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Forum Home  →  Discussion  →  Income support, JSA and tax credits  →  Thread

need advice regarding JSA for EEA client

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Sue123
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EEA Family Support, Children's Centre Calderdale

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Hi, can someone please advise?
I have a client who has been in the UK for 2 years, she is from the Czech Rep.
All her children are over 18 years old now. She worked for 1 year and was claiming JSA when she’s lost her employment but after 6 months her JSA stopped.
Is there any way for her to win an appeal? I don’t think she has any grounds to win, but maybe I am not aware of all the possible reasons she could win.
Can someone please advise?
thank you

1964
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Deputy Manager, Reading Community Welfare Rights Unit

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Think we need more info Sue.

It’s possible she might have a right to reside as a ‘family member’ of someone else.  Firstly, is she by any chance married to another EEA national (albeit estranged from him) and if so, do we know anything concerning where he is/what he’s doing? Secondly, are any of the (now adult) children working? If so, she could possibly have a right to reside as a family member of one of the children on the presumption that they’re EEA nationals.

Edited to say- the above is not going to get around the GPoW test issue but it might at least result in her continuing to receiving HB (or claiming ESA if she has any health issues, etcetera).

[ Edited: 12 Oct 2015 at 03:09 pm by 1964 ]
Martin Williams
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Sue3131 - 12 October 2015 11:49 AM

Hi, can someone please advise?
I have a client who has been in the UK for 2 years, she is from the Czech Rep.
All her children are over 18 years old now. She worked for 1 year and was claiming JSA when she’s lost her employment but after 6 months her JSA stopped.
Is there any way for her to win an appeal? I don’t think she has any grounds to win, but maybe I am not aware of all the possible reasons she could win.
Can someone please advise?
thank you

What about: she has a right to reside as a jobseeker and the amendments to the I(EEA) Regs etc are unlawful…. http://www.cpag.org.uk/sites/all/modules/contrib/pubdlcnt/pubdlcnt.php?file=/sites/default/files/CPAG-Kapow-to-the-GPOW-0715.pdf&nid=2885

 

Sue123
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EEA Family Support, Children's Centre Calderdale

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1964 - 12 October 2015 02:59 PM

Think we need more info Sue.

It’s possible she might have a right to reside as a ‘family member’ of someone else.  Firstly, is she by any chance married to another EEA national (albeit estranged from him) and if so, do we know anything concerning where he is/what he’s doing? Secondly, are any of the (now adult) children working? If so, she could possibly have a right to reside as a family member of one of the children on the presumption that they’re EEA nationals.

Edited to say- the above is not going to get around the GPoW test issue but it might at least result in her continuing to receiving HB (or claiming ESA if she has any health issues, etcetera).


Hi, thanks a lot for your replies.
She has got 2 children, both of them are over 18 and working, so not sure if she could use that as her right to reside?
However I believe that they stopped her JSA because although she worked for a year, she was claiming JSA for 6 months and now is no longer entitled.
She wants to appeal but I am not sure how to do her appeal, because I am not sure if she has any chance to win.
thank you

 

Sue123
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Martin Williams - 12 October 2015 05:26 PM
Sue3131 - 12 October 2015 11:49 AM

Hi, can someone please advise?
I have a client who has been in the UK for 2 years, she is from the Czech Rep.
All her children are over 18 years old now. She worked for 1 year and was claiming JSA when she’s lost her employment but after 6 months her JSA stopped.
Is there any way for her to win an appeal? I don’t think she has any grounds to win, but maybe I am not aware of all the possible reasons she could win.
Can someone please advise?
thank you

What about: she has a right to reside as a jobseeker and the amendments to the I(EEA) Regs etc are unlawful…. http://www.cpag.org.uk/sites/all/modules/contrib/pubdlcnt/pubdlcnt.php?file=/sites/default/files/CPAG-Kapow-to-the-GPOW-0715.pdf&nid=2885

 


Hi, thanks a lot for this, I am going to look at this, however I am not sure if we would have much luck with it. I will probably try to appeal the decision to stop her benefit after 6 months.
she is divorced, and her ex husband lives in the Czech Republic.
I think her only chance could be that her children are working?

