Retaining worker status & temporary illness

I’d be interested in anyone’s thoughts on whether my client would have a right to reside for UC. She has pre-settled status and resigned from her job 2 weeks before lockdown due to concerns for her health (hospitality industry, lots of contact with the public). She is in the vulnerable group so now shielding.

She can’t retain worker status as she gave up work voluntarily. And she’s not ill, she was avoiding becoming ill so, no right to reside…....

Thanks in advance.

Worker status is retained when you are in “duly recorded involuntary unemployment” and have “registered as a job-seeker with the relevant employment office”.

The reference to “involuntary unemployment” does not mean that someone who has chosen to leave their work is automatically considered to be “voluntarily” unemployed and therefore excluded. See MK v SSWP (IS) [2013] UKUT 163 (AAC) at 41-47. It is a question of ascertaining whether someone remains engaged in the labour market.

I think that if your client has left their job due to a concern that the particular nature of the work would put them at risk of contracting the virus and then they have reasonably promptly claimed UC and so “registered as a job-seeker” then they can argue that they haven’t left the labour market and can retain under this head.

You can be involuntarily unemployed after voluntarily leaving work, provided you are realistically in the market for effective and genuine work.  The difficulty in present circumstances is mounting a proper search for effective and genuine work, but as a matter of law it’s not impossible to have a right to reside as a worker with retained status after resigning from a job.  The circumstances in which the previous job ended are relevant only as evidence of realistic future intentions.  For example if you have a history of walking out after two weeks, or getting fired repeatedly for misconduct, these events might amount to evidence that you are not realistically in the market for effective and genuine work.

See CH/3314/2005

PS SNAP - should have checked the rota!

Thanks both. I was focusing on Reg 6(2)(a) temporary illness because she would be entitled to claim NS/ESA but would need to claim UC for the housing element. 

To get some money in to payment is it NS/JSA & UC or NS/ESA & UC. She has a non-EEA husband currently unable to work (self-employed).

I am getting very confused!

Isn’t she temporarily unable to work due to illness (and therefore retains worker status?).

1. She has a health condition which makes her vulnerable in the event she gets Covid-19.

2. Her normal work puts her in situations where she would be at risk of getting Covid-19.

3. She is therefore, because of her underlying condition and the present pandemic unable to do the work which she normally does.

That meets the test for being temporarily unable to work due to illness in my view.

There is an old case from Judge Jacobs which makes the point that the test of whether person unable to work due to illness is not the test for ESA or IB but simply whether the person is unable, due to illness to do the work they had previously been doing. (CIS/4304/2007- para 35)

I know it might be said that her illness had not changed at all - I agree. But I don’t think that matters. Of relevance is a really early case where person had backpain (CIS/3890/2005)- what must be temporary is your inability to work not the health condition.

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If that does not work then note there is a permission application pending in Court of Appeal for Fratila in which we hope to establish that PSS is sufficient right to reside to get UC. Have asked for that to be heard by end of July.

Sorry cross post- you are right to focus on reg 6(2)(a).

I think it would be JSA as she isn’t sick or isolating or shielding, she is just out of work.  Whether there is any point claiming JSA as well as UC is for her to decide - possible advantage would be better credits and keep the award if her partner’s work picks up again quickly

I think you can go either way. (I had missed that she was shielding from the first post).

If she is shielding, she has LCW for ESA purposes. She can claim nsESA and for UC she can argue 6(2)(a) with (b) as an alternative.

Otherwise, she can claim nsJSA and can argue 6(2)(b) with (a) as an alternative.

Thanks Martin; I will suggest this approach. She will complete 5 years residence in a couple of months, fortunately.

Thanks for all the input.

Thanks Elliot, I’m a bit concerned about the passage of time for the involuntarily unemployed and registered with the relevant office argument but we could argue husband was still earning etc (unless she didn’t retain worker status in which case he had no right to work etc etc, time for a brisk walk round the garden I think!).

Husband not an EU national then?

Husband is non-EEA and self-employed; unlikely anyone will check his right to work. I was getting a bit muddled!