Pension Credit refused

[Mazzeppa]

Perhaps someone had similar situation and could clarify this issue for me. I am a EU permanent resident since 2001. I live in the UK for more than 20 years. My mother who is also an EU citizen came to live with me in the UK last year. She always have been a housewife and never worked in her life. My father died when I was child and she received state pension until my and my brother became over 18. As she reached the pension age in 2012, in January this year she applied for pension credit. The DWP decision was that she has not right to reside and that right can not be derived from me. As a I have PR, does she have the right to reside and being seen as a habitual resident ? Thank your for any comment.

[el patron]

I would have thought if she lives with you in your household she would benefit from derived rights consequent from your PR. Have a read at the case of Pedro, may be of assistance to you - http://www.bailii.org/ew/cases/EWCA/Civ/2009/1358.html

[rosebead]

Home Office is wrong. Your mother definitely has a right to reside as your family member, as long as she is dependent on you.

[Mazzeppa]

Thank you El Patron and rosebead.

It is not the Home Office that is saying she has no right to reside, it is the Pension Service.

[rosebead]

I missed that bit. Still, the DWP is wrong. Your mother, if she is dependent on you, does have a right to reside. Furthermore, if you are economically active, or got PR as a worker who had ceased activity (incapacity, retirement, etc), she skips the Habitual Residence Test.

[Obie]

Your mother, if she is dependent on you, does have a right to reside.

That is the question. You mother, if she is dependent on you.

It is sweeping to say the DWP was wrong, as there is no evidence from O P'S post that her mother was ever dependent in her.

[el patron]

Living in the household of the family member equates to satisfying dependency as I recall from a social security commissioners decision

[Obie]

Living in the household of the family member equates to satisfying dependency as I recall from a social security commissioners decision

I accept in some circumstances it may well do.

If the person is provided her essential by the owner of the household , who has primary authority over it and the person is living under her roof then yes. Otherwise we fall into regulation 8 direction, which as we know, does not confer automatic rights.

[rosebead]

DWP is often wrong and they were wrong to blanketly say that OP's mother does not derive any rights from the OP, because it all depends on the circumstances which I doubt DWP customer service asked the OP. Judging from OP's account of his mother's history, a housewife who has never worked and a widow, it was natural to assume there was a good chance she was dependent on her son for income. Perhaps OP could tell us if that's the case.

[Petaltop]

Your mother, if she is dependent on you, does have a right to reside.

That is the question. You mother, if she is dependent on you.

It is sweeping to say the DWP was wrong, as there is no evidence from O P'S post that her mother was ever dependent in her.

If she is dependant on her son then she wouldn't need to ask another EEA country for welfare.

[Obie]

Well I don't agree with Rose's views.

The applicant who assert that he or she has rights, is required in law, to demonstrate that on a balance of probabilities, he or she meets that conditions, and provide documentary or other form of evidence to discharge the burden of proof placed on her.

It follow from the case of Lebon, that the fact that she is receiving welfare, is not determinative of the case.

[el patron]

Current decision makers guide reads -
Meaning of “dependent”
072901 An Upper Tribunal Judge has analysed the European Union case law on the meaning of “dependent” in this context. He summarised that case law(1) as finding that(2)
1. a person is only dependent who actually receives support from another
2. there need be no right to that support and it is irrelevant that there are alternative sources of support available
3. that support must be material, although not necessarily financial, and must provide for, or contribute towards the basic necessities of life.
1 Case C-316/85, Centre Public D’Aide Sociale de Courcelles v Lebon; Case C-2000/02,
Chen v Secretary of State for the Home Department; Case C-l/05, Jia v Migrationsverket; 2 CIS/2100/07

The case CIS/2100/07 is critical in cases such as the OP recounts. Commissioner Jacobs at para 29 stated -

"Although support must be ‘material’ it need not necessarily be financial. It could, for example, take the form of the provision of housing, clothing and food...."

[Obie]

I am not sure I said anything contrary to above , did I ?

[el patron]

I am not sure I said anything contrary to above , did I ?

Indeed not Obie!

Though I thought referring to the decision makers guidance would assist the OP in challenging the refusal

[rosebead]

The DWP claims process operates quite a bit differently to Home Office applications. These days you phone the DWP to make a claim and have a two-way discussion with them involving questions and answers on both sides to establish the basis for a claim. I know this because I've done it many times on behalf of people. That's why I think it was wrong for the DWP call centre to dismiss the OP without establishing whether his mother was dependent and therefore might have the basis for a claim. Somehow I doubt the DWP staff member did that as often they are poorly trained in my experience.