virginiadare

Hi there,

I thought I would ask a few questions on here and possibly hear from some others as everytime I go to the Social Security Agency they really haven't a clue how to advise me.

To cut a long story short. I am a UK citizen born and raised in the UK married to a USA citizen. I was on a 1 year internship in the USA when I met my husband in 2005-2006. We married in the USA and applied for a UK spouse visa for him to return to the UK with me. We returned to the UK in 2006 and both worked here for 18 months. We then had to both move to the USA and stayed there for 18 months from 2007-2009. We returned to the UK (Northern Ireland) in Aug 2009 and both have been here ever since with the full intention to remain here permanently. Soon after I returned I became self employed and began paying class 2 National Insurance contributions. I also worked part-time in Sainsburys over Christmas.

Basically i became pregnant and because I suffer from a back condition I gave up self employment when I was 3 months pregnant in Jan. As I am unable to work until the after baby is born I went to the local benefits office who basically said I was not entitled to any form of benefits as I didn't satisfy the habitual residence test and I didnt have any qualifying contributions from the last tax year. They said I had to be in the county for 52 weeks to satisfy the Habitual Residence Test. I'm now 8 months pregnant and have no income whatsoever. They did let me sign on Jobseekers allowance but I only get my stamp paid, I do not recieve any money.

My question is (and I realise everyone has different circumstances) has anyone else been denied benefits for these reasons? Is there any appeal I can do. It would be great to have some money coming in especially as my husband is now unemployed and the baby is 6 weeks away!!! I've never been on benefits before so I don't know the system!

Thanks

BristolUK

You should look for the threads on HRT. There is no qualifying period but there is a history of staff arbitrarily applying 3 months or 6 months. 52 weeks is a new one on me.

Your situation could be a little more complicated than most depending on your husband's immigration status and whether he has access to public funds.

You said he's "now" unemployed. Could it be that he was employed when you applied and that not meeting the contribution conditions you also didn't meet the income conditions for Income Support or Income Based JSA because of his earnings?

Anyhow, it rather sounds like you wouldn't be getting your NI credits if they still considered you not to be habitually resident, so you might get more joy if you re-applied.

If you are 6 weeks away from having a baby, you can actually apply for Income Support without signing on for JSA.

kins

I spent a year in America, then returned to the UK in Sept 2000, and fell pregnant almost immediately. I worked on a self-employed basis, paying Class 2 and Class 4 NI contributions, from my return date until I was 32 weeks pregnant. I qualified for Maternity Allowance, but I never tried to claim any other benefits.

My husband returned to the UK at the same time as me and immediately claimed contribution-based Jobseekers Allowance based on NI contributions he'd made before he left a year before.

Not sure if this helps you, but I don't think it's entirely true that you can't claim ANY benefits because of the residence test. I'd go to all the relevant agencies and ask. You may well find that you qualify for one benefit but not another.

Shish kebab

Hi I had a similar problem and ended up giving them a fight for their money and took it to my citizens advise and my local mp and they got it all sorted form me. Keep copies of any papers you send in and apeals and get names of poeple you talk to make them feel like crap when you let them no you will take it further. My case went to the parlement MP in london and all it took was a phone call after they spoke to me and got my informatin and facts and I had my daughter to feed at the time we are both British born.
Read this info below it will help and when you put in an apeal call them all the time to get it looked at they hate it. Good luck

If you come back to Britain to live permanently, after living abroad, and you can't get work straight away, there is no stand down period for getting benefits. If either the DWP or your local council try to tell you otherwise, I recommend getting your MP involved.

The following are guidelines from Colchester City Council. Please note the section that says if you were previously habitually resident and have returned from abroad, you should not fail the test.

The Habitual Residence Test
Date Published: 12 January 2009
This page tells you about the Habitual Residence Test. This is a test to see if you intend to make the your home in the UK. You need to pass this test to get certain benefits.
What is the Habitual Residence Test?

If you are making a claim for Income Support, Income-based Jobseeker’s Allowance, Housing Benefit or Council Tax Benefit you will need to pass the ‘habitual residence test’. The Habitual Residence Test checks to see if you have made the British Isles your normal home. This has to be in the UK, Ireland, Channel Islands or the Isle of Man.

Who doesn’t have to pass the test

You are exempt from the test if you are:

* A recognised refugee and a person granted ‘exceptional leave to remain’
* An European Economic Area (EEA) worker or a certain other EEA national who has the right to reside in the UK.
* A person in Great Britain who left Montserrat after 1-11-95.
* Already receiving Housing Benefit, Council Tax Benefit, Income Support or Income-based Job Seekers Allowance.

Who does have to pass the test

If you don’t come under one of the exemptions, even if you are a British Citizen you will need to pass the test. It is important to note that it is only you who needs to pass the test and not your partner and dependants.

How to pass the test

You will need to demonstrate that you intend to make the place where you live your home for the time being. It doesn’t mean that you intend to live there permanently. The longer you reside here, the easier this is. Other things which are taken into account are the reasons you are here.
If you were previously habitually resident, and have returned from abroad, you should not fail the test. So, for example, if you were a British Citizen who went to live abroad and have returned to live in Great Britain.
What happens if you fail the test?

