R2R - ESA claimant doesn’t have retained worker status due to 9 weeks’ sickness in 2008

I have a client who is a German citizen (originally Sudanese - got refugee status then German passport). Came to UK in 2007 with family. Worked part-time in local shops until 2013 when mother in law became ill & he coincidentally lost his job. MIL got DLA so he claimed CA for looking after her. MIL died last year & client states he is now too ill to work so has tried to claim ESA.

DWP turned him down on grounds that he had incomplete work records so (they say) does not have retained worker status, having not worked in the UK continually for 5 years.
He, however, has provided me & DWP with full records (payslips, P45s & P60s, some letters of employment but these are not complete) for every single week between October 07 to Sept 13. Fantastic record keeping on his part!

Problem is, there is a period of 9 weeks in late 08 when he was not employed. He says he had a bad back & his then employer had too many staff so had to let him go. He has a sick note covering 2 weeks but I still need to present justification to cover the other 7 weeks. DWP argue that he did not have comprehensive sickness insurance. During this period, he was using the NHS for prescriptions, seeing his GP and getting referrals, so I can’t argue he wasn’t a burden on the state. He did not claim JSA and met living expenses from his own pocket.

He got a new job within 9 weeks (so I’m thinking of going down the Genuine Prospect of Work route, even though that didn’t come into force until 2014) and continued in various corner shops until Sept 2013. How likely do you think it will be that a tribunal will decide that the delay in finding a new job was not unduly delayed? And would the use of the NHS weigh negatively on his case?
I’m hoping someone might be able to direct me to some quotable case law on this as I’ve really struggled to find it in CPAG books, on Rightsnet, talking to colleagues. We know there’s some out there but I just can’t locate the references! He was both unable to work due to ill health AND looking for work with genuine prospect of employment during the relevant period.

Son is over 18 so can’t argue continuing R2R for a dependent child in education.
Thanks in advance for your thoughts on this.

He’s German - no need (or even ability) to have registered work.

GPOW is irrelevant - apart from having been introduced later, the real issue is whether he remained in the labour market. As he actually found work within 9 weeks of the previous job ending, he very clearly did remain in the labour market - I’d argue that there’s a subtle but important difference between a gap before claiming JSA and a gap before finding actual work - i.e. a gap before claiming JSA clearly will raise some question as to whether the person was looking for employment during the gap, whereas a gap (so long as it isn’t excessive) before obtaining actual employment self-evidently means the person was doing some sort of jobseeking during that gap.

I also think the self-sufficiency route is a red-herring here, given the very brief gap we’re talking about - though were it absolutely necessary, if his past earnings were sufficient to have led to his having paid NICs during the largest part of his prior employment then there’s an argument he was ‘an insured person’ and that that is sifficent to meet the CSI requirement.

I don’t think you really need this (as 2 weeks of the 9 are covered by a Med3 - so you’re really only looking at a 7 week gap) but if you wanted to be belt and braces, is there any chance of his GP providing either a backdated Med3 or even a letter to confirm the bad back during all or some of the remaining 7 weeks? That is all that is required to show absolutely that worker status was retained during temporary incapacity for the 7 weeks - there is no requirement for a person to have claimed ESA or to actually have satisfied the WCA.

Were a tribunal to raise any serious objections about the Med3 being a backdated one (and it would be an error if it did) the answer is straightforward - as the employer let him go, he had no need of a further Med3 at the time and it’s only become relevant now. Though that same answer is equally good an explanation if you don’t try to obtain one…..

I’m sure you have considered this already, but did he have a right to reside as a family member of anyone?

You are looking at five year’s legal residence?  I think he has this.  I agree that the question about comprehensive health insurance is a total red herring - in fact, if there is evidence of any treatment (physio etc) during the 9 weeks’ period it will help his case that he involuntarily ended work.  As far as I can see the only question the Tribunal has to consider was whether his action was reasonable and whether on balance he remained within the labour market. I think its reasonable to say that he did - he has evidence of bad back for 2 weeks.  It was reasonable for him not to return to GP if he had lost his job and did not intend to claim any benefit, just get better and get a new job.  He got a job within 9 weeks, persuasive evidence that he had not removed himself from the market. There are a number of cases on gaps - I have just cut and copied from a recent submission and some of them will be more useful than others, but .see for instance SSWP v IR[2009] UKUT 11 (AAC)  which deals with a gap of 13 weeks,  SSWP v MM (IS) [2015] UKUT 128 (AAC) (5 weeks gap)  and SSWP v MK [2013] UKUT 0163 (AAC) (3 months gap).

Also, if he was claiming IS to top up his Carers Allowance, it seems to me that his IS claim would only have been allowed on the basis that he was a “qualified person” - i.e. had a right to reside as a worker, a worker who retained worker’s status, a jobseeker or something else. If so then he has achieved his five years counting from Jan 2009 to Jan 2014 anyway.

Let me know how you get on.

Ruth

Just realised you didn’t say anything about Income Support so my arguments about that probably irrelevant.  Ruth