 

Sue123
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can I also please ask, her daughter might have permanent residence, if they can count her 4 months jobseeking period in it. But I am not sure if her mother (client) could then claim JSA or would she be able to also get permanent residence if her daughter (over 18) had permanent residence?

Martin Williams
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Sue3131 - 13 October 2015 02:40 PM
Martin Williams - 12 October 2015 05:26 PM
Sue3131 - 12 October 2015 11:49 AM

Hi, can someone please advise?
I have a client who has been in the UK for 2 years, she is from the Czech Rep.
All her children are over 18 years old now. She worked for 1 year and was claiming JSA when she’s lost her employment but after 6 months her JSA stopped.
Is there any way for her to win an appeal? I don’t think she has any grounds to win, but maybe I am not aware of all the possible reasons she could win.
Can someone please advise?
thank you

What about: she has a right to reside as a jobseeker and the amendments to the I(EEA) Regs etc are unlawful…. http://www.cpag.org.uk/sites/all/modules/contrib/pubdlcnt/pubdlcnt.php?file=/sites/default/files/CPAG-Kapow-to-the-GPOW-0715.pdf&nid=2885

 


Hi, thanks a lot for this, I am going to look at this, however I am not sure if we would have much luck with it. I will probably try to appeal the decision to stop her benefit after 6 months.
she is divorced, and her ex husband lives in the Czech Republic.
I think her only chance could be that her children are working?

 

I really think you should put the argument that the UK rule which states that a claimant cannot retain status for more than 6 months after working a year unless they can provide compelling evidence of genuine prospect of work is ulawful.

Article 7(3)(b) of Directive 2004/38 does not have a time period of 6 months after which evidence needs to be compelling.

The Upper Tribunal, whose decision is binding on the First-tier Tribunal have said that the test for how long you retain status under Article 7(3)(b) is as follows:

53. Under Article 7(3)(b) of the Citizenship Directive, there is no indication of the duration for which a person continues to be treated as a worker. My interpretation is that the period of retention of the status is open-ended though not forever more. I justify this in part by the provision in Article 7(3)(c) of the Citizenship Directive which limits the period of retention of the status to “no less than six months” where the period of employment is less than a year.
54. The claimant retained her worker status in April 2011 and claimed income support in March 2012. That is a period of less than a year. If a person falling within Article 7(3)(b) is able to retain the status of worker for no less than six months, then it seems to me to be eminently reasonable to conclude that there is no difficulty in a person retaining worker status under Article 7(3)(b) of the Citizenship Directive for a year in the absence of some intervening event which indicates that the person has withdrawn from the labour market entirely.

See here for a copy of the case:
http://www.osscsc.gov.uk/Aspx/view.aspx?id=4452

There is nothing in that case about compelling evidence etc.
————
On your other point about the daughter working then it will only assist claimant if she counted as dependent on her daughter in that period- for this she must actually have been receiving from daughter material assistance with the basic necessities of life.

 

Sue123
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Hi, thanks a lot for your reply.
Can I just say that she is dependant on her daughter as the daughter lives with her and now has to pay the rent as mother will not be entitled to it, daughter is supporting mother and providing food and other things as mother can hardly afford anything with £72 a week. Now when her benefit is stopped, the daughter will have to provide everything for the mother.

thanks

Martin Williams
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Those facts would help with a new claim - on grounds dependent on daughter.

However, will be harder to use them for the appeal as at point decision made it seems not dependent? Is that right? If it is then I guess you need the Article 7(3)(b) point above.

Sue123
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Martin Williams - 13 October 2015 06:03 PM

Those facts would help with a new claim - on grounds dependent on daughter.

However, will be harder to use them for the appeal as at point decision made it seems not dependent? Is that right? If it is then I guess you need the Article 7(3)(b) point above.

