Habitual Residence Condition, Welfare says no, HSE says Yes

burenboy

I applied for JSA last April but was finally refused in June because I did not satisfy the Habitual Residence Condition. They have put me through the appeals system, and I am still waiting for a date for the appeal.

In September I went to the HSE to inquire about getting a Supplementary Welfare Allowance that would cover me until my appeal. To get this payment I had to satisfy the HRC again, and as far as the HSE are concerned I am habitually resident, and they are paying me the weekly allowance.

Does their decision that I am habitually resident set a precedent that I can use when my appeal comes up, or is their some way that the Welfare interprets HRC differently?

Seems a bit strange that their could be a law that is interpreted differently by 2 State bodies, but this is what somebody has mentioned to me.

Thanks for any advice on this.

Granger13

burenboy wrote: »

I applied for JSA last April but was finally refused in June because I did not satisfy the Habitual Residence Condition. They have put me through the appeals system, and I am still waiting for a date for the appeal.

In September I went to the HSE to inquire about getting a Supplementary Welfare Allowance that would cover me until my appeal. To get this payment I had to satisfy the HRC again, and as far as the HSE are concerned I am habitually resident, and they are paying me the weekly allowance.

Does their decision that I am habitually resident set a precedent that I can use when my appeal comes up, or is their some way that the Welfare interprets HRC differently?

Seems a bit strange that their could be a law that is interpreted differently by 2 State bodies, but this is what somebody has mentioned to me.

Thanks for any advice on this.

Are you sure the HSE has determined that you are Habitually Resident? Did you receive this in writing from them?

If you are awaiting an appeal, even if you have been refused Habitual Resident, you can apply to the CWO for an Basic Weekly Supplement payment while awaiting your answer from the Appeals Office. This payment would be paid due to the fact you have an appeal in. More than likely if your appeal comes back disallowed, then the SWA payment will also cease as under the Social Welfare Consoladation act they do not have to pay to a claimant not been Habitual Resident in the State.

burenboy

Thanks for your reply Granger13. I don't have it in writing. Last September, I applied for the SWA and gave the CWO the required documents, plus a copy of my appeal to the Welfare, arguing my case.

When I went back the following week to the CWO to see did I qualify, he said he had discussed this with his supervisor, and as far as they were concerned I was habitually resident.

eastbono

burenboy wrote: »

Thanks for your reply Granger13. I don't have it in writing. Last September, I applied for the SWA and gave the CWO the required documents, plus a copy of my appeal to the Welfare, arguing my case.

When I went back the following week to the CWO to see did I qualify, he said he had discussed this with his supervisor, and as far as they were concerned I was habitually resident.

Guidelines for Habitual Residency for supplementary welfare allowance differ greatly to Habitual Residency guidelines for Dept of Soc Protection.

burenboy

eastbono wrote: »

Guidelines for Habitual Residency for supplementary welfare allowance differ greatly to Habitual Residency guidelines for Dept of Soc Protection.

Thanks Eastbono. So although it is the same HRC, both agencies interpret the rules differently, interesting. I can find the D o S guidelines online, does anyone know where I can find the guidelines that the HSE use or have a link?
Cheers.

eastbono

burenboy wrote: »

Thanks Eastbono. So although it is the same HRC, both agencies interpret the rules differently, interesting. I can find the D o S guidelines online, does anyone know where I can find the guidelines that the HSE use or have a link?
Cheers.

Its not the same hrc... I dont know the hrc guidelines for supplemenary welfare allowance and I dont think they are available online... I would love to see them my self. At the end of the day its the guidelines from SW will decide if you are habitual resident or not... an appeal takes months.

burenboy

eastbono wrote: »

Its not the same hrc... I dont know the hrc guidelines for supplemenary welfare allowance and I dont think they are available online... I would love to see them my self. At the end of the day its the guidelines from SW will decide if you are habitual resident or not... an appeal takes months.

Thanks for that Eastbono, yea I can see this appeal going on for a while indeed. The HRC the SW uses is the one introduced by the Govt. on 1 May 2004 and altered occasionally. So would I be right in saying the HRC the HSE use is their own in house one and not the Govt. one?

mystic

http://www.welfare.ie/EN/OperationalGuidelines/Pages/habres.aspx

Ctrl and f (search for Supplementary Welfare Allowance).

'Supplementary Welfare Allowance

The entitlement of EEA nationals to SWA is affected by the provisions of EEC Regulation 1612/68 which deals with the freedom of movement of migrant workers within the EU, including their employment rights and the rights of their families.

Article 7(2) provides that a migrant EEA worker shall enjoy the same social advantages as national workers, and a judgement of the European Court of Justice has ruled that this includes social benefits guaranteeing the minimum means of subsistence (which in Ireland means SWA).

There are detailed rules as to who is to be treated as a worker for the purposes of this Regulation. Those workers include persons who have been engaged in genuine and effective employment but who are presently in other specified circumstances.

An EEA national who is engaged in genuine and effective employment in Ireland is regarded as a migrant worker under EC law and does not need to satisfy HRC for the purpose of any claim to Supplementary Welfare Allowance. A person who has retained his or her "worker" status in accordance with Regulation 1612/68 as amended by Directive 2004/38 continues to be protected by this provision.

This means that EEA nationals who have been employed since arriving in Ireland may be entitled to SWA, even if they do not satisfy the HRC condition for Jobseeker's Allowance, One parent Family Payment, or one of the other payments subject to HRC. Such persons should therefore be advised to enquire with their local Community Welfare Officer as to their possible entitlement to SWA as a migrant EU worker..'

http://www.welfare.ie/EN/OperationalGuidelines/Pages/swa_habres.aspx

Happy reading!!!!

By the way, a new set of guidelines is due to be published on the website soon.

cee_jay

An EU migrant worker who enters employment but subsequently becomes involuntarily unemployed or incapacitated is entitled to Supplementary Welfare Allowance which is treated as a social advantage payment under EU law.
If the employment lasted less than twelve months then he or she is entitled to SWA for six months or if the employment lasted more than a year then payment will continue
indefinitely while the claimant continues to actively seek employment.
Under the EU Citizen’s Directive, an EU national legally residing in another EU State for ive years or more has a permanent right of residence in that state, regardless of whether he or she is working or accessing social assistance. However, if he or she leaves the State for two years or more then the right will be lost.
Other EU nationals who come to the State as job-seekers or do not take up work are entitled to remain in the State for up to three months as long as they do not become a ‘burden’ on the social welfare system. If the EU national is not a job-seeker, does not take up employment, become self-employed or show that he or she is self-sufficient then they will not have a legal right of residence and therefore will not meet the HRC. In any event, a right of residence does not presuppose habitual residence; the five factors must still be considered.
Taken from http://www.pila.ie/download/pdf/2010_09_06_habitual_residence_condition_guide_final.pdf
Note the above condition applies to SWA only - so you can be habitually resident for SWA and not JSA. There are different conditions applied to both.
Its all about right to reside and rights of migrant workers.

burenboy

Thanks for that information cee_jay.