EEA client working 12h/week and claiming JSA, why doing GPoW

Hi, I have a question.
my client is EEA national and is claiming JSA and working 12h/week.
She just received a letter that she has to provide compelling evidence that she has GPoW.
Wouldn’t she be exempt from this if she is already working 12h/week?

Any advice would be much appreciated.

thank you

Is there a specific exemption for people working 12 hours a week? Surely what matters is whether the work is genuine and effective, in which case she would be a worker rather than a Jobseeker?

DWP/HMRC guidance states DMG 1/14
EEA national who has worked as an employee will be automatically considered as a worker if their average gross earnings are at or above minimum earnings threshold £153 14/15 for a continuous period of 3 mths immediately before date they claimed benefit and if not each case must be looked at on its own merits that work is deemed “genuine and effective” and not “marginal and ancillary”

thank you for your replies.
she doesn’t earn over £153 a week, as she only works 12 hours, so earning around£72 a week.
However her work should be classed as genuine.
Although she wants to work 16h a week so she doesn’t have to sign on Jobcentre, I assumed that as long as she is in employment, the JCP can’t say she has no genuine prospect of work, because she is already working.

Does this mean the JCP can say she has no GPoW and take her benefit?
I can’t believe this would happen

thank you

I believe the minimum earnings threshold was introduced to close the loophole whereby a person could claim to be a worker (and therefore be classed as habitually resident) while, for example, selling the “big issue”, but earning a negligible amount and remaining benefit-dependent.

If the DWP decide her work is not “genuine and effective”, then yes, they can remove her entitlement unless she can derive Hab Res through another channel.

@Ben The minimum earnings threshold wouldn’t itself prevent a Big Issue seller having worker status, as the tier two assessment kicks in?

@Sue JCP probably want to see that she has a genuine prospect of finding genuine and effective work. Good question, though. Would they expect the claimant to have a genuine prospect of finding ANY work, or genuine and effective work, or full-time work? Or just enough to get off JSA?

The Minimum Earnings Threshold is not in any way a change in the law. It is simply a DWP administrative practice. The question which the genuine and effectiveness test answers is, among some other criteria, whether someone is a worker or self-employed. The Court of Justice of the European Union has decided what constitutes worker/self-employed status. This is an autonamous EU law concept. National law cannot therefore define the scope of ‘worker’ or ‘self-employment’. Anything UK law says should be checked against what the law actually is according to the CJEU.

The criteria are set out in CPAG at pp 1536-7 where some of the case law is referenced. To give some illustrations:

C-14/09 Genc - someone worked for 5.5 hrs pw - could constitute G&E work.
344/97 Bettray - Court said that the level of earnings are not the only factor. That case, I think, was a part-time piano teacher. Work could be G&E even if it was not enough to survive on without benefits (see also 53/81 Levin).
I think there’s also a case, though I can’t remember it, about agency and zero hour contracts - these can also be G&E.
CE/2190/2011 - The work can be cash-in-hand and possibly even illegally performed and still be G&E.

Additionally, if someone is self-employed, you also need to take account of the ‘feast and famine’ nature of it. Sometimes you will earn, sometimes you will not, even possibly for extended periods of time.

To answer your question, Sue, as your client is working 12 hours pw and is being paid for it, she is almost certainly a worker / self-employed. She should therefore be protected by article 45 (or 49 if self-employed) of the Treaty on the Functioning of the European Union and article 24 of Directive 2004/38, which prohibit discrimination. She should not be subject to the GPoW test.

To answer your question, Sue, as your client is working 12 hours pw and is being paid for it, she is almost certainly a worker / self-employed. She should therefore be protected by article 45 (or 49 if self-employed) of the Treaty on the Functioning of the European Union and article 24 of Directive 2004/38, which prohibit discrimination. She should not be subject to the GPoW test.[/quote] -
She should not be subject to the GPoW test. - sorry, could you explain this to me a bit more?
I have looked at the articles but I don’t understand them much.
thank you

The GPoW test is part of a test to establish whether a person has the status of ‘jobseeker’ under the Immigration (EEA) Regs.

