Sue Lukes answers questions on eligibility

I am delighted to announce that eligibility expert Sue Lukes is joining us a Easy Law Training and you can read details about her courses over on the ELT website.

To show you what she can do, she has provided us with some typical questions and answers.  If you have any of your own feel free to ask!


Question: I am advising an unaccompanied asylum seeking child who is due to be 18 in the next month. He has leave to remain for 3 1/2 more years. He is now applying for his own independent accommodation, but I have been told he is not eligible for social housing because he has limited leave to remain. but I thought all care leavers were entitled to apply for social housing?

Response: Obviously social services will have a responsibility to him as a care leaver (what duties depend on what type: best on this that I have seen is the Coram guide on Seeking Support available at www.seekingsupport.co.uk).

For housing, his entitlement (as a person subject to immigration control) depends on the type of leave that he has. He has limited leave to remain, so the question is whether he is in one of the classes of people with limited leave who are eligible:

  • Class A (if he has refugee status, which starts with leave for five years),
  • Class B (if he has limited leave granted with no conditions as to recourse to public funds, which is often called discretionary leave, and is often given to people who have applied for asylum and are allowed to stay and eventually settle in the UK but do not qualify for refugee status.

This type of leave can be for any period from 3 months to three years), or class D (humanitarian protection, granted after an asylum application, for up to five years).

If he has one of these types of leave to remain, he is definitely eligible. As someone who applied for asylum, he would have been given one of these types of limited leave to remain, and all three of them make him eligible for housing.

This is a pretty basic bit of eligibility law and I am surprised that anyone told you or him he was not eligible as that would not only be clearly inaccurate but also potentially lay the authority open to legal action, both in failing this care leaver and in discriminating illegally against a potential housing applicant. So please (after checking what leave he has!) do go back and tell them they should not be offering this sort of advice if they do not know the relevant law.

Question: I am a homeless officer and I have had an approach from a lady and her children who all hold EEA passports, although the mother was born elsewhere and arrived in her country of citizenship as a refugee.

She lived in a home there found for her by the local authority from 2005 until a few months ago, but then decided she wanted to move to the UK and so found a property locally at quite a high rent, via the internet.

She did not find work here before coming, saying it was impossible to do that until she was here in Britain, she has not worked since arriving but is looking for work and has applied for and been awarded JSA. But she now has rent arrears and has been issued with a notice to quit. What homelessness duties do we have to her? Is she intentionally homeless?

Response: If your lady has never worked in the UK, it looks as though the only right to reside she has is that of a workseeker which is a non qualifying right for housing allocation and homelessness, so she is ineligible.

Obviously now she is getting benefits she can get HB to cover the rent (assuming it is within local LHA) and if she can make an arrangement to pay the arrears that may prevent homelessness. And as she has a right to reside as a workseeker then social services may assist her with this.

So since she is not eligible, the issue of intentionality does not arise, so I will not delve further into that!

Question: This is about a man who is an EEA citizen who came to the UK in 1994. He thinks that he probably worked for approximately 5 years when he initially came to the UK. However, he is finding it hard to find any relevant records to prove it. However, since he initially worked for approximately 5 years, he has been off sick claiming welfare benefits and not on JSA.

Do we have to keep searching for proof of his work history to prove eligibility?

Response: If he was a worker then, he probably got the permanent right to reside out of it if he did 5 years.

Alternatively, he may have become permanently unable to work due to his illness, and assuming he did at least two years work first, then he would have got the permanent right to reside after 2 years in that situation.

Lastly: he may be temporarily unable to work and so retaining his worker status: I know it is a long time, but case law is clear that the issue is not the length of time a former worker is off work but whether they will be able to get back into work with treatment (in Moreno v Hackney LBC January 2009 the MCLCC found that Mr. Moreno was indeed temporarily unable to work for four years from 2004. Hackney had failed to consider whether the treatment he was receiving would result in him getting well enough to work, which was the key consideration).

It certainly looks like the DWP think he is either a worker or has the permanent right to reside since they are paying him sickness benefits based on a right to reside. So you could reasonably decide he is eligible on that basis.

For more information on Sue >> click here.

Leave a reply

Back to top

"Talking Shop" Blog

Sue Lukes answers questions on eligibility issues

November 1, 2014

About Sue Lukes

Sue is a well-known specialist in migration, equalities and service provision especially local services, advice and community development.