Retaining worker status- gap between job ending and JSA being claimed

I know we’ve done this before but would be grateful for opinions.

Client’s job ended in late Feb. Gap of 8 weeks whilst client lived on savings and hunted for another job (was understandably very reluctant to claim JSA and become reliant on the state). DWP is arguing (for purposes of retained worker status- client now challenging IS decision following pregnancy-related claim) that she has lost her worker status due to the gap.

I’ve successfully got around a gap of a few weeks before now but is 8 weeks stretching it too far?

Can she evidence the job search?

Did the 8 week gap end with her obtaining further employment?

The issue is (as you know) whether she remained in the labour market - a person can do this without meeting what would be required of them were they to claim JSA (completing pointless CVs, applying for any old job that the JC+ adviser thinks appropriate). In fact, where a person has specific skills and a realistic prospect of obtaining further employment, the pointless running around forced on them by JSA might actually present a barrier to their being able to direct their efforts in finding employment to best effect.

So if the answer to the questions above is positive, particularly the second question, I think you’ve got a real argument - in any sensible assessment of whether a person remained in the labour market, what better evidence can there be that they did remain than the fact that their efforts to find work were succesful?

1964 - 19 July 2016 09:35 AM

I’ve successfully got around a gap of a few weeks before now but is 8 weeks stretching it too far?

Is this useful?

CH/3194/2014

http://www.bailii.org/uk/cases/UKUT/AAC/2015/121.html

Thanks both.

She had no luck in her search for a new job hence her eventual JSA claim. Not sure what evidence we can provide to demonstrate her work search during this period yet- am meeting her for the first time tomorrow- so will see what transpires.

Appreciated.

I’m currently requesting permission to appeal to UT in a casue with a similar gap; again a hurdle is how to evidence jobseeking in the interim period. Here’s some caselaw extracts I used:

The concept of involuntary unemployment under Article 7 has been explained in SSWP v MK (IS) [2013] UKUT 163:

46. In my view, in determining whether persons are in involuntary unemployment for the purposes of Article 7 of the Citizenship Directive, the proper question is whether they remain engaged in the labour market. In determining the answer to that question, the reasons why the previous employment ended, the intentions of the person concerned, and their actions and the circumstances obtaining after they have left employment are all relevant matters.

This supports the findings made in SSWP v IR (IS) [2009] UKUT 11:

15. The Secretary of State has argued that Mr White’s reasoning does not apply to this case, because here the claimant made a claim for a jobseeker’s allowance, which allows her unemployment to be recorded, rather that income support, which does not. I accept that that is a difference between the cases. However, there is still a question of the speed with which the claim must be made. A gap between becoming involuntarily unemployed and claiming jobseeker’s allowance is not necessarily fatal. Whether it is significant or not will depend on the length of the gap and the reasons for it. Put into the legal terms of EC analysis, the question is whether the gap shows that the claimant has withdrawn from the labour market. A claimant may take a few days to think about the future or to rest after a stressful period leading to redundancy. That may be consistent with remaining in the labour market. In contrast, a claimant who decides to spend six months backpacking in the Australian outback before looking for work has clearly left the labour market for the time being. The tribunal must investigate this issue at the rehearing.

This has been elaborated on further in SSWP v MM (IS) [2015] UKUT 128:

49. The claimant’s representative has this to say about the delay [at page 124 of the documents I have]:
10. From 10/04/2011 to 13/05/2011, [the claimant] was in the hope of a new job offer being made by the agency and thus did not make any social welfare benefit claim despite being eligible to claim Jobseekers Allowance (JSA). [The claimant] has informed us that following the termination of her work, between the periods 10/04/2011 to 13/05/2011, she was able to live off the remainder of her savings.
11. As nothing had transpired from the agency, on the 13/05/2011, our client had no option but to sign on for JSA. … .
50. The claimant herself, in her letter stamped as received by the Upper Tribunal on 21 February 2014 [page 186 of the documents I have] said:
During the period between the end of employment and registering at Job Centre I did not work, I was waiting for work (I was already pregnant and there was no work for me) … .
51. In these circumstances and in the face of a delay of around five weeks, I would not regard there as being undue delay in making the claim for a jobseeker’s allowance. The claimant acted promptly when it became apparent that there was no further work for her from the agency. I also note in passing that Easter Sunday in 2011 fell on 24 April, so the period of delay included the Easter weekend.

Oooh, that last one is particularly useful Simon, as it mirrors my client’s circs exactly. Thanks most kindly for your input.