This page is mainly to give you information about what to do if you are refused benefit because of rules about EEA citizens and their family members.

However it may also help you if you haven’t yet made a claim, but want to think about what your options are.

This page is no use on its own, because I don’t explain things in detail: if I did it would be as long as the other pages put together! This is why it opens as a new window or new tab, so you can look at other pages at the same time. It doesn’t cover every possible scenario, just the common ones. This is why it is important to get specialist advice about your own situation, if you can

This page is divided into sections: click here to jump to the one you want.

How to appeal
If you are a citizen of an EEA country (apart from Croatia)
If you are not from the EEA, but are a family member of an EEA citizen
If you are from Croatia
 

How to appeal

If you are refused benefit, it is very important to read the decision letter to find out exactly why you have been refused. This is because if you do this: You can choose your appeal arguments to match their reasons ⁃ You can think about what evidence you have that shows that they are wrong; You know which reasons for giving you benefit that they haven’t considered; Also, you might learn that it might not have anything to do with you being from abroad at all, in which case the information on this page isn’t going to be much help. Make sure you consider all the possibilities: if you just focus on being a worker, for example, you might overlook the fact that you have an EEA family member who clearly meets the rules; or you might forget to check whether or not you fit the ‘permanent right to reside’ rules. In right to reside cases things can often come down to a difference of opinion about the facts. It’s often not clear cut. So, yes, a tribunal might agree with the Jobcentre Plus (or Her Majesty’s Revenue & Customs), but they might not, especially if you are able to get more evidence.

If you have been claiming Jobseeker's Allowance or Employment and Support Allowance, make sure that the Jobcentre Plus has checked whether your employment history in your home country has resulted in you being able to get contribution based benefit in the UK You may need to contact the social security provider in your country of origin yourself, to try to get evidence to support this.

A new appeal procedure now applies to most benefits (DWP benefits from 28th October 2013, and tax credits and Child Benefit from 6th April 2014). But as it does not yet apply to everything we need to look at the old procedure as well...


New Procedure (applies to everything apart from Housing Benefit and Council Tax Support)


The new procedure is a two stage process. Before you appeal, you must first ask the people that made the decision for a mandatory reconsideration. They must then write to you to tell you whether they have changed the decision or not. If they have not changed the decision, or they have changed it but you don’t like the new decision either, you must then send an appeal to Her Majesty’s Court and Tribunals Service (the Tribunal Service for short).

The Tribunal Service will then put you on a waiting list for a hearing date, at which they will consider your case.

Your request for a mandatory reconsideration must normally get back to them within a month of the date of the decision Your appeal must normally get to Her Majesty’s Court and Tribunals Service within a month of the date of the the letter telling you the result of the mandatory reconsideration.

Here’s some things to bear in mind:

• If you are asking for a mandatory reconsideration of a decision made by the DWP (e.g. Income Support, Jobseeker's Allowance, and Pension Credit) there is no special form, so it’s important to make sure you include information like your National Insurance Number, the date of the decision you’re not happy with, and exactly why you disagree with the decision. You could use the example have written here.
• If you are asking for a mandatory reconsideration of a decision made about tax credits, there is a form, called WTC/AP: you can find it here: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/332699/wtc_ap.pdf
  
• There is also a form for appealing against Child Benefit (and guardian's allowance) decisions, called CH24A for Child Benefit, which you can find here: http://www.hmrc.gov.uk/forms/ch24a.pdf :
  
• When you write your appeal:
• If you are appealing a DWP decision, you will need to use the form SSCS1, which you can find here: www.justice.gov.uk/downloads/forms/tribunals/sscs/sscs1.pdf
  
• If you are appealing a tax credit, Child Benefit, or Guardian's Allowance, decision, you will need the form SSCS5 which you can find here: http://hmctsformfinder.justice.gov.uk/courtfinder/forms/sscs005-eng.pdf

At Section 6 of the both appeal forms they ask whether you want to attend a hearing of your case: you generally have better chance of success if you attend your hearing

Old Procedure (applies to Housing Benefit and Council Tax Support)

With the old procedure you send your appeal initially to your local authority (Council). The form will depend on where you live

They will then consider your appeal. If they do not change their decision they should pass the case on to the Tribunal Service.

The Tribunal Service will then contact you asking you some questions.

One of the questions the Tribunal Service will ask you is whether you want to attend a hearing of your case: you generally have better chance of success if you attend your hearing.

The Tribunal Service will then put you on a waiting list for a hearing date, at which they will consider your case.

If you are a citizen of an EEA country (apart from Croatia)

Are you working?