Hi, I am not sure if she could get another JSA now? I mean the law says you can only claim for 91 days or 6 months and that’s it, so if she made a new claim, would she be entitled?
her daughter lives with her but they never told anyone, could she say her daughter had to move it to help with rent and therefore she is now dependent on her?
thank you

Martin Williams
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Sue3131 - 19 October 2015 10:43 AM

Hi, I am not sure if she could get another JSA now? I mean the law says you can only claim for 91 days or 6 months and that’s it, so if she made a new claim, would she be entitled?
her daughter lives with her but they never told anyone, could she say her daughter had to move it to help with rent and therefore she is now dependent on her?
thank you

Hmmm:

1. The UK law says that you have a right of residence as a jobseeker for 91 days unless you can provide compelling evidence etc.

2. However, that does not mean you cannot have another right of residence as something other than a jobseeker which is good enough to enable you to claim JSA for longer than the 91 days

3. In other words the 91 days rule (if it is lawful which we think it is not) only excludes those who have no other right to reside than that as a jobseeker from entitlement after 91 days.

4. She can reclaim JSA now if she is currently a dependent of her daughter as you suggest.

 

Sue123
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Martin Williams - 19 October 2015 12:50 PM
Sue3131 - 19 October 2015 10:43 AM

Hi, I am not sure if she could get another JSA now? I mean the law says you can only claim for 91 days or 6 months and that’s it, so if she made a new claim, would she be entitled?
her daughter lives with her but they never told anyone, could she say her daughter had to move it to help with rent and therefore she is now dependent on her?
thank you

Hmmm:

1. The UK law says that you have a right of residence as a jobseeker for 91 days unless you can provide compelling evidence etc.

2. However, that does not mean you cannot have another right of residence as something other than a jobseeker which is good enough to enable you to claim JSA for longer than the 91 days

3. In other words the 91 days rule (if it is lawful which we think it is not) only excludes those who have no other right to reside than that as a jobseeker from entitlement after 91 days.

4. She can reclaim JSA now if she is currently a dependent of her daughter as you suggest.

Hi, thank you, just to clarify, if she makes a new claim for JSA, what will happen if she also makes an appeal for the old claim? will she be able to appeal and also have a new claim at the same time?

Also does she have a chance to get JSA if she claims based on the fact that her daughter has permanent right to reside (she worked for 4,5 years and the rest was a jobseeker) and that she is now dependant on her?

thank you

Martin Williams
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Sue3131 - 19 October 2015 04:18 PM

Hi, thank you, just to clarify, if she makes a new claim for JSA, what will happen if she also makes an appeal for the old claim? will she be able to appeal and also have a new claim at the same time?

Also does she have a chance to get JSA if she claims based on the fact that her daughter has permanent right to reside (she worked for 4,5 years and the rest was a jobseeker) and that she is now dependant on her?

thank you

1. In the event she both makes a new claim to JSA (which she should do as it seems her circumstances have changed since the JSA previously ended as now she is a dependent of her daughter) then:

a) any decision on that will run from when she made the claim down to the date of decision- it will be this decision which determines her entitlement for that period.

b) the appeal will be about her entitlement from when they stopped her benefit down to the day before her new claim.

2. Yes she has every chance to get JSA if the facts are that:

a) Her daughter has a permanent right of residence through 4 1/2 years work plus 6 months retaining worker status through being a jobseeker; and

b) client is dependent on daughter in that she receives material assistance which contributes to the necessities of life (help paying the rent) from her.

If those are the facts then she has a cast iron case for entitlement (indeed she could even claim irESA or whatever- it is a good enough right of residence to access any benefit for which she meets the other conditions of entitlement).

Sue123
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ok thank you, I will advice client of this

Sue123
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Hi, I have spoken to the client, she does not want to appeal the decision and doesn’t think she can get JSA. Her daughter called the helpline and was told her mother would not be entitled to JSA.

what other options could the mother have?
The daughter is really worried that she will not be able to pay for the rent and support her mother with her wage.
thank you

1964
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Well- if the DWP accepts that she is a dependent family member of the daughter she could (a) reclaim JSA or (b) claim ESA (if she has health issues and a GP is willing to issue medical certificates). She can also make a further HB claim (currently based on nil income) again based on her being a dependent family member.

Having said that, she should be prepared that it probably won’t be straightforward and she may well have to challenge negative decisions.