Advising Migrant Groups eBulletin - September 2021

EUSS applications extension and extra-statutory payments, Best Start foods for PSIC parents of British children, shortened PPT for DLA/CDP, food pantries and more.

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In this issue

EUSS applications extension

The deadline to apply to the EU Settlement Scheme (EUSS) for EEA nationals and their family members who were already in the UK on 31 December 2020 ran out on 30 June 2021. This is known as the end of the ‘grace period’ that followed the ‘transitional period’ that ended on 31 December 2020.

There were always provisions to accept late applications to the EUSS where the Home Office decided it was reasonable to do so. However, since 30 June information from DWP and the Home Office suggests that late EUSS application will be accepted more generally and that those with existing benefit claims who need to apply to the EUSS will not automatically have their awards stopped. The DWP will continue to pay existing awards on an ‘extra-statutory’ basis and the Home Office has said that late applicant’s rights will be ‘protected’. The DWP information says that it will send out a final reminder to all it identifies as needing to apply to the EUSS in September and that they will then have a month in which to apply. Provided they do, then their rights will be ‘protected’ until that application is decided.

Best Start foods for PSIC parents of British children

Pregnant women and those responsible for young children in Scotland can get Best Start food (BSf) credits. However, to be entitled you usually have to be getting a qualifying benefit such as Universal Credit. That means if you are excluded from the qualifying benefits because of your immigration status, eg you are a ‘person subject to immigration control’ (PSIC), you can’t get BSf credits either.

Following a court case brought in England about the exclusion of PSIC parents of British children from the equivalent Healthy Start vouchers, the Scottish Government has told CPAG that they will change the BSf rules and pending that make ‘ex gratia’ payments to those excluded. That is the same as what the Westminster government has said in relation to Healthy Start vouchers. That means that if a parent would be entitled to a qualifying benefit for BSf credits and is only excluded due to being a PSIC, and their child is British, they should be able to ask for these ex gratia payments.

Shortened past presence test for child disability benefits

CPAG has brought several test cases to the English courts about the past presence test (PPT) as it applies to Disability Living Allowance (DLA). The PPT usually requires a claimant to have been present in Great Britain for a certain amount of time before they can be entitled to disability or carers benefits. Since 2013 that has been 104 weeks out of the last 152. In one case CPAG successfully argued that refugees and their families should be exempt from the PPT and the law for DLA, Personal Independence Payment (PIP), Attendance Allowance and Carer’s Allowance has subsequently been changed. More recently, CPAG successfully argued that the PPT for DLA should not have been lengthened in 2013 and DWP guidance now says the old maximum period of 26 out of 52 weeks should apply instead.

Child Disability Payment (CDP) is now starting to replace DLA in Scotland. The CDP rules are broadly similar to DLA but incorporate both the exemption of refugees and their families from the PPT, and the shortened maximum period of 26 out of 52 weeks. Draft regulations for the replacement for PIP in Scotland, Adult Disability Payment, also suggest that the shorter PPT will apply to that too when rolled out. This is good news for both those new to Scotland and those returning.

Food pantries

A network of Food Pantries is now open in and around Glasgow. These are an alternative to food banks and offer reduced price foods rather than food parcels. They can be accessed by anyone struggling to make ends meet on a low income. Those with No Recourse to Public Funds (NRPF) and Asylum Seekers can access them for free via referral for a voucher from Govan Community Project. Transport is also available to the sites.

CIH/SRC refugee housing practitioners’ guide

The Chartered Institute of Housing Scotland (CIH) and Scottish Refugee Council (SRC) have launched the latest edition of their ‘A Housing Practitioners’ Guide to Integrating People Seeking Protection and Refugees’. As the name suggests, it promotes good practice amongst those housing Refugees or those with another status following an asylum application, and includes basic information about benefit entitlements with signposts to CPAG in Scotland for more detail.

The guide is available from SRC’s practitioners' resources website page. CIH also provide other housing guidance aimed at migrant groups on their Housing Rights site.

