retaining worker status following under 1 yrs employment

What happened between Nov 14 and Feb 15?

Elliot Kent - 11 February 2016 03:55 PM

What happened between Nov 14 and Feb 15?

The DWP were (slowly) making a decision on IR-ESA entitlement.

Gotcha.

Yeah I think I could accept that.

I would add that continued entitlement to jobseekers allowance during 11-13 would still have been dependent on a right to reside and the DWP could quite properly have decided to stop payment if there was evidence of an event indicating that your client had withdrawn from the labour market during that period. The fact that they didn’t indicates prima facie that your client was attending the jobcentre regularly and complying with work search requirements. Depending on the evidence, it could be possible to submit that the tribunal has no business (or has no evidence to enable it to) go behind what the DWP accepted was the case back then.

Hello, May I add this situation to this thread as the title fits exactly?! 
It is a different circumstance though. perhaps more straightforward but I’m repeatedly bewildered by the R2R issues I crave for clarity

I have a client who has very recently, voluntarily given up work to look for a better job. 
She is looking for work and has a very good chance of being employed.
She is Portuguese, a lone parent, mother to one 2 year old boy, living alone in private rented accommodation.
She was in the UK for 3 years and had been in work for 51 weeks continuously at 16+  hrs per week, sometimes more, averaging £475 pcm,

Does she retain worker status and therefore able to make an Income Support claim, ( as lone parent of a child under 5)
and/or if she claims JSA does she retain worker status in respect of an associated HB claim?

She had been given a form to claim IS, I did not think she will be able to claim this so stopped that claim and started a claim for JSA (even though I realise she will possibly be sanctioned for leaving her job voluntarily)

My experience tells me that her claim for IS will be refused on the grounds that she is a EU national, but can she claim on the grounds that she as a temporary R2R as a worker (retained worker status) ?

Please help!

Yes: it is possible to be “involuntarily” unemployed despite having willingly resigned from a job. The key question is whether she remains in the job market.  The reasons why she left the last job are relevant only to the question whether she is serious about finding another one.

Thus, for example, if she doesn’t like getting up early or finds the work boring, there is a danger these problems would arise in any other job and there would be serious doubt about whether she is involuntarily unemployed.

On the other hand, if she left because the hours were inflexible and she needs to find work she can fit around child care, she might well be involuntarily unemployed

If the decision to self terminate employment is reasonable in all the circumstances, then one could argue it is involuntary unemployment. But in YP Adviser’s case the client gave up a job to search fro a better one. I imagine that will not go down very well at the Jobcentre in terms of reasonableness. We know that RTR remains a considerable pickle for Jobcentres.

The prospect or otherwise of a JSA sanction should probably not in itself determine what constitutes reasonable behaviour in terms of involuntary unemployment for retained worker status. But surely the Directive and the domestic regs intend ‘involuntary unemployment’ to mean either redundancy, or the end of a fixed term contract, or other compelling circumstances (as HB Anorak speculates).

The fact that the client wishes to claim IS instead of JSA pending the establishment of a better job may also be misconstrued, even though we know you can be a jobseeker whilst on IS. If the client is as employable as the facts imply, I would suggest getting any job pronto, reconnect to clear ‘qualified person’ status, and then look for the better job on that basis.

Involuntay unemployment - see attached.

Don’t disagree with any of that. But to crystalise a little….

I think the key obstacle for the right to reside issue and retaining worker status via involuntary unemployment is the fact she was only working 16 hours a week in the job that she gave up - this is going to pose some difficulty with any argument that she gave up the job in order to look for a better/more suitable one. That might wash where someone works such long hours that they’re clearly going to struggle to find the time to search for another job…..but on 16 hours a week? I would be sceptical…..

Voluntary unemployment means that you are not looking for work. Involuntary unemployment is the opposite and means that you are.

Elliot Kent - 12 February 2016 11:25 AM

Gotcha.

Yeah I think I could accept that.

I would add that continued entitlement to jobseekers allowance during 11-13 would still have been dependent on a right to reside and the DWP could quite properly have decided to stop payment if there was evidence of an event indicating that your client had withdrawn from the labour market during that period. The fact that they didn’t indicates prima facie that your client was attending the jobcentre regularly and complying with work search requirements. Depending on the evidence, it could be possible to submit that the tribunal has no business (or has no evidence to enable it to) go behind what the DWP accepted was the case back then.

