EEA incorrectly adviced to claim Income Support?

Claimant, Lithuanian, and single parent (child is 2) arrived from outside the LA fleeing domestic violence and claims HB.

This was paid from November 2012, albeit after a lot of toing and froing by the DWP, based on JSA(IB).

She had arrived to the UK in April 2012. As she was on JSA (IB) no further questions asked about R2R and obviously nothing requested about the [ex] partner.

She claimed I/S, which was obviously refused as she failed R2R, subsequently, JSA was awarded again from July.

She can’t have retained “worker” status(Due to the timeline) and she will only have R2R as a “work seeker” if she is entitled to JSA(IB).

Can’t see the, “showing evidence that they are seeking employment and have a genuine chance of being engaged” route, is of any use even though the DWP confirm R2R for the relevant periods between the actual awards (They have refused to backdate JSA(IB). I suppose the Jesse Saint Prix v SoS for W&P is of no help.

The question is, how can this claimant be treated as having R2R from March till July? Any ideas please? I’m stuck I think!

Any thoughts much appreciated, thanks.

Hi chacha.  Long time no discuss.  This is where I live now.

As you say, the time line suggests she has never actually been a worker and has at all material times been seeking work for the first time.  In that case the Regs seem pretty clear: a work seeker is excluded from HB by para (3A) of Reg 10 unless one of the overriding exemptions in para (3B) applies.  Work seekers normally achieve that through JSA(ib), but if there is a gap in her JSA(ib) history she doesn’t fall within Reg 10(3B).

The line of cases that began with the rather suspect CH/3314/2005 and continued through Sec of State v Elmi is normally only helpful to former workers claiming to retain their status in the context of an IS claim.  I have often thought that some of the reasoning would apply equally to a work seeker: it is possible to have a right of residence as a person seeking effective and genuine work while not quite satisfying the JSA labour market conditions.  But I think the problem for work seekers who have never worked is that they do not enjoy equal entitlement to the full range of social advantages, only those specifically targeted at work seeking (the Collins case).  It is correct I think for the UK to say “yes we acknowledge you have a right to reside while seeking effective and genuine work but still failing the JSA labour market test; however we are still allowed to exclude you from Income Support”.

And in any case, all of that is of no immediate relevance in the HB claim because unless she actually gets IS she is excluded from HB by Reg 10(3A).

So that leaves the tricky option of her possibly still deriving a right of residence through her husband, if that’s what he is.  If they are married and if he himself has a right to reside here as a worker or whatever, then so does she.  This is one of those situations where decision makers need to be flexible about proof.  It is up to her to help you out as best she can by giving you his last known adress, maybe a NINO, maybe even a place of work - you would expect her to know something about him.  But you can then take those scraps of info and seek back-up evidence from sources that are easier for you to access than they are for her.

Hi hbanorak, it has been a while, initially thought you were too busy (What with all the welfare reform upheaval) but then realised you live here now…...

Anyway, enough reminiscing, your thoughts are exactly what my analysis was. I just thought maybe I might have missed something, hence the post.

It did occur to me that she may have R2R through the [ex] partner but, due to the nature of her current circumstances it’s difficult to gather more information, seems he is also a “job seeker” as opposed to a “worker” that has retained the status and there is no confirmation of his current circumstances.

Guess I will have to see or see if the overpayment, for the period there is no R2R, is unrecoverable.

Thanks again.