As a complaint caseworker, it is my job to identify trends where organisations have persistently made the same mistakes. A growing trend among my work is the mis-management by local authorities of assessing peoples’ housing benefit who are self-employed or have a fluctuating income.
There is a growing reluctance amongst local authorities such as Westminster Council to apply the Right to Reside test fully for EU housing benefit claimants. Westminster Council housing benefit assessments processes for those on fluctuating income often take several months to assess. Over the period of the assessment the claimant is bombarded with requests for repeat information, questions asked are often unspecific, leading to further more detailed information needing to be provided. Questions asked are often irrelevant to the requirements of assessing people for right to reside status.
I have outlined below Right to Reside legislation and case law regarding self-employed workers before, providing a couple of case studies which highlight our points of concern.
The Right to Reside test establishes when an EU citizen counts as qualified person for treaty rights in an EU host country. For a worker, there are two alternative tests which can be applied, which are governed under The Immigration (European Economic Area) Regulations 2006:
- Under S4 1 (b) states, “self-employed person” means a person who establishes himself in order to pursue activity as a self-employed person in accordance with Article 43 of the Treaty establishing the European Community
- Under S15 1 (a) a person who has resided in the UK in accordance with the regulations for a continuous period of 5 years.
My experience with Westminster is that test number one is neglected, in favor of the permeant right to reside test. This test is easier to prove as all is required from the claimant is to provide 5 years of work history. Gaps in a claimant’s work history do not necessarily prevent a person from being entitled, if they can prove that they either registered with the Jobcentre or work agency, undertook a course of training, or were temporary unable to work due to illness. This is determined under S6 2 I (EEA) Regulations 2006.
That of the first test, whether the claimant has achieved right to reside status as a worker is often ignored. For a claimant to have this status, the work carried out needs to be genuine and effective. Legislation does not exist on how this is determined, however many of the principals have been determined through case law. The case of Levin vs. Sanderson Vos Jynne C-33/B1  ECR 1055 para 17 states that levels of earnings are a consideration, but the amount can be lower than the amount considered the minimum required for subsistence in the host member state. The case also highlighted that a person working part time can be a “worker” provided the work is genuine and effective.
In addition the case of Nimel Orasche vrs Bundemaster fur Wischenshuft C413/01  sates that if the work only lasts a short time it does not exclude you as a worker. Therefore the above test is more subjective and requires assessors to look more broadly at the claimants circumstances in order to make a judgement whether the person has right to reside status.
Mr X was an EU national from Bulgaria. He moved to the UK 15 years ago. Throughout these years he consistently held down a job as a waiter. In February 2016 he lost his job and claimed housing benefit. After making his initial application he was correctly asked for his employment history to assess him under the permanent right to reside test. However he was also asked the following additional questions.
“In what way are the job prospects better in the UK than the country you have returned from?”
“How did you expect to support yourself financially when you returned to the UK? E.g., did you have savings?”
“Where are your belongings and do you intend to transport them, if you stay in the UK??”
As demonstrated by the above tests, these questions are inappropriate as they are irrelevant to the Right to Reside test. At a stage 2 complaint Westminster Council accepted that these are inappropriate questions to ask. They said that this was on a previous version of the people From Abroad questionnaire. That the questionnaire has been reviewed in January 2017. That these questions are no longer included. We have taken this further with the Ombudsman asking them.
- Why was the questionnaire not reviewed earlier?
- What was the purpose of these questions?
- Why did the assessor need to ask them?
We are currently awaiting a response to the above.
Use of the Wrong Test and Lack of Unspecified Questions
Mr Y had been on housing benefit for several years. He had worked as a waiter, on a low income. He then reported a change of circumstances as he was starting up a café. Westminster Council initially assessed him for permanent right to reside, asking him in June 2016:
“Please can you confirm if you have worked, since you arrived in 1979?”
Mr Y submitted the relevant documents and then in September 2016 he was asked to supply his Profit and Loss account details. However the council did not specify which period of time it covered. Mr Y submitted a profit and loss account for one month from September to October, believing this to be a sufficient period of time. In October he was informed that his Profit and Loss account could not be accepted as he had only completed for one month. A new profit and loss account was requested, which Mr Y provided. He was informed in December2016 that he needed to complete a self-employment questionnaire. His housing benefit was finally reinstated on the January 2017
During the period of 6 months Mr Y was struggling financially. City West Homes then issued eviction proceedings against him. They put pressure on his to make a contribution to his rent despite all his money being absorbed by the café.
This case demonstrates our above concerns. Questions were not asked collectively, contributing to the 6 month delay. Only the permanent right to reside test was applied and not the worker test to establish right to reside status. Information asked was not specific or clear enough for Mr Y to provide specific answers. This case is also currently waiting to be heard by the Ombudsman.
This is just two of many clients I have seen, with a fluctuating income, who have experienced a delay in re-instating their housing benefit. Assessing a claimant, considering both worker tests, asking information collectively and specifying what information required, would ensure that delay in processing housing benefit is minimized. We ask Westminster and other local authorities to review these assessment procedures for those whose income changed and self-employed to avoid further hardship for this client group.