DWP refuse claim despite legal entitlement

[KenAlgar]

My Ghanaian wife has lived with me in the UK for 2 years.
She has suffered from multiple sclerosis (MS) for a number of years but this has been manageable.
When our son was born a year ago her condition worsened and she now has to use a wheelchair.
The MS nurse recommended she claim disability living allowance (DLA)
I researched online and discovered she is entitled to claim since lives with an EEA national (me, im British) even though her passport is endorsed "no recourse to public funds"
The DWP refused the claim saying she does "not normally live in the UK" yet over the phone they say it is because her passport is endorsed "no recourse to public funds"
I asked them to reconsider given the facts but they refused again stating the same reason.
The next stage is to go to appeal and independent tribunal which I intend to do.
All the information needed is in the Home office leaflet "no recourse to public funds, what does it mean?"
BTW her application for ILR is now with the UKBA.
Anyone had a similar experience? Am I missing something? Some educated advice would be greatly appreciated.

[mochyn]

As the passport is stamped ''no recourse to public funds'' the DWP will not allow her to claim benefits but as soon as ILR is granted then all restrictions will be lifted then she will be able to claim as the notation in the passport will be voided

[KenAlgar]

she is a family member of a UK citizen (me) and DLA is one of the exceptions to the rule and does not count as "recourse to public funds" when this is the case.
Surely therefore, she has a legitimate claim and is not in breech of her visa conditions (two year spouse visa)
Her ILR visa will have no "public funds" restriction anyway.
So perhaps you could explain to whom do the exceptions apply?

[KenAlgar]

This is where I got the information
http://www.ukba.homeoffice.gov.uk/sitec ... cfunds.pdf

[mochyn]

From the link you provided it states that ''public funds'' include Disability living allowance although later it states that an EEA national is allowed to claim but your wife is Ghanaian and therefore not entitled to claim

[KenAlgar]

From the link you provided it states that ''public funds'' include Disability living allowance although later it states that an EEA national is allowed to claim but your wife is Ghanaian and therefore not entitled to claim

May I draw your attention to page 4 paragraph a)
and also the table on page 6
The way I understand it, my wife does not need to be an EEA national, but living with one.
Seems clear to me.

[Danbrix]

Hi KenAlgar,

I am not expert on this but this what I think.

The question is what is the definition of EEA national from UKBA point of view? And I think it refers to nationals of the European Economic Area who have to come to the UK to visit, live or work. In this case British nationals will not be included and unfortunately you partner will not be entitled for DLA.

However on the other hand if the definition includes British nationals, then it is fair to look at the table on page 6 of the link. In the first column it appears that your partner may not be entitled for tax credits although you may well be eligible. Tax credits are assessed jointly and you can confirm this but you might have been already claiming child tax credit since the birth of your son. Claiming tax credits jointly is fine but you need to look at column four to get a confirmation.

Like I said I am not expert on this stuff but to avoid contradictions of column one and four, I can only think EEA national does not include Britons in this context.

[mochyn]

On what basis does the MS nurse say that your wife can claim Disability Living Allowance?
Is she aware of your wife's immigration status?
In UK law you are not an EEA citizen, you are a British citizen.
Do you have a British passport ?

[John]

The next stage is to go to appeal and independent tribunal which I intend to do.

Great, that is exactly what you need to do. After all, there is an entitlement, for the reasons you have stated.

Can I ask, whereabouts in the UK are you? You never know, someone reasonably local to you might be prepared to assist with the appeal.

By the way, the relevant legislation is in regs. 2 and 11 of The Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000. Also read para 1 of Part II of the Schedule.

In UK law you are not an EEA citizen, you are a British citizen.

No, not correct, he is both of those. That is, his wife is "A member of a family of a national of a State contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed at Brussels on 17th March 1993", and the UK did sign that agreement.

[mochyn]

John,
I am slightly confused.
If as you state there is no difference in law between an EEA or British citizen then why is disability living allowance is not made available to spouses of British citizens but made available to family members of an EEA national
Under EU law, all EU citizens have to right to live and work in member countries and to bring their family members with them.The exception being that if you live under your own country's jurisdiction ( French people living in France, British people living in the UK), your country's immigration law takes precedence
Under the Treaty of Lisbon enacted in December 2009 there was a protocol added to the Charter of Fundamental Rights of the European Union stating the EU had no rights to overturn domestic law in the UK and Poland due to pressure from the countries involved

IMHO

[John]

If as you state there is no difference in law between an EEA or British citizen then why is disability living allowance is not made available to spouses of British citizens but made available to family members of an EEA national

It is made available to spouses of British Citizens! That is the whole point.

If in doubt about that, have a good read of the regulations I linked to earlier.

[mochyn]

Having looked again at section 115 of the Immigration and Asylum Act 1999, I cannot see any reason why DLA is made available as the notation ''no recourse to public funds'' specifically denies DLA.
If I am wrong I bow to your superior knowledge

[John]

mochyn, you need to take on board that some small paragraphs in the Immigration Rules, namely 6A, 6B and 6C, effectively vary the definition of Public Funds as in para 6.

In play here is para 6B, which you will see specifically mentions section 115 of the Immigration and Asylum Act 1999.

For a link to the relevant part of the Immigration Rules, click here.

As it says in para6B :-

...... a person (P) shall not be regarded as having recourse to public funds if P is entitled to benefits specified if......

-: which is pretty clear.

[KenAlgar]

On what basis does the MS nurse say that your wife can claim Disability Living Allowance?
Is she aware of your wife's immigration status?
In UK law you are not an EEA citizen, you are a British citizen.
Do you have a British passport ?

1/ Because she has become disabled due to the progression of her MS.
2/ No, she is not aware. (I fail to see the relevance)
3/ I am a British citizen and GB is a member state of the EEA.
4/ Yes of course.

[KenAlgar]

Great, that is exactly what you need to do. After all, there is an entitlement, for the reasons you have stated.

Thanks for the reassurance John.
I will be going ahead with the appeal.

[ulanis]

May I ask what was the outcome of your case. I am in a similar situation.

Thank you

[Casa]

May I ask what was the outcome of your case. I am in a similar situation.

Thank you

This thread has been inactive since 2009. Instead of digging up a 9 year old thread, open your own topic and post there as you are unlikely to get any response from a member who is no longer posting on the forum.