GPOW refusal and reclaim following client working

Hi

I wondered if anyone had any thoughts on this. Basically the client had had a previous claim for JSA and this was ended due to GPOW reasons. He had then returned to work for around 3 months which looks like this could be considered genuine and effective work. He then had a gap of around 48 days and then some further work on a relatively sporadic and patchy basis up until a 2nd claim for JSA in December last year. This was refused on the basis that that he had already had his 91 days.

I have tried to put an argument to say that he has retained his worker status but this looks potentially a bit of an uphill struggle.

I did note this however in DMG 15/14:

21 Where a claimant makes a further claim to JSA after having a GPoW assessment and they
1. obtained genuine and effective work and had worker status through that job or
2. had been outside the UK for
2.1 a continuous period of 12 months or more or
2.2 less than 12 months, and they satisfy the GPoW at the point of this further claim
they may be entitled to a new period on JSA1. They must satisfy the HRT, and if they have had more than a short absence from the UK, they must also satisfy the 3 month residence requirement (see DMG 071192 – 071197). Then, if either 1. or 2.1 are met, they are entitled to a new relevant period on JSA before a GPoW.
If 2.2 applies (i.e. they have been absent from UK for less than 12 months and at the point of this claim they have met the compelling evidence2 requirements for the GPoW at paragraph 15 above), they are entitled to claim JSA up until the job start date (if they have one) or for the relevant period, followed by a GPoW assessment.
If neither 1. or 2.1 or 2.2 are met, the claimant is not entitled to JSA.
1 Imm (EEA) Regs, reg 6(9); 2 reg 6(11)

This seems to endorse the view that if they have had some genuine and effective work and then claim again then they should get a further 91 days at least.

Obviously, there are the challenges to the GPOW test itself that I have also been running at the same time.

Thanks,
Rob S
NCCWRS

and whilst it’s late, you could also presumably point out that the original GPOW assessment was clearly wrong since he did get work which was genuine an effective .......thus reinforcing your arguments on the entire test….

But what about the requirement to have left the UK?  Ruth

The redrafted I(EEA) Reg 6 is complicated, but the way I read it the requirement for an absence from the UK (“Condition C”) does not apply to retained worker status, it only affects the right to reside as a jobseeker entering the job market.  If you have already had:

(a) six months’ retained worker status, or
(b) 91 days as a jobseeker

you cannot be a jobseeker again without having an absence from the UK, and you are GPOWed instantly if that absence was less than 12 months.  But the OP is arguing retained worker status after less than 12 months of employment, which would entitle the client to another six months max of JSA and, if necessary, HB as well.

Basically, a jobseeker has to satisfy conditions A, B and C - C is the absence from UK condition; whereas a person who retains worker status only has to satisfy conditions A and B. 

Of course the UT and the courts ignore all this rubbish and apply one simple subjective test - are you still genuinely in the job market?  But you cannot really expect first-instance DMs to treat the legislation with such disdain.  However the OP’s client arguably does have a route to six months’ retained worker status even within the strict framework of the regs.

Agree that the requirement in amended EEA regs is for retained worker status OR absence abroad, however it does not seem clear cut in this case that worker status has been retained given the gap between the regular employment and the patchy work that preceded the 2nd JSA claim. It would need to be argued that either the patchy work was genuine and effective, or at the least that the client remained in the labour market following the termination of regular employment.

Thanks for the replies above.

I had looked at the regs but could not work them out in truth.  My instinct was that it seemed odd that another 91 days would be allowed but that seems to be how the paragraph in the DMG read to me with word or.  When I looked at the legislation I could not seem to see how this did ensdorse this positon. Hence the question.

Thanks,

Rob s

Thanks HB Anorak for this clarification about when there is a requirement to have left the UK - I hadn’t realised this and it is of immediate help to one of my clients.  Ruth