Derived r2r via Teixeira, Article 12 etc.

I’d be grateful if anyone has any ideas on this one.

I have assisted a Romanian national to establish a r2r on the basis of being the primary carer of a child in education. Client has a 12 year old in secondary school and also a 4 year old who hasn’t started school. She is a lone parent so we made a claim for IS. Client has never worked despite being here for 2 years but the child’s other parent (estranged) who is also Romanian has worked throughout the relevant period.

In their decision DWP have said:

“You are a Romanian national and have provided verification that your child is in education. You have not worked since being resident in the UK but you have provided evidence that your child’s father, who is an EEA national, has worked since your child has resided here.

This regulation is, however, a final test for the right to reside in the UK for benefit purposes. This ruling can only be uses when all other avenues have been exhausted. This includes any rights that you and the children’s father may have, including claiming JSA as a jobseeker for 13 weeks. You have not exhausted your right to reside possibilities as a jobseeker for the full 13 week period. You therefore cannot, at this time, benefit from this ruling. This means that you do not have a right to reside that qualifies for a claim to Income Support under this regulation”

Does anyone know if this is correct? It’s obviously going to be difficult for the client to sustain a JSA as they have to look after the 4 year old child (hence the claim for IS).

Sounds like twaddle to me - the test they should surely be applying is whether the client has a R2R for IS - if there are no routes via Directive 2004/38 then 1612/68 should be considered.

This has come up before I’m certain of it….can anyone find the relevant thread or am I dreaming?

is this possibly the one you’re thinking of - http://www.rightsnet.org.uk/forums/viewthread/8237/

There is a paragraph on this in CPAG Migrants BOOK page 168. However isn’t it possible to claim either JSA or IS as a jobseeker around caring responsibilities?  It seems to me that if the client is looking for, say. some hours’ work when child is being minded she meets the definition of jobseeker for the purposes of the legislation.  And then when she has exhausted that right she falls back on her derivative right? 
Ruth

That’s the thread I was thinking of.

Thanks Daphne

Ruth Knox - 05 July 2016 05:22 PM

There is a paragraph on this in CPAG Migrants BOOK page 168. However isn’t it possible to claim either JSA or IS as a jobseeker around caring responsibilities?  It seems to me that if the client is looking for, say. some hours’ work when child is being minded she meets the definition of jobseeker for the purposes of the legislation.  And then when she has exhausted that right she falls back on her derivative right? 
Ruth

Jobseeker status does not satisfy the R2R requirements for IS

Yes that was my thought - she has applied for IS not JSA so the temporary r2r as an EEA jobseeker doesn’t help her. They’re basically telling her that she has to go and claim a different benefit.

Aside from that, even if she could get IS as a jobseeker this wouldn’t help as she hasn’t registered her intention to look for work so doesn’t have a r2r on that basis.

Couldn’t she just correct that tickbox on her IS claim?  Agree still leaves her with the problem of showing she is in the labour market and looking for work but maybe easier than a new claim and actual jsa agreement?  Just a thought.  Ruth

Ruth Knox - 06 July 2016 12:33 PM

Couldn’t she just correct that tickbox on her IS claim?  Agree still leaves her with the problem of showing she is in the labour market and looking for work but maybe easier than a new claim and actual jsa agreement?  Just a thought.  Ruth

No - you can get IS as a retained worker if you state in your claim that you will be looking for work (as per the decision in SSWP v Elmi)but not as a Jobseeker (or at least that’s my understanding but I’m happy to be corrected).

I recently won an ESA right to reside appeal on a Teixeira basis.  The rtr unit in Scotland used that argument in my case.  The PO told the tribunal that the rtr unit would appeal if the DWP lost.  It didn’t.  I saw the PO again recently who told me that the DWP has since conceded that its interpretation on that point was wrong and will not be using that argument again in future, similar cases.

Perhaps someone didn’t get the memo! Mine is waiting to be listed - slightly complicated by the fact that the client ticked the “I’m looking for work” box on her HRT form so a bit harder to argue no r2r as a jobseeker.

My main argument is that the appeal relates to a claim for IS so r2r as a jobseeker is irrelevant.

My secondary argument is that client had no r2r as a jobseeker because (despite what she said on her HRT form) she wasn’t actually looking for work and had no chance whatsoever of being engaged even if she was.

We’ll see what happens…

samiam - 01 September 2016 01:41 PM

Perhaps someone didn’t get the memo! Mine is waiting to be listed - slightly complicated by the fact that the client ticked the “I’m looking for work” box on her HRT form so a bit harder to argue no r2r as a jobseeker.

My main argument is that the appeal relates to a claim for IS so r2r as a jobseeker is irrelevant.

My secondary argument is that client had no r2r as a jobseeker because (despite what she said on her HRT form) she wasn’t actually looking for work and had no chance whatsoever of being engaged even if she was.

We’ll see what happens…

Bump!

How did you get on? I’ve got one of these that’s staring at the UT already; yes it’s rather late but there are good reasons for lateness.

Hi Dan, Sam has left our service and I have taken this case over.

We had initial hearing adjourned where interpreter didn’t arrive.

2nd hearing, interpreter did not turn up again but this time around Judge agreed with our submission noting the reason as:

“The tribunal did not consider that the appellant was an exempt person because she might have been able to claim benefit as a jobseeker. A person is an exempt person if he has a right to reside other than a derivative right, not if he might have such a right to reside’.

Decision not yet enacted by DWP though.

Regarding DWP’s possible concession on this point ... are they conceding only the narrow point that a person who is not currently exercising a right to reside as a jobseeker can fall back on derivative rights ... it is unnecessary for the claimant to show that they could not acquire a right to reside as a jobseeker?  Or are they making the further concession that even if a parent who is an EEA national happens to seek work and thus has a personal right to reside as a jobseeker for a few weeks this does not extinguish their underlying derivative right to reside?  If they have made the more generous concession that would suggest they accept that the “exempt person” stuff in Reg 15A is superfluous and prevents the child from being educated on an equal basis alongside children of host state nationals because those children’s parents are not prevented from claiming HB when they seek work.  It seems to me that not being able to claim HB presents a clear threat to the child being educated under the “best possible conditions” as Article 10 requires.

So there are two issues here: potential jobseekers who are not actual jobseekers - clear concession, this is wrong; and actual jobseekers whose entitlement to HB is suppressed for 91 days while they are an “exempt person” and perversely worse off than when they were not exempt - concession here too or not?

edit; I was being too flippant

my original point stands though; isn’t taking a more restrictive line than CJEU unlawful; thus isn’t the inclusion of “exempt person” questionable?