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R2R as jobseeker v R2R as Primary Carer

WR Adviser
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We have a Polish client who has been in the UK since Oct 2013, her 5 year old child started school in January 2014. She worked FT from Oct 2013 until June 2016 (when she had a second child) after which time claimed and was paid IS and CTC (as a primary carer of a child in education presumably but no docs to confirm this).  For some unaccountable reason, the client claimed UC on 4/12/2018.  UC have refused.  Their decision says that when she claimed UC, she claimed as a Jobseeker and so until she has exhausted the 91 days of jobseeker status she retains that status thus no entitlement to UC.  MR was put in arguing she is a primary carer of a child in education but UC have upheld the decision saying her Jobseeker status takes precedent so until the 91 days have passed, she has no entitlement to UC. 

Has anyone got any thoughts on this?

Simon
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Charlotte Keel Welfare Rights, Bristol CAB

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Unfortunately this seems to be a continuation of DWP misinterpreting both the Regs and their own guidance. See discussion here including a useful extract from a submission: https://www.rightsnet.org.uk/forums/viewthread/12729/#62259 and an older thread here: https://www.rightsnet.org.uk/forums/viewthread/8157/#36215

Certainly worth challenging the decision; has anyone had experience of taking these cases to FTT?

Tom B (WRAMAS)
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Not UC but another relevant thread here

https://www.rightsnet.org.uk/forums/viewthread/9958

Elliot Kent
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They’ve been running this one for a few years now.

The genesis of the argument is this:
*Reg 16(1) of the Immigration (European Economic Area) Regulations 2016 provides that a person has a derivative right to reside if he meets the relevant criteria and is not also an “exempt person”.
*Reg 16(7) defines an “exempt person” as inclusive of any “qualified person” which includes a jobseeker.
*As a “jobseeker” is therefore an “exempt person”, he is excluded from reliance on a derivative right. His only right to reside is then as a jobseeker.
*Someone whose only right to reside is as a jobseeker is then excluded from UC entitlement under reg 9(3)(aa) UC Regs 2013.

It’s a pretty naff argument for a number of reasons but it is often best tackled on its own terms. The definition of “jobseeker” is extremely restrictive (by design) - it is not open to the DWP just to decide that someone is a jobseeker (or more egregiously, could be a jobseeker) - they need to show that the claimant meets the specific requirements under the EEA Regulations.

If your client has claimed JSA for at least 91 days at some point in the distant past, then they probably aren’t a “jobseeker”. If they didn’t come to the UK to look for work, then they probably aren’t a “jobseeker”. If there are any restrictions to their work availability, then they may not have a “genuine chance of being engaged” and so would not be a jobseeker. If they are refusing to look for work for no reason at all then they are not “providing evidence of seeking employment” and are not a jobseeker.

These sorts of arguments give you the best chance of winning the DWP round without a tribunal hearing. It is also worth remembering that if the DWP cannot prove that your client is a jobseeker on the paper evidence, it is not incumbent on your client to present themselves to give evidence and it may not be in their interests to do so.

If that doesn’t work, then you are left with the somewhat grander arguments about statutory interpretation, EU law and whatnot.

I think there are at least three:

(1) It is not the case, as a matter of law, that someone falling within the factual matrix of the Baumbast/Teixiera cases can be said to only have a right to reside as a jobseeker. It may well be that your client does not have a right to reside under reg 16 of the EEA Regs, but they nonetheless have a right to reside by the direct application of the Court of Justice decisions and EU legislation to the facts of your client’s case. We do not depend on the EEA Regs to establish these rights - they have an independent existence.

(2) At any rate, nobody can make any real sensible argument as to why the DWP’s position would make any sort of sense as a matter of EU law. There is a failure to explain it in these terms (see the concluding paragraphs of HK v SSWP (ESA) [2017] UKUT 421 (AAC)). It is basically a drafting accident - there is no aspect of logic or principle in the notion that people covered by both Teixiera and Antonissen ought to be placed in a less favourable position than people covered only by Teixiera.

(3) Even if it were the case that there was some sort of conflict between rights under Teixiera and those under Antonissen, why would the latter take precedence over the former? That makes very little sense. Neither set of rights arises from Directive 2004/38/EC and there is little reason for national law to treat Antonissen rights as directly equivalents to the rights of (say) a worker, whilst Teixiera style rights are relegated to being a right “of last resort”. If anything, it should be the other way round -  Antonissen style rights of a jobseeker have always been treated with very little regard and ultimately, these days, seem to amount to little more than a sop thrown to those seeking to establish themselves in another state. Teixiera style rights are of a fundamentally higher importance given that they relate to the absolute right of a worker’s children to establish themselves in education under the “best possible conditions”.