Someone who is working, for example, has a right to reside under article 45 TFEU and article 7 of Directive 2004/38. As such, they must not be discriminated against on the basis of their nationality. The effect of applying the GPoW test to someone who is a worker is that they are being discriminated against on the basis of their nationality. This is because the GPoW test is not applied to British nationals.

Another (and more direct) way of thinking about is to look at the JSA Regs, in particular regulations 85 and 85A. Regulation 85 says that a ‘person from abroad’ has an applicable amount of ‘nil’ - in other words, they are not entitled to JSA. A person from abroad is defined in regulation 85A. A person from abroad is someone who fails the habitual residence test. You fail this test if you do not also have a right to reside. However, reg 85A(4) says that a person is not a ‘person from abroad’ if he is a worker.

Therefore, if the DWP applies the GPoW test to your client, concludes that she fails and that she does not have a RTR, they are also breaching reg 85 read with reg 85A(4) because your client would not be counted as a ‘person from abroad’.

This is why it’s important to remember that the GPoW test is not part of the JSA entitlement criteria. It’s part of whether someone has a RTR as a jobseeker under the EEA Regs. But if someone is a worker then, as the JSA regs say, they are not barred from JSA (unless, of course, they do not meet the other entitlement crtieria).

Ben E Fitz - 06 March 2015 12:32 PM

I believe the minimum earnings threshold was introduced to close the loophole whereby a person could claim to be a worker (and therefore be classed as habitually resident) while, for example, selling the “big issue”, but earning a negligible amount and remaining benefit-dependent.

If the DWP decide her work is not “genuine and effective”, then yes, they can remove her entitlement unless she can derive Hab Res through another channel.

I really don’t think we should describe a legal right which is established by the Court of Justice as a “loop hole”. It is absolutely clear that someone may be a worker and remain entitled to benefits. See for example Kempf:

16 FOR THOSE REASONS , IT MUST BE STATED IN ANSWER TO THE QUESTION SUBMITTED FOR A PRELIMINARY RULING THAT WHERE A NATIONAL OF A MEMBER STATE PURSUES WITHIN THE TERRITORY OF ANOTHER MEMBER STATE BY WAY OF EMPLOYMENT ACTIVITIES WHICH MAY IN THEMSELVES BE REGARDED AS EFFECTIVE AND GENUINE WORK , THE FACT THAT HE CLAIMS FINANCIAL ASSISTANCE PAYABLE OUT OF THE PUBLIC FUNDS OF THE LATTER MEMBER STATE IN ORDER TO SUPPLEMENT THE INCOME HE RECEIVES FROM THOSE ACTIVITIES DOES NOT EXCLUDE HIM FROM THE PROVISIONS OF COMMUNITY LAW RELATING TO FREEDOM OF MOVEMENT FOR WORKERS.

(sorry about the caps).

As others have pointed out the test is whether or not the work is genuine and effective which must be considered independently from any question of whether of not someone is entitled to benefits.

matthewjay - 08 March 2015 06:15 PM

I think there’s also a case, though I can’t remember it, about agency and zero hour contracts - these can also be G&E.

This is Case C-357/89 Raulin.

brilliant replies, thank you very much

Would you say it might be a good idea to write a letter to DWP to say that she should not be subject to GPoW test as she is a worker and state the regulations 85 and 85A and also the articles you mentioned?
The client is very stressed about this, she received a letter that she will have to do this test in the near future and I am just wondering what is the best way to help her.

thank you

Sue3131 - 13 March 2015 03:54 PM

brilliant replies, thank you very much

Would you say it might be a good idea to write a letter to DWP to say that she should not be subject to GPoW test as she is a worker and state the regulations 85 and 85A and also the articles you mentioned?
The client is very stressed about this, she received a letter that she will have to do this test in the near future and I am just wondering what is the best way to help her.

thank you

Edit: is there a chance they don’t know about her work? I would check otherwise there might be an overpayment. If they already know about it then I can’t see it harming but I’m not sure if it will ever reach someone who will/can actually do anything with it. You may have to wait until they terminate her JSA and ask for a man recon.

By the way, is she getting HB?

thanks everyone, not been on here for ages, so not even sure about the client, it’s my colleague’s client but I am sure she would have come and speak to me if there were any issues, so I guess all is good.
thank you