UC refused, NINO refused, sick client

My client came from Poland in March 2021and registered fro EUSS on 30 06 21, she has worked until going sick recently, she came to the UK to live with her partner, not married no civil partnership, she is quite unwell and needs surgery for cancer. she was refused a NINO on the grounds she has not proved her right to work in the UK, I did think her application to EUSS gave her the right to work while it is being considered, any chance of challenging the UC refusal at all, nay help gratefully received

Does the partner work? or have income?

Jim

Hello Mr Jim, I think the partner works, he has been in UK for many years so should have over the 5 years full time work in UK, he may be sick at present, my instructions are a bit vague on that

if she was working, didnt she alreqady have a NINO?
If she isnt married/in a civil partnership, she wont be a family member of her partner so dont think she can piggy back their status.

She may have retained worker status if she had been working and has pre-settled status.

Jim

Prisca, she has a temp nino issued by her employer, is retained worker status possible in these circs, please advise

Diogenes- your post states that she was refused a NINO - it is not clear to me that she has made a claim for benefit which has been refused?
If so would help to know about that. If no claims yet made then should claim whatever you think she should be entitled to as soon as possible (UC etc / new style ESA / PIP etc).

I understand from your post that she does not yet have pre-settled status but rather that she applied and is waiting for a determination of that application. Is that right? If so then she should have certificate of application.

She does have a right to work if that is the case.

It may be if the DWP still refuse to issue a NINO when she applies for benefit that a public law remedy (threat of JR) is what is needed.

The issue of whether or not she has a right to reside is a separate one- it does not seem to have arisen in the mind of a benefit decision maker at present and hopefully that will all be fine.

Martin.

Hi Martin W, yes she was refused a NINO, not sure of date as it is a print off letter I have seen, HM Gov say she has been refuted a NINO as she has not shown that she has the right to work in the UK, She has claimed UC, and been refused the jobcentre referred her to me as she has been refused UC and they don’t know what to do with her, she has not claimed anything else as far as I know.
She has applied for settled status and applied oo the day of the deadline , she has been told by EUSS dept that her application is pending.
That is where we stand as of today, NO nino and NO UC and NO EUSS yet, her partner has worked din UK for over 5 years , he may or may not be sick , unsure, my client is certainly sick, her employer gave a temp nino, they employ exclusively eastern European worker sin their factory and seem pretty clued up on getting around nino rules ,
should I put in an MR for refusal of UC and on what grounds ??? UC say she is treated as a person subject to immigration control and cannot fall within the scope of the withdrawal agreement.

Many Thanks

https://www.gov.uk/guidance/new-employee-coming-to-work-from-abroad

I dont think employers can issue a NINO, temp or otherwise… Ithis seems to suggest if the employer advises they have a worker without a NINO HMRC will issue one?

What do her pay slips show?  If she arrived in March 2021 but didn’t apply straight away, then I don’t think she would have the right to work until that applicvation was made
. She doesn’t seem to have any transitional right or protections, nor is she the family member of anyone with those rights. 

Prisca, she worked for a factory that seems to employ all Polish staff, they have been paying her for months ona temp nino, not seen any payslips as she was referred by DWP to me without much information, the question is should I put in an MR for the UC refusal and if so on what grounds, she is waiting her EUSS application being processed and is currently off work sick
Many thanks

i think you need to see her payslips and provide those to UC saying she has a nino and has been working?

If she has a Certificate of Application she is allowed to work and as she is off work sick and has worked for over a year she retains her worker status therefore can claim UC (see DMG 19/21) whether or not she has a NI number. The reason I was asking if her partner works is that the DWP will take the partner’s earnings into account as they should be applying as a couple and maybe the earnings are too high.

Jim

I have used the following statement to challenge UC refusal or to copy and paste into a Journal of a new UC help to help with HRT if someone has a Certificate of Application:

“my client] does not have Settled or Pre-Settled Status. However, specific DWP guidance (ADM 19/21, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1033100/adm19-21.pdf) states that “claimants may be protected by Article 18 of the Withdrawal Agreement if they have reasonable grounds for submitting their application late. It is for the HO to determine whether the claimant has reasonable grounds for applying late, and where a claimant has received a certificate of application from the HO, DMs should accept that such a claimant has the protection of Article 18.”
The Home Office allowed [my client] to apply late and they have secured a Certificate of Application (COA), which means that they are indeed within the scope of Article 18 of the Withdrawal Agreement.
Government guidance entitled “Public Funds. Migrant access to public funds, including social housing, homelessness assistance and social care” states on page 30: “Those who submit a late application to the EUSS will also be able to access benefits and services, if they are eligible, from the point their application is validated, and identity has been verified.” The “application” refers to EUSS application and the identity is verified when COA is issued. “if they are eligible” means if they fulfil basic criteria for UC, and in case of someone who is an EEA national, this means having or retaining worker/self-employed person status.
So to conclude; even though [my client] does not yet have pre-settled status, they are protected by Art 18 of the Withdrawal Agreement by virtue of having a Certificate of Application. This in turns allows them to claim UC and be assessed for this benefit”

Now, please go easy, I am not a lawyer, just an overworked welf. This template worked on couple of occasions. But if the resident eagles would like to improve it, feedback, comment or whatever- please do :)

Thanks Jo and Jim, looks very useful, if anyone else who has contributed to this thread would like to add more please do so
regards

Martin, yes she has claimed and been refused UC, she has a certificate from EUSS , she has worked over a year in UK and is now off sick, will all this entail right to reside issues and if so can they be challenged if an averse decision is made
Many Thanks

The DWP specifically say that as the client has never been in the UK prior to oi oi 2021 she cannot cannot fall within the scope of the Withdrawal Agreement and so in not entitled to UC