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Right to Reside JSA

Jegger17
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My client’s IBJSA was suspended in September 17 due to being subjected to a GPOW.

He is a Spanish national and has been in the UK since 1996. His work history is sporadic and he sustained reasonable employment on/off until at least 2007. He has been supporting himself with claims between JSA/ESA since then.

I can only count 33 months employment since 1996 (so am presuming no argument for PR as a worker?).

The statement of reasons originally inviting him to a GPOW is not forthcoming from the DWP. I have requested this a number of times and can’t really challenge the decision without the info/dates that they are saying his R2R ended.

Is there a possible argument that he has retained his worker status (involuntarily unemployed and registered as a jobseeker). He has had various claims for IB/JSA/ESA since his last employment ended so am surprised why DWP are subjecting him to a GPOW now, some 10 years after he has stopped working? In this situation DWP should have invited him to GPOW six months after R2R ended which they are saying is September?

He has loads of info relating to his past employment but due to time and his health conditions this info is vague.

HB is also suspended and (social) landlord are refusing to hold off on collections activity pending DWP decision, which I think is unreasonable.

Does he retain worker status (involuntary unemployed and registered as jobseeker) even where there are large gaps in work history and sporadic benefit claims since 2007?

Elliot Kent
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Hi,

Your client is probably being put through GPOW because when he first claimed JSA he was recorded as either a jobseeker or a retained worker. You can’t challenge that decision because it is in your client’s favour. Your client will only have a right of appeal if his benefit is stopped after the GPOW.

In a case like this, you will normally be looking for permanent residence as the first port of call. That requires 5 continuous years of lawful residence (not necessarily 5 years of working). This can include gaps through which your client is sick or jobseeking. It is possible (or - I would hazard - likely) that your client can chain together five years of appropriate status over the 22 years he has been in the country.

A permanent right to reside could look something like this:
-Jan 2002 - March 2002; working
-March 2002 - September 2002; JSA
-September 2002 - April 2003; working
-April 2003 - November 2005; ESA
-November 2005 - January 2006; JSA
-January 2006 - August 2006; working
-August 2006 - November 2006; JSA
-November 2006 - February 2007; ESA

That’s a five year period of status as a “worker” even though there’s only a year or so of actual “work”.

Once permanent residence is established, all of the other issues melt away.

Jegger17
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Thanks Elliot. This is a great help.

As you suggest, I am sure I can piece together 5 years lawful residence with periods of jobseeking or being sick.

Problem is, there are large gaps in between the client stopping work and claiming JSA/ESA. Also, I am having some difficulty getting info on the periods of his benefit claims from the DWP. Any suggestions?

Given his increasing rent arrears and the fact his landlord has already applied for his eviction - is there any way for a DM to make a quick (er) decision?

Also, what of his landlord applying for eviction. Surely no court can reasonably grant an eviction when there is (as it seems) a likely chance of the benefit being reinstated pending DWP decision?

Elliot Kent
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As to the gaps; delays in claiming ESA are not problematic as long as your client was unable to work during the gap (there is no requirement to register your incapacity with the state), delays in claiming JSA can be more of an issue - the length of any delay and reasons for it are likely to be relevant.

As to evidence; a good place to start is a subject access request (https://www.gov.uk/government/publications/dwp-request-for-personal-information). Rates and dates will probably suffice. Getting your client’s NI account will probably help too, if it’s that kind of work (https://www.tax.service.gov.uk/shortforms/form/NIStatement). If it gets to appeal stage, the DWP will usually check these records for themselves.

As to the possession action; If the landlord won’t agree to suspend action, it’s imperative that you get your client specialist housing advice. You could refer to the nearest Shelter office (http://england.shelter.org.uk/get_advice/how_we_can_help/shelter_advice_centres) or look for a local solicitor (http://solicitors.lawsociety.org.uk/).

Jegger17
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Ok thanks for your responses - this is a great help!