We’ve had a number of these cases and won them all. Hasn’t got to UT yet - can’t come soon enough though.

WR Adviser
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Thank you all for your helpful input here.  I am amazed we have never come across this before as an issue reading what is being said here!  We are about to submit an appeal request so will throw it all at it!  Thanks again

Daphne
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I’ve been advised by a CAB that - following a refusal of UC at First-tier Tribunal on the basis that jobseeker status trumps derivative right of primary carer - the case is now going to the UT.

Permission was granted on the grounds that, although in the Judge’s view the legislation had been applied correctly, it would be advantageous to have a UT decision on the point raised by UT Judge Jacobs in HK v SSWP [2017] UKUT 421.

SARC
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I have a case in the Upper Tribunal on the matter at the moment and it’s been linked to another appeal on the same issue. We are waiting for the DWP’s response to our appeal currently which should come in around a month. I’ll keep everyone posted.

Elliot Kent
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Free Movement reporting the ECJ case of Jobcenter Krefeld – Widerspruchsstelle v JD Case C-181/19 which appears to confirm that the DWP argument is wrong.

69. Further, while it is true that persons, such as JD and his daughters, also fall within the scope of Article 24 of Directive 2004/38, including the derogation provided for in Article 24(2) thereof, on the ground that they have a right of residence based on Article 14(4)(b) of that directive, the fact remains that, since they can also rely on an independent right of residence based on Article 10 of Regulation No 492/2011, that derogation cannot be used against them.

70. First, the Court has previously held, with respect to jobseekers, that the derogation provided for in Article 24(2) of Directive 2004/38 is applicable only to Union citizens who have a right of residence solely on the basis of Article 14(4)(b) of that directive (see, to that effect, judgment of 15 September 2015, Alimanovic, C-67/14, EU:C:2015:597, paragraph 58). Second, the fact that jobseekers have specific rights under that directive cannot, having regard to the independence of the bodies of rules established by that directive and by Regulation No 492/2011 respectively, entail a diminution in the rights that such persons can derive from that regulation.

71. Moreover, as correctly observed by the Commission, it would be paradoxical if Article 24(2)of Directive 2004/38 were to be interpreted as meaning that it would be appropriate not to grant entitlement to social assistance to persons who can claim not only a right of residence as a parent, under Regulation No 492/2011, but also a right of residence as a jobseeker, under Directive 2004/38. The consequence of such an interpretation would be to exclude from the benefit of equal treatment with nationals in the matter of social assistance a parent and his or her children who have a right of residence under Article 10 of Regulation No 492/2011, where that parent decides to seek employment in the territory of the host Member State.

h/t Clive at Newcastle Welfare Rights

Elliot Kent
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And now this: Sandwell MBC v KK & SSWP [2022] UKUT 123 (AAC).
https://www.gov.uk/administrative-appeals-tribunal-decisions/sandwell-metropolitan-borough-council-v-kk-and-secretary-of-state-for-work-and-pensions-hb-2022-ukut-123-aac

In which Judge Wright finally disposes of the DWP’s argument with a wholly unwarranted degree of politeness.

It transpires that, in part because Krefeld resolves the matter, the scrupulously fair folks at DMA Leeds were unprepared to defend the DWP’s position.

Martin Williams
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Have Sandwell ever won a case?

[edit: I see they did in 2016 - they do lose a lot though]

Paul_Treloar_AgeUK
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Martin Williams - 25 May 2022 11:28 AM

Have Sandwell ever won a case?

[edit: I see they did in 2016 - they do lose a lot though]

Only on a Wednesbury….

Elliot Kent
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Martin Williams - 25 May 2022 11:28 AM

Have Sandwell ever won a case?

[edit: I see they did in 2016 - they do lose a lot though]

It is incredible that they did not withdraw their appeal once either (a) the Krefeld decision came out or (b) the DWP themselves withdrew support for the argument.

Perhaps they can be forgiven as it has at least produced a published decision putting the issue to bed after six years or more.

HB Anorak
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Local authorities will sometimes “take one for the team” as it were in cases like that - play devil’s advocate and argue a point of law you believe to be wrong but DWP insists is correct, just so that something exactly like this will happen.  London Borough of Hillingdon have been very willing to do it down the years.