The DWP has issued guidance to decision-makers on benefit entitlement in the wake of Ibrahim and Teixeira (our report here) in the European Court, for when there is a likely Article 12 Regulation (EEC) No 1612/68 derived right for a child or children to remain to complete education. A copy of the guidance can be found here [link to PDF. Thanks to Disability Alliance]. The guidance is interesting not just for benefit entitlement, but it is a fair guess that housing authorities would follow a similar line.
A couple of things strike me about the guidance. One is the insistence that the Claimant must be primary carer AND parent (or step-parent) to be eligible. See para 7 and elsewhere. I’m not sure that this is so. Granted on the facts of Ibrahim and Teixeria, the carers were parents, but the Art 12 right belongs to the child, and, while a parent must have been a worker in the UK at some point, I can’t see how the ratio of those cases requires the primary carer to be a parent. The benefit/housing entitlement stems from the child’s right to remain and to be supported and cared for while they do. On that basis, the usual primary carer for the children would be the relevant claimant. Will this take another case to resolve?
Secondly, although I’m a lot less sure of my grounds here, the guidance is firm that children of A8/A2 nationals will not gain Art 12 rights unless the migrant worker has completed the necessary 12 months registered work. (Para 10). This would mean that although such a child might have been in school for a year, no Art 12 right to continue that education. Again, on the basis that the Art 12 right is the child’s, not the parents, I can’t see how this would work. I suppose the counter argument is that the accession migrant is not an EU worker during the ‘qualifying’ period, and thus the child can’t accrue Art 12 rights through their residence. I’m not convinced, but I am happy to have it explained to me. Preferably using short words.