If you applied for benefit for this reason, but been refused, try to work out exactly why they disagree:

• If you are working, check the decision notice to see if they know about it, even if you have told them already!
• Have they refused you because they don’t believe you when you say you are working?
• If so, have you got any evidence you can send them that they haven’t got already?
• In particular, if you have been awarded Working Tax Credit but refused another benefit (e.g. Housing Benefit?)
• If this is the case send evidence of the Working Tax Credit to the people who refused you, because if the Tax Credit people have awarded you Working Tax Credit they must have accepted that you are working at least 16 hours per week.
• Are they saying that you are not working enough (they might say that your work is not ‘genuine and effective’)?
• This is often a matter of opinion, and a tribunal may disagree with the DWP decision maker
• However you do need to honest with yourself about this: if you are only working ½ hour every other week, for example, you need to accept that this is not enough.
• If you’re not sure whether you are working enough, you may as well appeal, but you need to be realistic about the outcome.

If you’ve thought about all this and decided that it is not worth appealing, think about is there anything you can do to increase the chances of a future benefit claim succeeding: for example, can you get your employer to give you more hours per week?

Are you looking for work?

If you applied for benefit for this reason, but been refused, try to work out exactly why they disagree:

• Have you claimed Jobseeker's Allowance? Remember that even if you are looking for work it doesn’t help you unless you have applied for Jobseeker's Allowance.
• Remember also that as an EEA citizen (or a UK citizen who has been away for a while) you cannot get Jobseeker's Allowance until you have been in the UK for three months.
  

Are you self-employed?

If you applied for benefit for this reason, but been refused, try to work out exactly why they disagree:

• Are they saying that there is not enough evidence that your self-employment is genuine?
• You first need to be honest with yourself: is your self-employment genuine? Is there any possibility of making a living from it (together with any benefits like tax credits, Housing Benefit, etc?)
• If you think your self-employment is genuine, is there any other evidence you can send them to help them change their minds? Perhaps you have evidence of sales, or of work done, for example. What about a copy of your annual accounts, if you have one?
• If you haven’t got much (or any) extra evidence, you can still appeal, but you need to be realistic about the outcome.

If you have been refused because of lack of evidence, think about what you can do to increase the chance of any future claim succeeding. You might have to start being more organised about your business: keep evidence of work done, or expenses paid, of money received.

You’ve been in the UK for at least five years, and fitted one of the other categories for all that time.

This is a biggie: quite often (in my experience) decision makers look at the circumstances at the moment without thinking about whether a person fits the five year rule. But remember:

• It’s not good enough just to have been in the UK for at least 5 years. You need (normally) to have had the right to reside for all of that time.
• If you’ve been out of the UK for 2 or more years after getting to the five year stretch you’ll have to start again.

If you think this might apply to you, even if you’re not sure, you should appeal the decision.

You are responsible for a child in education

Remember that this only applies to some people!

Ask yourself the following questions - you have to answer ‘yes’ to them all to use this option:

• Is one (or both) of the child’s parents an EEA citizen?
• Has there been a time when the child you are looking after when they were in the UK while their EEA citizen parent was working?
• Are you the main carer for the child now?
• Is the Child in school now?

If you applied for benefit for this reason, but been refused, try to work out exactly why they disagree:

• Are they saying that there is no evidence that an EEA citizen parent was working while the child was in the UK? Can you do anything about it? If you haven’t got any more evidence, still consider appealing, as a tribunal may still accept that what you are saying is likely to be true
• Are they saying that the child is not in school? Check to see if you can get any more evidence: contact the school if necessary.

You are a family member of an EEA citizen

If you have been refused benefit because it has been decided that you do not have the right to reside because of any of the reasons above, always consider this possibility. Ask yourself the following questions:

• Do you have any family members who are EEA citizens who are also in the UK? Obviously if the answer is ‘no’ there is obviously no point in taking this any further.
• If you do have any family members who fit this description, check the information I have provided to see if any of them count as a family member for these laws.
• If any of them do count as a family member, ask yourself: do they have the right to reside (for example, are they working?)?
• If the Jobcentre Plus say that they have refused you because there is not enough evidence that the family member is related to you, or is an EEA citizen, or has the right to reside in the UK, you should appeal, especially if the family member is someone you cannot easily contact (for example because they have been violent to you). A tribunal will consider the situation taking account of any difficulties you have getting the information.

What if you don’t fit any of these categories?

There are a lot of reasons why you might not fit any of these categories, but two very commons ones are these:

• You are the single parent of a young child
• You have become unable to work because of health problems.

There’s no hiding from the fact that if you don’t fit any of these categories you are in a bad situation. You will not be able to get any income based benefits, including tax credits, or Child Benefit.