Afghan refugees

CPAG in Scotland has started getting enquiries about the rights of Afghans being resettled in Scotland under the Afghan Relocations and Assistance Policy (ARAP) scheme. This scheme is outside the usual asylum process and includes a package of initial support via the host local authority. However, it appears that some misleading information is in circulation regarding the rights to benefits for this group.

Therefore, CPAG has produced a factsheet on the basic benefit rights for Afghans resettled under the ARAP here: Benefits for resettled Afghans. If you have any questions regarding the rights of Afghans to access benefits please contact CPAG in Scotland’s Adviceline for advisers.

Updated refugee factsheet

CPAG in Scotland Benefits for New Refugees factsheet has been updated. It covers basic benefit entitlement for those who have recently had their refugee status confirm or who have been granted Humanitarian Protection, discretionary leave or other forms of leave not subject to public funds restrictions following an asylum application. It has a little information about ‘family reunion’ but more about this and problems claiming UC can be found in an article appearing in CPAG’s Welfare Rights Bulletin in October.

Independent Food Aid Network

Following on from work undertaken in partnership by CPAG in Scotland as A Menu for Change, the Independent Food Aid Network has now produced a series of information leaflets. These ‘Cash First’ information leaflets provide information about local advice services tailored to local authority areas for those struggling to budget. In some areas, these are available in several different community languages.

Backdated CTC for refugees

As mentioned in the last BAME ebulletin, when refugees’ status is confirmed following an asylum application, the Child Tax Credit (CTC) rules allow a backdated award to the date that the asylum application was made. While Universal Credit has now replaced CTC and does not reproduce these rules, refugees may still be able to benefit from this CTC backdating. However, HMRC who administer CTC disagree and so CPAG challenged them in the High Court in England. A parallel case was also brought before the Court of Session in Scotland.

Both cases were won in the refugees’ favour but HMRC are appealing. Any refugees who may benefit from this should still make applications and challenge any refusal, and there are details about both the case and what to do on CPAG's test case webpages.

NIno problems

People are frequently told that they cannot claim or be paid benefits until they have a National Insurance number (NIno). This is not what the law says. Nothing in the law prevents someone making a claim without a NIno and meeting the NIno requirement to be paid benefit does not necessarily mean that one must have been allocated to you. The NIno requirement can be met by just applying for one and providing all the necessary information and evidence for one to be allocated, even if not actually allocated as yet. However, DWP policy is to refuse to pay benefit until a NIno is allocated.

CPAG has a current test case challenging this practice: R (Bui) v Secretary of State for Work and Pensions CO/2489/2021. You can also find template letters to challenge problems with NInos and details of DWP guidance on the CPAG's Judicial Review project webpage.

Pre-settled status - Fratila?

Last year CPAG won a test case at the Court of Appeal, Fratila, in England about the exclusion of those with only pre-settled status (PSS) under the EU Settlement Scheme (EUSS) from means-tested benefits. The DWP appealed and the case was due to be heard by the Supreme Court but then a similar Northern Irish case was referred to the Court of Justice of the EU (CJEU), so the Supreme Court put the case on hold.

It was hoped that the CJEU decision would resolve the question of PSS rights. Unfortunately it didn’t and so a final decision is now down to the Supreme Court. Currently the case has no hearing date and is listed as adjourned on the Court’s website. In the meantime, anyone who might benefit from the Court of Appeal’s decision should make claims and appeal, and there are resources on CPAG's test case pages to help with this.

Training and webinars

Here are the training courses coming up that may be of particular relevance to you;

Benefits for non-EEA nationals - 16 - 17 Nov

Benefits for EEA nationals - 23 - 24 Nov

Benefits for EEA nationals - advanced - 6 - 7 Dec

Finally, you be interested in the following webinar coming up next few month;

A day late and a dollar short: limited capability for work and its effects on universal credit entitlement - 5 October 1- 3.30pm

People with health conditions and disabilities rely on timely work capability assessments to get their full entitlement to universal credit (UC). But too often delays leave people stuck on a reduced income, or out of pocket when elements are paid from the wrong date. This experienced-level webinar provides tips, experiences and insights into getting assessments carried out and elements correctly in payment.