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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

Yet another R2R Question-any hope for this chap?

Welfare Rights Nottinghan City Council
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Nottingham City Welfare Rights Service

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Client first came to the UK, from Poland, in 2007. He worked for a year before joining the Workers Registration Scheme from 10 October 2008. He had not joined befor because his first employer told him that he did not need to or, more likely, that did not tell him that he did. Continued to work until about 2011. When employment finished he claimed jobseeker’s allowance This was paid until 22 May 2015, when it ended under the restrictions that require a job seeker from abroad to show that he has a genuine prospect of work.
 
At some point client spent a year in hospital. Did not, or Not able to, say when or why that was.
 
Client has subsequently become unwell – understands he may have abrain tumour. Claimed employment and support allowance, which was turned down on 4 August 2015. The decision states that this was because of his income being out of scale, but the explanatory note indicates that it was because of failing the right to reside test.
Housing Benefit has also been stopped (decision dated 1 July 2015) for same reason.
 
Client has no family in UK.
 
Has no income. Relies on foodbanks and charity to survive.

Any thoughts appreciated!

1964
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Deputy Manager, Reading Community Welfare Rights Unit

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Shound have a permanent ROR from what I can see. Was working under WRS with effect from 10/10/08 (so was working legally) and this remained the case until 2011 when the job ended. On presumption that he claimed JSA almost immediately and remained consistently on JSA until 22/5/15 he would have a permanent ROR with effect from 10/10/13 (in which case, his JSA shoudn’t have been terminated either being as the GPoW test shouldn’t have been applied to him).

I suppose it is going to depend on whether there were any breaks in his JSA claim- such as a year in hospital for example- but on the face of it, he should be OK.

past caring
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Welfare Rights Adviser - Southwark Law Centre, Peckham

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1964 - 25 November 2015 06:29 PM

I suppose it is going to depend on whether there were any breaks in his JSA claim- such as a year in hospital for example- but on the face of it, he should be OK.

That need not be a barrier. He could retain worker status under reg. 6 (2)(a) on the basis of temporary incapacity whilst in hospital - and without having claimed ESA or any other benefit. Don’t think it would require anything more than a GP letter confirming the hospital admission and that it was a temporary incapacity. Also worth bearing in mind the condition could be a permananet one, it’s the incapacity that has to have been temporary - if he had a year in hospital and then returned to jobseeking/claiming JSA (which would again be on the basis of retained worker status - even if the DWP awarded on the basis of his being a workseeker - they regularly get this wrong) that would be good evidence of that point….

Welfare Rights Nottinghan City Council
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Nottingham City Welfare Rights Service

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1964 - 25 November 2015 06:29 PM

Shound have a permanent ROR from what I can see. Was working under WRS with effect from 10/10/08 (so was working legally) and this remained the case until 2011 when the job ended. On presumption that he claimed JSA almost immediately and remained consistently on JSA until 22/5/15 he would have a permanent ROR with effect from 10/10/13 (in which case, his JSA shoudn’t have been terminated either being as the GPoW test shouldn’t have been applied to him).

I suppose it is going to depend on whether there were any breaks in his JSA claim- such as a year in hospital for example- but on the face of it, he should be OK.

Thanks for the response from both-i did not realise that periods of jobseeking would count towards the 5 years. Makes this a lot easier than i first thought.

1964
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Deputy Manager, Reading Community Welfare Rights Unit

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...And Past Caring is quite right- even if there was a lengthy hospital stay in there somewhere, as long as there is some evidence of it your client should be fine. He doesn’t have to have claimed benefit on sickness grounds during that period for it to count.