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Forum Home  →  Discussion  →  Income support, JSA and tax credits  →  Thread

A8 - Lone parent and R2R

Altered Chaos
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Hi all,

I am assisting an A8 national – lone parent of 18 mth old - who has been refused JSA(ib) on the basis of R2R.

Cl registered her first employment (A), the latter two were not registered as her employment with employer A exceeded 1 year.

Cl was with employer;
A from 31.08.04 to Spring 2006 – registered
B from 14.08.06 to 14.04.07 – not registered
C from 27.04.07 to 10.08.09

Cl has received 26 weeks JSA(cb) and at present is relying on CB, CTC, HB and CTB.

I understand that one needs 12 months of registered work and that this must be registered within 1 month of starting employment. Cl cannot remember when she registered her employment with A and unfortunately the WR certificate does not state date of application, only date of issue which may be subject to Home Office backlogs.

I am unsure how to proceed and any guidance would be appreciated. Cheers - Chaos

Damian
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It only needs to be applied for within a month to make the whole period legal. If she applied after the month then it is legal from the date of issue, so as long as the date of issue is before one year prior to the last date she worked then she will have stopped being subject to worker registration by the time she finished that job.

Altered Chaos
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Hi,
That’s what I thought…. Cl’s WR cert has an issue date of 06.02.2006 which is well after she started employment, and only a few months before she left in Spring 2006. So I guess not 1 full year’s registration for JSA(ib) purposes.

Chaos

nevip
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She has to be involuntary unemployment.  Why did her last job end?

Altered Chaos
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Cl left her last job on 10.08.09 when her maternity leave ended (then had 26 weeks of JSA(cb)) it is not clear if she continues to ‘actively seek work’.

I had considered the following….
CJSA/3003/08:  Where the Commissioner expresses some confusion as to why date of application is not included on the certificate, given its relevance . He went on to say that the DWP bear the responsibility for obtaining that information, as it will be easily obtainable from the Home Office, whereas the claimant may never had kept a record of when the application was made (never having been alerted of the need to do so).

So if Cl did apply for registration within one month of starting work then she can argue that she had done 12 months of registered work by 31 August 2005 and was thereafter not subject to registering any future jobs.

Hopefully my Cl will recall roughly when she sent registration paperwork.

Damian
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Doesn’t sound to me like she has done 12 months. If the certificate wasn’t issued until Feb 06 I thnk it isn’t likely that it was applied for in Sept ‘04. Always possible I suppose but I don’t think very likely. You might need to think of other ways of having a right to reside besides being a worker. When did she come to the UK, has she been here 5 years?

Altered Chaos
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Hi all thank you for your thoughts.

Cl came to the UK beginning August 2004 and started first employment within weeks.

She left her last work, as far as I understand when her maternity pay came to an end. I have yet to enquire as to why she did not return and get a childminder, or whether the employer ended the job. Will find out Friday. Although for Cl to have been accepted and paid JSA(cb) the JC+ must have been satisfied that she did not voluntarily cease work.

I agree with the comment that it seems unlikely that it would take over a year from application to WRS for Home Office to issue the cert. Maybe there was a backlog as the requirement had only just come in…. but I think that is more like wishful thinking!

I will dig deeper and get back to you, Chaos

[ Edited: 7 Jul 2010 at 08:32 pm by Altered Chaos ]
Martin Williams
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Hi Chaos,

Perhaps a couple of things to ponder:

1. Can she argue 5 years with a right to reside that gives her permanent residence? This would work as follows:

a) Whilst she won’t have a right to reside as a worker for any period where she is an A8 national requiring registration and not working for an authorised employer, she may still be able to argue that the wages from said work were sufficient to give her a right of residence as a self sufficient person. I am not aware of a case on this point as yet. I can’t see why the wages from the work would not be allowed to count as the source of her self-sufficient income (at Reg 2(7) the Accession (Immigration and Worker Registration) Regs 2004 (SI 2004 No. 1219) only declare the work not to be legal for the purposes of those regulations and not generally (ie it stops her getting a right to reside as a worker but thats it).

b) One issue that will arise is whether she had health insurance during this period (a requirement for self-sufficiency). Annoyingly the Department often seem to make an issue of this at Ft Tribunal but when it gets to the UT then they find all sorts of reasons to agree with submissions to the effect that someone covered by EC Reg 1408/71 (and presumably now EC Reg 883/04) has an entitlement to benefits in kind for sickness (eg NHS treatment) and that satisfies the provision- see the comments of the ECJ in Baumbast at para 89. That decision is here: BAUMBAST

c) Remember that the first month of any job counts as legal (and during that time she had a right of residence as a worker) in all cases- whether it is eventually registered or not - Reg 7(2)(d) and (3) of the Accession Regs (cited above).

d) She is obviously about 21 days short of the full 5 years just using those two sources (periods as a worker and periods as self sufficient)  of time with a right of residence- perhaps if she came to UK shortly before the work started she was also self sufficient or was in her initial 3 months residence? That could give you the 5 years before the IS claim.