Thanks Elliot, I agree it’s worth emphasising the point that continuous JSA entitlement stongly indicates there was no withdrawal from the labour market, and is dependent on a R2R. My only concern is the possible determination that this R2R is ‘relegated’ from worker status to that of a workseeker somewhere within that 2 yr period. Does anyone have experience of this prior to the legislative changes and GPoW test?

Sally63 - 15 February 2016 06:32 PM

Voluntary unemployment means that you are not looking for work. Involuntary unemployment is the opposite and means that you are.

No-one is disputing that. It is what Judge White said in the CIS/2423/2009 decision that nevip posted. And he did make it clear this means the test is concerned with whether the claimant is actually in the labour market now, rather than the particular circumstances in which they came to be out of work.

But he also said (as the UT frequently decides) that it is necessary to look at all the circumstances - and there will be cases where the particular circumstances in which the claimant came to be unemployed might have some bearing on the veracity of any assertion that they are voluntarily unemployed and that actually are in the labour market.

So my post was directed at the specific circumstances of the client in YP Adviser’s post;

- we are told she gave up work of 16 hours a week in order to find a better job. Why could she not look for such a job whilst continuing to work?

- she appears to want to claim IS rather than JSA. Whilst it is clear that a person is able to remain in the labour market whilst claiming IS rather than JSA, one would normally expect to be arguing this where the claimant (most likely a single parent) had previously received bad advice from the Jobcentre and so had already made the IS claim by the time they were seeking advice. If a person is trying to assert that they remain in the labour market and is fully aware that they might be able to claim IS or JSA and then consciously chooses to claim IS, this presents a problem….

None of the above is to say that there might not be very good explanations for these things, but they are potential pproblems and we can’t wish them away….

nevip - 15 February 2016 01:09 PM

Involuntay unemployment - see attached.

Thanks Nevip, that is a mighty useful document.

Setting aside the voluntary / involuntary argument for a moment I read that if a EU claimant retains worker status then she should be able to claim the appropriate benefit for her situation, ie a lone parent of a child under 5. The key issue appears to be is she still in the labour market?
However it appears imperative the claimant needs to claim JSA to prove this, which seems perverse.

As for voluntary/ involuntary: she may have given up her job (of 16+ hours, as well as the primary carer of a child, which is recognised as full time work as far as the benefit /tax credit system is concerned)
Doing so voluntarily is only one consideration to be taken into account, as soon as she declares she is looking for work, then she is involuntarily unemployed, and that fact needs to be factored into the equation, along with what is actually doing to find work and her employability. There is no real break in the connection with the labour market and she is actively looking for work, so she retains worker status for at least 6 months and should be awarded Income Support.

I think the GPoW test is only applied after that period of time.

My advice for her to claim JSA was based on my experience of the DWP challenging EU workers / jobseekers status to R2R and so stopping payments for up to 10 weeks while the matter is investigated but it seems she would have a good argument to retain her worker status and hence be eligible for Income Support.  But would I have to go to tribunal to assert this?

YP Adviser - 25 February 2016 12:36 PM

Setting aside the voluntary / involuntary argument for a moment I read that if a EU claimant retains worker status then she should be able to claim the appropriate benefit for her situation, ie a lone parent of a child under 5. The key issue appears to be is she still in the labour market?
However it appears imperative the claimant needs to claim JSA to prove this, which seems perverse.

On this point, see p.141 Migrants Handbook 7th edition, “Registering as a jobseeker” section. Second paragraph explains clearly how someone can claim IS and fulfill this condition, if they have retained worker status. Authority for this is Elmi

Paul_Treloar_AgeUK - 25 February 2016 12:46 PM

YP Adviser - 25 February 2016 12:36 PM

Setting aside the voluntary / involuntary argument for a moment I read that if a EU claimant retains worker status then she should be able to claim the appropriate benefit for her situation, ie a lone parent of a child under 5. The key issue appears to be is she still in the labour market?
However it appears imperative the claimant needs to claim JSA to prove this, which seems perverse.

On this point, see p.141 Migrants Handbook 7th edition, “Registering as a jobseeker” section. Second paragraph explains clearly how someone can claim IS and fulfill this condition, if they have retained worker status. Authority for this is Elmi

Yes.  To really nail it down claimants need to ensure that they tick yes to the are you looking for work question on the right to reside part of the IS claim form.  That said, it will not, in itself, be fatal if a claimant doesn’t.