Hi all, need some help on right to reside, everyone's favourite topic I know!

my client is a Portuguese national who worked in the UK from February 2006 - February 2009, then he claimed JSA for about a month and then worked again until having a car accident in September 09. He hoped to get back to work quickly after his accident and initially lived off some savings, but when his problems (whiplash) took longer to get better he claimed ESA in January 2010, still waiting for a decision as it has gone to Wick re the right to reside issue.

It is not very clear if he has been assessed for contribution based ESA or not. There is a complication in that the local benefit processing centre seem to think he was claiming CB and then IB JSA up to November 2009 which he denies so I have got to try to get to the bottom of this.

Anyway assuming it is going to be IB ESA will he be able to retain a right to reside as a temporarily incapable worker or will the gap between working and claiming scupper this?

I dont see any problem with this - your client clearly achieved worker status from 06 - 09, retained it by registering as a jobseeker, then worked again - provided the last work was genuine and effective he would not have lost his worker status at all under Reg 6(2) EEA (Immigration)Regs 2006.

Hi there,

CIS/4304/2007 says the test of incapacity to be employed as a 'worker no longer working' who is now sick, is whether or not the person is capable of the work they were doing, or the work they sought, and is NOT the test that is used to decide Incapacity Benefit (and therefore presumably Employment and Support Allowance). This confirms that the gap between going sick and claiming ESA is not important, as long as it would be possible to satisfy the requirements of CIS/4304/2007.

Just in case it helps, the test of temporary sickness for the purposes of Reg 6(2)(a) is I think in CIS/3890/2007 (decided 25.5.2006), says that ‘temporary incapacity’ means a condition ‘which had a certainty of recovery’.

Steve

hi steve

sorry but i think that you might mean CIS/3890/2005 where the commissioner overturned the decision of the tribunal who said that incapacity had to have a certainty of recovery.

instead the commissioner held that -

'It seems to me that the tribunal erred in assuming that because the claimant may have had a permanent disability, she was necessarily permanently incapable of work or, alternatively, in failing to consider whether she was a workseeker if she was not incapable of work.' para 5.


cheers ros

Thanks all, I will have a look at that decision.