You can appeal the decision. Whilst appealing you may be able to get an interim payment. However, you will not be entitled to Income Support, Income-based Job Seekers Allowance, Housing or Council Tax Benefit.

How to appeal

You can appeal to a Social Security Appeal Tribunal on form GL24, from the Benefits Agency. You should get help with this from someone like the Citizens' Advice Bureau. Whilst appealing you can submit another claim for the same benefit. This is probably the quickest way to get benefit. You may be more likely to succeed as you will have lived here for longer.

Other help

If you have failed the test and have dependant children, you may be entitled to help from Social Services. If you are appealing, you may be able to have a crisis loan from the Social Fund, where there is a good chance of your appeal being successful.
Also your local MP may be able to help you receive an extra statutory payment.

Bijilo123

Funnny that HMRC have an entirely different test to see if you are eligible to pay tax. Needless to say it is far less onerous!

For medical treatment the test is intention to stay so irrespective on nationality, you qualify for NHS the day you arrive provided you intend to stay.

Good luck with the baby.

virginiadare

Thanks everyone! Your input has been really helpful! I'm going to try the citizens advice bureau and i'm going to make another appointment to have the social security explain yet again why I am denied (although everytime I go they give me a different reason). At least this time i'll be a little more knowledgeable about the Habitual Residence Test!

Shish kebab

yes Go and see them and ask them to set up an appointment with your MSP in your area and they will also go over your details and will also make some calls for you. I ended up doing that. As soon as it got passed to the MP in london and they made calls I got my money straight away.
There is a lot of information about it out there and some contradics the other but the information I posted covers the just of it. NHS offer you free medical form day one as being a UK resident and the social security department are not really up to date with it all.

BristolUK

Social Fund staff have zero to do with a benefit appeal. What might happen is that a Social Fund officer (looking at a crisis loan application) has the necessary experience or knowledge to know that a benefit decision is wrong or that a different benefit would be appropriate. They might point the error out to a relevant person so it gets changed or arrange for the other benefit to be claimed and paid. I've done that.

Crisis Loans are (as the name says) paid as a loan and they have to be repaid. If there is no income coming in, there is nothing available to repay the loan, so it cannot be given. Crisis Loans are also to support a short term need. An appeal that might be heard some months later and might be lost anyway is not a short term need.

Exceptionally, you might find a nice friendly helpful officer willing to process a Crisis Loan as if the matter will be resolved in a few days and make a Crisis Loan to meet the need until then - that happens sometimes too. But even the most flexible Social Fund Officer can't keep that up if there's no sign of an early resolution to the problem. I managed to do it about three times on one case but it's not easy to do and get away with.

canadaimmigrant

Thanks for discussing this.

When I was working abroad in the USA for 1 year in 2001 and then 1 year in Canada in 2007. On both accounts when I returned to the UK and signed on for unemployment benefit they said that I could not receive anything. In fact there was no point me signing on at all as they could not help me. They said that I have to had paid enough UK income tax in the most recent 2 year period and because I was abroad then I had not paid enough tax.

So there you have it, people claim all kinds of benefits and live of the state and I got sod all even though I've been paying UK income tax for most of my life!!!

And these idiots in the employment center are being paid by the UK tax payer? Its high time they did their job properly.

When I go back to UK and if I decide not to return to Canada and can't get my old job back in the UK, then I'll certainly take it up with the citizens advice bureau and my local MP.

BristolUK

The period of contributions for Job Seekers Allowance looked at is indeed two years, but it's not as simple as the two years leading up to a claim.

They look at two complete tax years. Depending on when you apply and how long you were away for, any time outside the UK may not overlap enough to make a difference.

If one returns in March 2010 having been away for a year, they'll look at conts for April 2007 to April 2009. But you'll only have been away from March 09 and that's barely a month in the period they're looking at. So chances are you'd qualify if you were paying conts in the years before going away.

If on the the other hand you had been away for more than two years that would cover all of the second year they look at and part of the first. That might impact on whether you'd qualify.

Just trying to keep it basic...there are other complications.

As for no point in signing on at all, even if not meeting the conts conditions, signing on would cover your conts for the period out of work - as has been happening with the OP. Hopefully you didn't lose that.

virginiadare

Hey everyone,

Justo to update you all. I went to the local Citizens Advice Bureau who were very helpful. I told them my whole story and the the guy dealing with me said I was absolutley entitled to claim income support. So I filled out the forms, left them into the Social Security Office and am waiting to hear the outcome. The CAB said that if they deny me due to the Habitual Residence Clause to go back to them and they would help me with the appeal.

I can throughly reccommend the CAB to any returning expats. It seems they knew more about the benefits system and expats than the people in the Social.

Anyway...fingers crossed!

BristolUK

Yes, CAB is very good. Shelter too.

I should just say that although some social security/job centre staff are obstructive, training and pay levels are poor. They also have to put up with a lot of shit from employer and public. Staff turnovers are high so you don't always get the necessary expertise necessary for the unusual situations.

CAB deals more with the unusual situations and they can develop the expertise in a way that most job centre/social security staff can't.

Bijilo123

Why can't you just pay your own way?

Victor Meldrew

It sounds like she doesn't have the money to pay her own way.

Why should she if she needs benefits/money and the 'system' can provide this for her?