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Benefits for claimants in full service area but not entitled to UC?

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chacha
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I must say, the description of facts in the opening post suggests this EEA can’t make a claim for anything but then I have seen cases, in particular Potters Bar and Harlow full service post code areas, where claimant moving from one LA post code area into another (Which should trigger a claim for UC as they had housing cost) did not migrate to UC but they were directed to the relevant LA to make a claim for HB).

It most cases they were people on ESA and in SG but there were also some I/S and PFA cases. I am not 100% sure if LAs decided, and if that’s the case seems with good reason, that Reg 4, of the trans regs, “Secretary of State discretion to determine that claims for universal credit may not be made” applied and seems none of the exclusions for claims in reg 6 applied.

I know they paid HB though.

The one thing they all had in common was the award letter (For those that were issued new letters of entitlement due to the change of address across LAs) it actually stated they should approach their LA for housing and council tax costs. Don’t know if this will assist you or not.

MKM35
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chacha - 22 May 2018 04:39 PM

I must say, the description of facts in the opening post suggests this EEA can’t make a claim for anything

That’s my primary concern. It seems very unfair that he cannot claim anything.

chacha - 22 May 2018 04:39 PM


The one thing they all had in common was the award letter (For those that were issued new letters of entitlement due to the change of address across LAs) it actually stated they should approach their LA for housing and council tax costs.

He has never claimed benefits until now so possibly no award letter.

chacha - 22 May 2018 04:39 PM


Don’t know if this will assist you or not.

Any advice is helpful, so thank you. I will look into the regulations you’ve mentioned - perhaps we might find something! Thanks again

Martin Williams
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On the facts you state the chap appears to be:

1. Providing services (missionary work),
2. In return for remuneration (rebated rent),
3. Under the direction of another (presumably the head of the mission etc).

As such potentially he can argue he is entitled to UC as he has a right to reside as a worker. The Steymann case which is reasonably on point has been referred to earlier.

Seems to me your main hurdle then is simply whether the work is genuine and effective and of some economic value to the employer- that last bit might be problematic.

However, given all the rest is going to come to nothing (save perhaps cJSA), I can’t see any reason not for pushing the right to reside argument via a UC MR request and subsequent appeal.

Advise him to get a job as well just in case.

Martin

MKM35
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Hello,

Thought I should update everyone regarding this case.

We have been successful in getting the above client (and 3 others so far) 91 days of JSA!
The claimants have to make a clerical application and appointments have been arranged for at the JCPs.

I can post details if you think it may help other advisers.

Thank you everyone :)

[ Edited: 14 Jun 2018 at 11:14 am by MKM35 ]
chacha
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MKM35 - 14 June 2018 11:10 AM

I can post details if you think it may help other advisers.

I think that will be helpful?

Was it new or legacy JSA? How/why did the DWP change the decision?

MKM35
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chacha - 14 June 2018 11:20 AM

Was it new or legacy JSA? How/why did the DWP change the decision?

Legacy.
Not sure it counts as changed decision as their original decision only stated client not entitled to UC because full service (it did not actually say anything about JSA entitlement). EU job seekers advised to make JSA claims were informed over the phone that they cannot claim JSA but never received a decision letter. Perhaps their claims were closed without actually going to a decision maker?

We spoke to the DWP Partnership Manager and the JCP team leader who looked at all 4 cases individually and wrote back confirming their entitlement to JSA. They stated it would be a clerical application (not online, possibly because the online system does not allow for this particular situation?). And that was that!

Quite the anti climactic process, but couldn’t have asked for a better outcome!

 

BC Welfare Rights
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So… Can anyone explain what is going on here then?

Jon (CANY)
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Billy Durrant - 14 June 2018 05:45 PM

So… Can anyone explain what is going on here then?

Umm… has JCP somehow equated “qualifying as a jobseeker under the immigration regs” with “qualifies for JSA, regardless of the other basic conditions for that benefit”?

I thought the accepted wisdom is as Elliot explains here, for example:
https://www.rightsnet.org.uk/forums/viewreply/58188/

MKM35
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For what it’s worth…

The senior benefits adviser was confident that ibJSA was the right benefit for these specific clients and the gov.uk website stated: If you’re not eligible to claim Universal Credit in your area, then you won’t be able to claim new style JSA. You may be able to claim contribution-based or income-based Jobseeker’s Allowance instead.

Nowhere did it specify live or full service.

Elliot’s reply

Elliot Kent - 22 May 2018 03:31 PM

There simply isn’t a legal mechanism to enable payment to be made in these circumstances.

made me wonder if the issue wasn’t the legal mechanism but the code (ex-programmer roots here, very new to the benefits system). I conjectured that the code hadn’t been written to process such claimants and automatically (and incorrectly) excluded EU Jobseekers from claiming ibJSA online.

