Migrants Handbook 10th Edition is now available to buy. It's the complete and definitive guide to social security entitlement for people who have come to, or who are leaving, the UK. With migrants’ rights constantly under discussion, it can be hard to keep up with what has actually changed. Our unique handbook helps you to navigate the full complexity of the immigration and benefit rules, and provides the definitive guide to social security entitlement for people who have come to, or who are leaving, the UK

To assist you in understanding the increasingly complex rules on who has a right to reside for social security benefits, we have produced an innovative Right to Reside A2 Flowchart 2018/2019. Designed for ease of use, the poster guides you through the questions you need to ask to determine whether someone has a right to reside and leads you towards the right answer. It should be used in conjunction with Benefits for Migrants Handbook 10th edition.