Hope someone can give me some input on this:

I have a client who entered the UK as an EEA National, so was able to apply for JSA, but was subject to the Habitual Residence Test. She claimed JSA, but it took the jobcentre 6 weeks to make the decision that she was not entitled as she did not satisfy the HRT. She appealed against the decision and made a new claim for JSA a couple of weeks later. The new claim was accepted.

Regarding the appeal, as I understand it, as she has not been in the UK before, then under the House of Lords decision in Nessa, she must have resided here for an appreciable period of time before she can satisfy the HRT. I think this is generally accepted as being around one month, depending on the facts of the case. Tribunals are only allowed to consider whether a decision was correct on the date it was made (the decision under appeal was made 6 weeks after the date of claim).

As the client is very unlikely to be acepted as satisfying the HRT on the date of claim, can the tribunal award JSA from a date after the date of the claim but before the date of the decision (i.e. from some time during that six week period)?

If not, can we apply for some sort of ex-gratia payment from the jobcentre for taking so long to decide the claim and preventing the client from getting her appeal in earlier?

I think you do actually answer your own question.

As you say, the Tribunal's jurisdiction is to consider up to the date of the decision, which is 6 weeks after the date of claim. So they can decide the client is HR from potentially any date from date of claim up to the date of this decision, 6 weeks later.

If they are minded to find that HRT is not satisfied until after the date of decision then all they can do is refuse the appeal and you are reliant on the new claim.

Thanks for that, Andy.

I have another question now: -

The decision maker made their decision, but did not notify the claimant until four weeks later. The date put on the appeal form as being the date of the decision was, of course, the date of the letter notifying her of the decision. Which date can the tribunal consider up to - the date the decision was made, or the date of the decision letter sent to the client?

Lisa

I believe that the relevant date is the date that the decision is notified to the claimant.

See the thread on 'dates of tribunals jurisdiction' on the decisions and appeals forum.

Paul

Thank you, that's exactly what I needed.