So we contacted the DWP (via Partnership Manager and by submitting a general complaint) for clarity. Specifically, in the complaint we informed them that the decision letters sent to the Applicants in response to their Universal Credit claims are misleading as they imply that they are not entitled to any benefits at the present time.  They do not state that they may try to claim JSA. Also, when our clients do try to claim JSA (further to our advice) they are being misled by DWP staff in that told they are told that their claims will not be successful, even before they make the claim, or they are told that they cannot claim. We informed the Partnership Manager that we suspect this may be an issue with the underlying code.

We received an email from the UC Team Leader informing these 4 clients are entitled to 91 days of ibJSA. 4 appointments were booked for the 4 clients to fill out a clerical application at the JCP. And now we wait for a decision on their claims… 

If the issue is the underlying code, as suspected, then the clients should receive their entitlement and the code can be corrected accordingly. If the issue is that the law no longer allows EU jobseekers to claim any benefits in full service area, then, well, then we’ll know for sure.

I hope this helps. 

Jon (CANY)
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If benefit has not actually been awarded yet, I would be very cautious about the prospects I’m afraid.

It should be perfectly correct that EEA jobseekers can apply for JSA and receive NI credits for their jobseeking, for 91 days at least. Whether they will receive an award of benefit to go along with it is another matter.

(Please do update us though!)

MKM35
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Jon (CHDCA) - 15 June 2018 10:47 AM

If benefit has not actually been awarded yet, I would be very cautious about the prospects I’m afraid.

Yes, that’s a concern - and the underlying code being the issue is a long shot, but so far, the DWP have been wonderful in their responses, agreeing that the letters are incorrect, arranging for appointments…

Jon (CHDCA) - 15 June 2018 10:47 AM

(Please do update us though!)

Will do! At worst, I’ve wasted some time, simply delayed accepting the inevitable and we’re back to square one.

SamW
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My reading of it…

Under the legacy system EEA jobseekers with no other right to reside were able to claim IBJSA for up to 91 days and longer if they can show a GPOW. Their right to do this was initially under EU law and is one that cannot be derogated from (that was my understanding at least).

So the benefits system has to continue to provide for them. I guess that the DWP had three options:
- amend the UC legislation to provide for entitlement to the standard allowance of UC only for EEA jobseekers (i.e. no entitlement to any of the extra elements). I imagine that this may have been fiddly to legislate, to program into the IT system and to administer.
- deal with EEA jobseekers under ‘new style JSA’. I imagine that this would be a problem as the ‘new-style’ systems have been designed to only deal with Conts Based claims and so aren’t set up to do means-testing (or indeed GPOW tests)
- continue with clerical ‘old-style’ JSA claims for EEA jobseekers.

The simplest option seems to be the latter and it appears to be the course of action the DWP are taking.

The problem is that this appears to have all taken place behind the scenes without any changes to (for example) the website or the training that is given to the staff .

Whether they are able to do this under legislation as it stands is a mystery to me. I just had a look at the commencement order that the CPAG handbook refers to in relation to the abolition of IBJSA etc. and it is utterly impenetrable to be honest :(

MKM35
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SamW - 15 June 2018 11:02 AM

My reading of it… Under the legacy system EEA jobseekers with no other right to reside were able to claim IBJSA for up to 91 days and longer if they can show a GPOW. Their right to do this was initially under EU law and is one that cannot be derogated from (that was my understanding at least).

Exactly what the senior adviser said!

SamW - 15 June 2018 11:02 AM

The problem is that this appears to have all taken place behind the scenes without any changes to (for example) the website or the training that is given to the staff .

I’m too small a cog in the system to even start that change, but I hope that if the claims of these 4 clients comes through (or even 1 of the 4), then perhaps the powers that may be will

SamW - 15 June 2018 11:02 AM

amend the UC legislation to provide for entitlement to the standard allowance of UC only for EEA jobseekers (i.e. no entitlement to any of the extra elements).

MKM35
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Updates time!

So, if the four EEA jobseekers who were originally referred, 2 found a job, 1 has had 2 JSAs in the past and failed GPoW and… (drumroll) one receives JSA on 12 July 2018!

Wooot! 

WillH
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This is really interesting. My understanding was that it was perfectly lawful for the government to exclude EEA nationals who only have a right to reside as a jobseeker from UC because it is ‘social assistance’. This is from directive 2004/38

’ However, it should be left to the host Member State to decide whether it will grant social
assistance during the first three months of residence, or for a longer period in the case of
job-seekers, to Union citizens other than those who are workers or self-employed persons or
who retain that status or their family members, or maintenance assistance for studies,
including vocational training, prior to acquisition of the right of permanent residence, to these
same persons’

I’m also baffled by how someone who is making a new claim in a full service area & doesn’t have more than 2 children has been able to get irJSA…..

This affects a large number of clients so I’d love it to be ok but can’t see how it works. I thought the exclusion of EU jobseekers from UC was both intentional and lawful…..