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Employed for less than a year; retained worker status and GPOW

Law Centre NI
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I have an appeal where UC forgot to carry out a GPOW after 6 months for someone who had retained worker status as a result of less than one year of employment. They carried out a supersession 1.5 years late but with effect from the end of the initial 6 months. I am looking at arguing the necessary determination of GPOW failure after 1.5 years is the change of circs and can only take effect then; but they are claiming that the end of the 6 month period is automatically a change of circs in the absence of a successful GPOW.
(In essence they retain worker status until a failed GPOW is conducted vs they automatically lose retained worker status unless they pass GPOW)

I am having some difficulty reconciling some of the legislation and would welcome views. Reg 6 “Qualified person” under the EEA Regs 2016 outlines at 6(2):

(2) A person who is no longer working must continue to be treated as a worker provided that the person—

(c)is in duly recorded involuntary unemployment after having been employed in the United Kingdom for less than one year, provided the person—
(i)has registered as a jobseeker with the relevant employment office; and
(ii)satisfies conditions A and B;

Condition A and B are found at paras 5 & 6:

(5) Condition A is that the person—

(b)is present in the United Kingdom seeking employment, immediately after enjoying a right to reside under [sub-paragraphs (b), (d) or (e)] of the definition of qualified person in paragraph (1) (disregarding any period during which worker status was retained pursuant to paragraph (2)(b) or (c)).

(6) Condition B is that the person provides evidence of seeking employment and having a genuine chance of being engaged.

This seems to be a bit circular, but I assume its saying that if the person was here as a worker under 2(c) then you disregard the first 6 months as the period to which 2(c) applied as a retained worker before you apply Condition B (GPOW). But how does this sit with Reg 6(3)?

(3) A person to whom paragraph (2)(c) applies may only retain worker status for a maximum of six months.

I am a bit worried that it could be argued that someone with employment less than one year should never retain their worker status beyond 6 months, therefore the GPOW test is irrelevant in these circumstances and the DWP guidance is incorrect.

Elliot Kent
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I am guessing that you are dealing with someone who didn’t read DMG Memo 2/83?

11. What this means in practice is that decision makers should no longer carry out genuine prospect of work tests on claimants retaining their status as a worker (or self-employed) due to involuntary unemployment.  Genuine prospect of work tests should only be carried out for those European Union national claimants who are jobseekers under Regulation 6(1)(a) of the Immigration (European Economic Area) Regulations 2006 (Regulation 6(1)(a) of the Immigration (European Economic Area) Regulations 2016) as per paragraphs 38 and 39 of the decision.  In reality this will only apply to claimants in receipt of Jobseeker’s Allowance.

Law Centre NI
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Thank you for your reply and also the reference to the Northern Ireland version of the DMG!

I think that guidance Memo mainly relates to KH v Bury MBC and SSWP [2020] UKUT 50 (AAC) and the removal of the GPOW for those employed more than 1 year and therefore retaining their worker status indefinitely - Reg 6(2)(b).

I am concerned with those that work less than 1 year and retain their worker status for 6 months - Regs 6(2)(c) and 6(3).

Can a person in these circumstance retain their worker status or be treated as retraining their worker status after 6 months either:

a) until it is determined that they do not have a genuine chance of being engaged; or
b) only after it has been determined that they have a genuine chance of being engaged.

I am worried that the alternative is that the current approach is incorrect and, because of Reg 6(3), they can never be treated as a worker after 6 months even if they were to satisfy the GPOW.

Elliot Kent
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Yes, I have missed the point of your post (mainly in my surprise that the GPOW is still being applied at all). I should remember to read things properly before responding to them.

As you say, the position under the regs is that you cannot retain status for more than six months if your employment is under a year. The regs in this respect are based off art 7(3)(c) which provides for retention of ‘no less than’ six months. Whether that is significant I don’t think has been conclusively addressed. But yes it would appear that your client has been the beneficiary of an error unless he can demonstrate some other status to take him past the 6 month point. See ADM C1304 (I think in either version…)