• Don’t forget to make sure that you’re not entitled to any contribution based benefits (although it’s likely that if you’ve applied for Jobseeker's Allowance or Employment and Support Allowance this will have been checked anyway.
• If you’re disabled, you may be entitled to Personal Independence Payment or Attendance Allowance, and if you’re a carer, Carer’s Allowance.
• If you have become unwell to work because of health problems, don’t forget that there’s no rule that says you can’t try and look for work and get Jobseeker's Allowance for this. In fact the government wants more ill and disabled people to look for work. However you must play the game and do everything you have to as part of your jobseekers agreement or claimant commitment. If you do your bit but no-one wants to employ you that is the Jobcentre Plus’s problem, not yours
• If you are responsible for a young child, there’s no rule that says you can’t try and look for work and get Jobseeker's Allowance for this, even if you’re young enough to get Income Support (if you weren’t from the EEA). However you will need to convince the Jobcentre Plus that you are genuinely able to look for work, and start work if a job comes up, so they will be asking you questions about what arrangements you have for looking after your child.

If you are not from the EEA, but are a family member of an EEA citizen

• Remember that not every family member who is an EEA citizen in the UK counts for these rules, so check the information I have provided.
• If any of them do count as a family member, ask yourself: do they have the right to reside (for example, are they working?)?
• If the Jobcentre Plus say that they have refused you because there is not enough evidence that the family member is related to you, or is an EEA citizen, or has the right to reside in the UK, you should appeal, especially if the family member is someone you cannot easily contact (for example because they have been violent to you). A tribunal will consider the situation taking account of any difficulties you have getting the information.

If you are from Croatia

Always ask yourself first if you have worked under the official government scheme for a year or more: if you have, you are in the same position as someone from another EEA country, and the section above applies to you.

Are you working?

If you applied for benefit for this reason, but been refused, try to work out exactly why they disagree:

• If you are working, are you working for an authorised employer and have you got documents to prove it?
• If you are, check the decision notice to see if they know about it, even if you have told them already!

Are you looking for work?

Unfortunately you are not normally entitled to benefits as someone looking for work.

Are you self-employed?

If you applied for benefit for this reason, but been refused, try to work out exactly why they disagree:

• Are they saying that you are not really self-employment but are actually an employee (and not in authorised employment) you may want to challenge this, as a tribunal might disagree with the Jobcentre Plus (or Her Majesty’s Revenue & Customs) about this, but you will be questioned closely about the way you work: is it more like working for a boss, or being your own boss?
• Are they saying that there is not enough evidence that your self-employment is genuine?
• You first need to be honest with yourself: is your self-employment genuine? Is there any possibility of making a living from it (together with any benefits like tax credits, Housing Benefit, etc?)
• If you think your self-employment is genuine, is there any other evidence you can send them to help them change their minds? Perhaps you have evidence of sales, or of work done, for example. What about a copy of your annual accounts, if you have one?
• If you haven’t got much (or any) extra evidence, you can still appeal, but you need to be realistic about the outcome.

If you have been refused because of lack of evidence, think about what you can do to increase the chance of any future claim succeeding. You might have to start being more organised about your business: keep evidence of work done, or expenses paid, of money received.

You’ve been in the UK for at least five years, and fitted one of the other categories for all that time.

Quite often (in my experience) decision makers look at the circumstances at the moment without thinking about whether a person fits the five year rule. But remember:

• It’s not good enough just to have been in the UK for at least 5 years. You need (normally) to have had the right to reside for all of that time. Working in authorised employment does count towards this.
• If you’ve been out of the UK for 2 or more years after getting to the five year stretch you’ll have to start again.

If you think this might apply to you, even if you’re not sure, you should appeal the decision.

You are responsible for a child in education

Remember that this only applies to some people. Ask yourself the following questions - you have to answer ‘yes’ to them all to use this option:

• Is one (or both) of the child’s parents an EEA citizen?
• Has there been a time when the child you are looking after when they were in the UK while their EEA citizen parent was working? Remember that if they are from Romania, Bulgaria, or Croatia, the work would have to be authorised.
• Are you the main carer for the child now?
• Is the Child in school now?

If you applied for benefit for this reason, but been refused, try to work out exactly why they disagree:

• Are they saying that there is no evidence that an EEA citizen parent was working while the child was in the UK? Can you do anything about it? If you haven’t got any more evidence, still consider appealing, as a tribunal may still accept that what you are saying is likely to be true
• Are they saying that the child is not in school? Check to see if you can get any more evidence: contact the school if necessary.

You are a family member of an EEA citizen

If you have been refused benefit because it has been decided that you do not have the right to reside because of any of the reasons above, always consider this possibility. Ask yourself the following questions:

• Do you have any family members who are EEA citizens who are also in the UK? Obviously if the answer is ‘no’ there is obviously no point in taking this any further. Remember that if the person is from Croatia, they have to meet the rules that apply to people from those countries.
• If you do have any family members who fit this description, check the information I have provided to see if any of them count as a family member for these laws.
• If any of them do count as a family member, ask yourself: do they have the right to reside (for example, are they working?)?
• If the Jobcentre Plus say that they have refused you because there is not enough evidence that the family member is related to you, or is an EEA citizen, or has the right to reside in the UK, you should appeal, especially if the family member is someone you cannot easily contact (for example because they have been violent to you). A tribunal will consider the situation taking account of any difficulties you have getting the information.

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