Delay in job ending and claming UC - EEA National

I have successfully managed to get retained worker status in the past where there has been a gap between work ending and making a claim for benefit. The gap was ‘plugged’ by GP fit notes.

Currently I have an EEA National (been here just over 3 years) Stopped work on 26/02/2018 and never made a claim for UC until 01/06/2018. They have said…  AND YOU CANNOT RETAIN YOUR WORKER STATUS DUE TO THE DELAY IN MAKING A CLAIM TO UC FOLLOWING YOUR EMPLOYMENT ENDING (and then they state the dates above)

We are pretty certain that she has satisfied the NI contributions to claim ESA new style so I can take care of her living costs. To obtain help with her housing costs through UC I am wondering if I can get her to obtain backdated fit notes will this be suffice to give her retained worker status because of temporary illness??

I wouldn’t bother listening to anything UC put in EEA RTR decision notices.

Worker status can be retained on the end of employment in two relevant scenarios.

The first is if your work ends and you are “temporarily incapable of work as a result of illness or accident”. There is no need to make any benefit claim to demonstrate your incapacity - sick notes should do fine. Delay in claiming is irrelevant and it is irrelevant whether your client would pass WCA style testing - see CIS/4304/2007.

The second is if you are in “duly registered involuntary unemployment” and have “registered as a job-seeker with the relevant employment office”. Delay is relevant if you are relying on this head because of the requirement that the unemployment and your efforts in jobseeking are “registered” with the state. Undue delay in registration can mean that the status is lost - but it will depend on the facts of the case. See SSWP v MK (ESA) [2013] UKUT 163 (AAC) and FT v LB Islington (HB) & SSWP (JSA) [2015] UKUT 121 (AAC)

CIS/4304/2007 is also authority that you can hop between these heads without issue.

So yeah, it sounds likely that your client is still retaining on the grounds of incapacity.

Yes, I have learned this! I went to visit our service centre in Bristol a few months ago and asked about HRT D Makers….thought there was a specialist team given the rules are so complicated…..no, all the DM just take it in turn!!!

What you have put is as I understand it, thanks :-)

It’s worrying that UC decision makers are so unaware of the legislation.  The legislation and case law Elliot cites is very well established yet it seems to be ignored.