ESA and EU nationals

I have been referred a client who is a German national, who came to the UK in 2008. I do not have precise details of his employment history, but he had an accident at work last year. He had an operation on his knee, is receiving physiotherapy and will need a further operation in the future. He initially received SSP for 28 weeks and then applied for ESA, which was turned down on the grounds he does not have sufficient NI contributions for CB ESA and he has he failed the habitual residence test. His employer says he stopped working on 12/04/2011. He has been advised to appeal the ESA decision.
I’ve not met him yet, but I do not think he has a right to reside unless we can prove that he is temporarily out of work because of an accident. He appears to have put in a claim for Industrial Injuries Benefit and is waiting for a medical. If this is the case do you think he should continue with his ESA claim or claim JSA instead?

Thank you! Your comments have enabled me to focus much better. I’ll discuss the options when I see him and get details of his employment history.

When you say his employer says he stopped working does that mean as a result of the accident or that he ceased to be their employee?  While he might not be getting any sick pay he might still be an employee on sick leave in which case he would still have worker status (provided it is effective and genuine activity, etc.) and so a right to reside.  Otherwise, it comes down to the retained status or permanent right to reside as described above - maybe point the DM in the direction of Chp 7 part 3 of the DMG?  If he did loose his job due to his injury then may be worth having a word with an employment law expert in case it wasn’t done right?

I haven’t met the chap yet, but from the notes that I have been given, he was injured at work and received the correct SSP entitlement, which stopped, 28/10/2011. I understand that he is not fit to return to that job, but is still registered as an employee by the company - I have no proof of this. I’m not sure if there is an employment issue until I meet him. We don’t have an employment specialist at the bureau, but if there are merits I can refer him to the Law Centre, who have an employment specialist. Its certainly another avenue to explore!

Well that definitely sounds like he’s still an employee and therefore still has worker status and therefore a right to reside!  Obviously you’ll need to check all that but this UT case might come in handy:

http://www.administrativeappeals.tribunals.gov.uk/judgmentfiles/j2621/CJSA 1439 2008-00.doc

It concerns an A2 national but the same principles apply in terms of when someone is still a worker even when they are not actually working for EU law purposes.

Thank you again for your help. Unfortunately, I’ve tried to access the UT decision, but the page cannot be found. I’ll keep trying!

here’s another link to CJSA/1439/2008 -

http://www.osscsc.gov.uk/Aspx/view.aspx?id=2621

Thank you for your help Ros. I have found the decision very helpful in defining worker status and I will use it if my client has evidence that he is still an employee and on his emplyers register. However, although I can see this would aid an JSA appeal do you think my client should still contiue his claim/appeal regarding the ESA decision or make aclaim for JSA instead?

My client has now supplied all of the relevant information about his employment history to the DWP. He now satisies the habitual residence and has the right to reside. He has been awarded ESA, which has been backdated to Aprillast year.
Thank you everybody for keeping me on the right track!