Polish 26 year old comes to UK in February and starts work on 30 March, has a baby due mid-October. She is single, has no partner, and her parents are not here.

If she works up to 2 weeks before due date she will qualify for Maternity Allowance.

However, will this count towards the year's work for A8 nationals to enable her to claim IS when MA ends? We know recent Tax Credit rules allow for MA period to count as work so is there mileage in arguing the same applies in terms of registered work?

To comlicate matters further her contract of employment only runs to 31 December.

Hi Derek,

Sorry have only got round to having time for a look at the discussion forum. We get quite a few similar queries on our helpline (working families). I have to say that I don't know whether time on MA could count as time in registered work. I'm not sure that the WTC rules help that much as they are quite separate provisions. More relevant might be that until her contract of employment comes to an end, she is still covered by it during ordinary maternity leave (first 6 months), and therefore is still in registered work. But as her contract ends 31st Dec, I doubt it would be possible to argue she is still in registered work after that.

Even if you could argue that she had her year of registered work, I'm not sure she would get IS because she would be treated as only having a right to reside as a jobseeker, so would need to claim JSA (at least, that is my understanding of the current, very regrettable situation- others may know more).

It may not help, and I'm sure you already know, but the end of a contract of employment is still a dismissal, so in some cases it's possible to argue, if the work is still there, that it's an unfair dismissal, and if it's because of pregnancy (ie also sex discrimination) the client can claim this regardless of length of service. But I am guessing that this is not going to help as she already knows well in advance that the job is going to end.

As I understand it you are right - there is no general right for EEA nationals to reside unless they are workseekers (which means claiming JSA) or workers, and A8 nationals can't be workseekers until they have done their year.

Recently I've come across several young women with EEA nationality, ex workers or work seekers, who get pregnant and have babies and try to claim IS, often purely on the grounds of pregnancy (which of course no-one can get IS for until 6 weeks before EDC). It's a big problem area, since they then also can't get it once the baby is born either. I don't know what the answer is, or why, in many cases, they seem to choose to do it.

Hi, actually I think that (income and other conditions allowing), a pregnant woman can claim IS from 11 weeks before the expected week of childbirth. So probably that is what they have heard and so they try to claim at 29 weeks? But we are getting same problem for EEA nationals, as they are not seen as having a right to reside in this situation. I always refer them on however as there are sometimes arguments which can work.

Hi folks.

Rather than start a new thread I thought I would tag my query on to this one as it is relevant...

My client is an A8 national who is now claiming MA, but had made a claim in July 2009 for JSA.

Client was refused JSA/ HB/ C/Tax benefit as she failed to provide evidence that she had completed the WRS. Client has completed her WRS (In 2007/2008) but we have only just managed to provide this information to the relevant authorities.

The local authority have now stated that they accept that she has done the WRS, but that as she is no longer a 'Jobseeker/ Worker' she is still not eligable for HB & C/Tax.

Question is.... can we argue that the client is a former worker, who is having a 'temporary gap' ? I am aware that there is a reference to this in EC Law under the protection of rights / Residence Directive.

If anyone could throw some extra light on this then I would be grateful.

Regards Jackie

I might have imagined this but I think I read something somewhere suggesting that HB & CTB may not be social assistance. Something to do with the way it can be paid to people in full time work. It certainly seems odd that CTC is not counted as social assistance but HB is. If HB is not social assistance it could be argued that someone on MA is self sufficient with the MA being the "sufficient resources".

There is a useful online article in Welfare Rights Bulletin 209 (April 2009) called "Right to reside: the pregnant pause" by Martin Williams on the issues for pregnant EEA nationals caused by the 'right to reside' requirement. See www.cpag.org.uk/cro/wrb/wrb209/pregnant.htm

Many thanks to Robbie, and Damien for your replies.

Can I just ask you to confirm a few things (in case I'm misnterpreting things!)

If I recap it may be easier.... Client is a Polish National. She has been resident in the UK since 11th November 2004.

She completed her WRS back in 2006 (applied for cert in November 2005)

Client has worked up until March this year when she became unemployed and made a claim for JSA. This was refused (following an appeal) as DWP deemed her as living with her partner (they were sharing accommodation, but had just recently decided that the relationship was over).

Early July client was advised to make a claim for IS as a lone parent (from a suppport worker) this was refused on the grounds that she failed HRT and RTR tests.(by this stage the ex partner had moved out of the shared accommodation)

Client was then advised by same support worker to make a further claim for JSA - this was of course subsequently disallowed on the same grounds as the IS claim.

Client has since had a 2nd child and made a claim for MA in the middle of December 2009.

I have managed to prove that she did complete her WRS and provided this to Wick and the local authority. Still waiting on Wick to review their decision, but the local authority are stating that as she has not satisfied the "5 year residency rule" they are still not able to pay her HB/ C/tax. They have yet to address the backdate of said benefits, and I believe that they are still waiting on the DWP to revise their decision.

Now my question is... Are the local authority correct in their take that the client would need to have been a 'Jobseeker/Worker' for the whole of the 5 years, and that the 5 years only starts to run from the date when she has completed her WRS?? Is that what is required to gain 'Permenant Residency'? or can we argue that her 5 years should start from the date of entry in to the UK

Damien were you suggesting that the client (me) could argue that the MA, along with CB, CTC and the Child maintenaince that the ex partner provides (through CSA) proves that she would not be a burden on the Social Assistance Scheme?? This confuses me a little, as surely they will argue that by the nature of her applying for HB and C/Tax ben, then she would be a burden?

I'm on very short deadline for this, so any help/advise would mean a huge amount of help

Regards Jackie

Hi Jackie

You wrote “Client is a Polish National. She has been resident in the UK since 11th November 2004.”

In that case, CPAG is of the opinion that DWP should accept there is a permanent right of residence under domestic law for those lawfully resident for five years since 2/10/00 who have not been absent from the UK for more than 6 months, or 12 months in specified circumstances. CPAG refer to paragraph 6 Schedule 4 Immigration (EEA) Regs 2006 in their footnote on their page about Lassal case at www.cpag.org.uk/cro/test.htm#lassal

paragraph 6 Schedule 4 Immigration (EEA) Regs 2006 is at www.dwp.gov.uk/docs/a1-6209.pdf and says “Periods of residence under the 2000 Regulations -
6.—(1) Any period during which a person carried out an activity or was resident in the United Kingdom in accordance with the 2000 Regulations shall be treated as a period during which the person carried out that activity or was resident in the United Kingdom in accordance with these Regulations for the purpose of calculating periods of activity and residence under these Regulations.”

If that reg applies, it should mean IS and HB/CTB. Good luck.

Wow, that was a very quick response Robbie! Copies of the above Regs now winging their way electronically to the local authority.

A big thank you for that. I will let everyone know the outcome.

Jackie