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Forum Home  →  Discussion  →  Other benefit issues  →  Thread

EU citizen losing status as “worker retaining worker’s status”

Ruth Knox
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Vauxhall Law Centre

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Joined: 27 January 2014

We have a client who worked for over a year, and then claimed JSA.  She was wrongly classified as a “work-seeker” rather than a “worker who has retained worker’s status” but we hope to be able to correct it.  As she has a young baby and is responsible for a child in school it seems to me that she would be entitled to IS either as a “primary carer” or as worker who has retained worker’s rights and is responsible for a child under 5.  However, it also seems to me that the minute she actually claims these benefits then, although she still has her right to reside, she loses her right to continue to be treated as a worker, because she is no longer looking for jobs.  Is this a correct interpretation of the regulations or am I misreading them?  Ruth

nevip
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Welfare rights adviser - Sefton Council, Liverpool

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Not necessarily, if she is in involuntary unemployment and claims IS she should tick yes on the HRT part of the form to the question “are you looking for work” (presuming she wants a job) and then she can rely on the Directive also following the court of appeal’s decision in Elmi.  Obviously, if she’s in receipt of JSA now, she might not want to rock any boats.

Ruth Knox
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Vauxhall Law Centre

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Thanks, I think I remember that now.  If she was on IS would she still have to establish “reasonable chance of finding work” and carry out job searches etc to continue to prove that she is still looking for work? It seems a bit of anomaly if she can retain her status with less conditions than someone claiming JSA.  Ruth

EmmLC
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Training Team, Homeless Action Scotland, Edinburgh

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My understanding is that ticking said box in RtR form complies with the “registering as a jobseeker” part of retaining worker status (that’s the result of the Elmi case) - whilst on IS she would not have to “sign on” per se and provide constant evidence but I do believe she would be subject to the GPOW test after 6 months - which can be challenged (see CPAG).

I don’t know how many people have been successful in challenging the GPOW test though.

“It seems a bit of anomaly if she can retain her status with less conditions than someone claiming JSA”

well she is a lone parent (as well as a retained worker), so that’s why she has to fulfill less conditions really, otherwise she wouldn’t get IS at all, she’d have to claim JSA indeed.

Cordelia
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Welfare rights officer - Wrexham Council Welfare Rights Team

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A right to reside as a primary carer is a very useful right, as it sidesteps the GPOW test and enables her to claim HB.

What it doesn’t do is count towards the magic five year mark where she would gain permanent residence. 

But if she retains her worker status using Elmi, does the five year clock continue ticking?  If so she would get the best of both worlds…..

I feel that there must be a catch, but hopefully someone more expert than me will come along and comment…