EEA national making new JSA claim. Previous claim under appeal.

Has anyone had anything similar to this please? Polish national is appealling JSA habitual residence decision. In light of the change in the regs in May re workers registration, pending her appeal client has made a new JSA claim. Because there has been no break in her “signing on” they are refusing to accept this as a new claim and it is not being processed. I cannot find regs which clarify if they can do this.Should client cancel previous claim, which is still under appeal and then reclaim JSA? If she does this can she request backdating to the date of her second claim?
Any help will be welcome.

Having worried about this all night, I wonder if because the JSA decision under appeal is still a current claim as she is “signing on” could we say that there has been a relevant change of circumstances - ie change in legislation01/05/2011, so current claim is now payable?

I can’t see how they can refuse to accept a new claim from her. She received a negative RTR decision therefore her applicable amount for JSA is nil and by cororolly she is not entitled to JSA (or to NI conts). The fact that she has continued to sign is neither here nor there. Can you get hold of a clerical JSA claim form? If so, get client to complete it and send it off with a complaint & backdate request.

...Actually, she’s made a new claim hasn’t she? (rather than the contact centre refusing to allow her to make one). Sorry- didn’t read your post properly. In that case, lodge a complaint. She has no current JSA claim and they must make a decision on her new claim.

The SSWP is under a duty to give a decision under section 8 Social Security Act 1998, on a claim for benefit. Although that legislation does not specify how quickly such a decision should be given it is very arguable that the duty is to give a decision within a reasonable time- Para 51 Home Secretary v S [2007] EWCA Civ 546.

If the DWP staff have expressly stated that the claim cannot be determined then that is unlawful. If you can draft a letter before claim for judicial review and send it to the DWP solicitors I would imagine you would get a decision on new claim within 14 days.

Note as well that the structure of the legislation on decision making is now designed to require a new claim in such a situation:

1. The change in law (eg ending of A8 restrictions) since the refusal of the first claim is a change of circumstances.

2. sec 8(2)  Social Security Act 1998 says clearly:

(2)Where at any time a claim for a relevant benefit is decided by the Secretary of State—

(a)the claim shall not be regarded as subsisting after that time; and

(b)accordingly, the claimant shall not (without making a further claim) be entitled to the benefit on the basis of circumstances not obtaining at that time.

3. What that means is the claimant simply cannot benefit from the change in law which occurred after the refusal of his original claim unless he makes a new claim and has that decided.

4. So the DWP refusing to determine the new claim is preventing him from doing what the legislation effectively says he must do in order to get his benefit…

Thank you both for your replies.
I haven’t actually interviewed the client yet. She saw a general adviser yesterday and was due to come back today at 10.30. Unfortunately, she did not turn up, despite all the pondering we have done. She has an appointment with me (LSC benefits adviser) next Tuesday. If she does turn up I will write to DWP re her recent claim quoting the relevant legislation and then Judicial Review if necessary. She was also advised to reclaim HB/CTB and I don’t know the result of that claim, which is particularly important as possession proceedings may have started.

Although, I have not yet seen the original Polish National client, as she is still on holiday I saw a different client today in similar circumstances. She is a Polish national, who claimed JSA in March this year and was refused. She has appealled this decision and in June this year made a new JSA claim. She has been told verbally that she is not entitled to make a new claim because she has appealled the previous decision. The client has not recived a writted decision regarding her new claim, so I am not sure if it was actually processed. I phoned JSA today and was given the same information as the information given to the client. I have requested a “call back”, but do not think the person who calls me (if I do receive a call back) will give any further information. I managed to get JSA supervier phone number, but he appears to be taking industrial action today, so I’m back to square one. Has anyone else had this problem yet?

I think, as Martin Williams said above, my starting point would be the change in law regarding accession states and sec 8(2)  Social Security Act 1998 and then see what the JC+ response is.

I was unable to speak to JSA supervisor, who is on leave. The person I spoke to said she thinks client has a current live claim, because she is receiving NI credits. I do not know if she is receiving NI credits. This is why she has been refused a new claim.  She also said client should complete JSA 3, which I think is a change of circumstances form, but as the change of circumstances occured were legislative and occurred after client made her original claim I’m not sure this is correct and someone who has more expertise in JSA claims is supposed to be ringing me back . It is difficult to instigate a judicial review. I do not have a written decision. Also I would have difficulty accessing a WB solicitor, local Law Centre or legal advice centre.

I’ve just encountered the same problem. The client has rung the contact centre to try to initiate a new claim twice now and has been verbally told he can’t whilst his (pre May) appeal is ongoing because he is ‘still signing on’. I have advised him to insist on his right to claim and have prepared stroppy letter for him to send back with his completed statement.

I don’t get it, is this some kind of new thing that only JCP staff know about?

You could have a go at getting hold of a JSA3 form from the Benefit Delivery Centre and sending that in rather than trying to claim through the contact centre. If you just ask them to send one out they generally do. They will talk about it as if it is not a new claim form but in practice this is what is is used as.