2. In my experience the Home Office phone line will generally let you know the date the application for registration was received. I agree it is intensely annoying that the certificates do not contain the three dates one needs to know to work out whether a worker has completed the 12 months (date job started, date application received, date certificate issued).

3. I know it is not strictly relevant for this client (as she doesn’t appear to have done 12 months work) but with regard to why her last job ended- I am not so sure that this is in fact so relevant here. The caselaw suggests that the term “involuntarily unemployed” in the Directive (Art 7(3)(b) to (d)) and the Immigration (EEA) Regs 2006 (SI 2006 No. 1003) at Reg 6(2)(b) is not so much directed at the reason for leaving the last job but actually at whether the person remains in the labour market (ie desires and tries to get another job- which would be shown by the fact of signing on and actively seeking and being available for work in general). See in particular CH/3314/2005 (a decision which is probably wrong in so many other ways but ok on this point):

11.  Thus, it seems to me, the term “voluntarily unemployed” must be regarded as focussing on the question whether the claimant is still in the labour market rather than on the circumstances in which he or she ceased to be employed, although the latter may be material as evidence as to whether or not the claimant is genuinely still in the labour market.  It was therefore unnecessary for Mr Venables to argue, as he did, that the claimant was forced by her circumstances to give up her employment and so did not give it up voluntarily.  Indeed, such an argument would not avail a claimant who was forced to give up employment due to childcare responsibilities and then remained unavailable for work due to those responsibilities.  I accept the Secretary of State’s submission that such a claimant would lose the status of “worker”.  That, though, is not the position in the present case.  If the claimant’s evidence is accepted, she ceased to be in the labour market for full-time employment but did remain in the labour market for part-time employment.  It is common ground that being available for part-time employment can be sufficient to enable a claimant to retain the status of “worker”.  Whether it was sufficient in the present case is a matter to which I shall return below.

(note- the Commissioner means involuntarily unemployed where he says “voluntarily unemployed” in the first sentence- it is an unfortunate slip of the pen).


The same point is also made in EM v SSWP [2009] UKUT 146 (AAC) at para 10.

Whilst the circumstances of leaving a job may indicate an abandonment of the labour market (in the sense of it being evidence that this is the case) then it is only a factor and one would need to look at ongoing relationship to the labour marker as well.

4. In these cases always worth asking the awkward- are you married to dad of kid question- if still married etc then still counts as family member even if separated.

5. Also worth checking other family members (parents who are supporting etc).

6. Finally she needs to GET A JOB AND REGISTER IT or TAKE STEPS TO BECOME SELF EMPLOYED to be certain of sorting things out at the moment.

Hope that helps.

Martin.

[ Edited: 22 Jul 2010 at 11:26 pm by Martin Williams ]
Altered Chaos
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Can’t thank you enough Martin, I don’t do many RTR/HRT cases and I was begginning to flounder.

Yes, Client was in the UK for 35 days before starting work - so that covers the 21 days short.

Cl was married (to A8 Nat.) but fled domestic abuse with the child - local authority (under children’s act I believe) housed Cl as significant risk of danger to child - Cl now divorced and no support from family.

Throughout the period of being turned down for IS, making claim for JSA(ib) Cl has been actively seeking work and signing-on at JC+ so is still active in labour market.

Thanks again, Chaos

Martin Williams
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Chaos:


With regard to the client marriage then if her husband (even during period she was separated from him) had a right of residence (typically by being an A8 worker in registered work or one who had done his 12 months on scheme and so not required to register) then she had a right of residence throughout that period as his spouse as well.

It is clear from Diatta Case C-267/83 that she remains a family member even when separated.

Her establishing that he was in work and registered etc. will presumably not be possible (given the domestic violence). Therefore, this is a classic case where the DWP should do the chasing up of his NI record and also of his worker registration details - Kerr v DSDNI [2004] UKHL 23 per Baroness Hale at paras 60-65. if the case is with the tribunal already apply for a direction that they get this information.

Note also that any work she does (even if not registered) during a period when:

1) She is still married to him; and
2) He is a person with a right of residence other than that of an A8 national required to register who is working and registered etc. (eg fine if he is working in a period where he has already done his 12 months or is self-employed).

will count as legal work and help her to meet the 12 month rule- see Reg 2(7)(c) and (6)(b) of the Accession Regs 2004.

That may well mean that she has done her 12 months legal work and even if no permanent right of residence (or that argument fails) she can argue retaining worker status under Reg 6(2)(b) of the I(EEA) Regs 2006.

Finally, the divorce issue (if he was worker etc at time of divorce) raises questions relating to Art 13(1) of the Directive 2004/38- although the correct interpretation of this is probably another area where the DWP will take view that no rights arise- see commentary in CPAG’s HB&CTB; Legislation current edition at page 281 under head [2.5].