HB/EEA retained worker ... here we go again… ?

I am working with an EEA National (Portuguese) who has retained worker status but is currently temporarily unable to work because she is unwell.

Claimant was found FFW in November 2017 and we have submitted a late MR. DWP have decided not to look at the MR because it has been submitted late (complaint raised)

My issue is with housing benefit. No HB has been paid from November 17 - February 18 and they will not assess her claim on nil income (claimant in receipt of CTC and CB for this period), stating that because they cannot see her MR with the DWP on their internal system she has no entitlement to claim housing benefit.

HB refer to the regulation that applies to not awarding Housing Benefit for the period is that claimant was not on a passported jobseekers benefit, it is Regulation 10 of the Housing Benefit Regulations 2006.

I think she should be treated as retained worker due to being temporarily incapacitated under reg 10(3b)( c) so no passported benefit is required and the council can complete a nil income assessment.

Any ideas?!

HB have decided no HB entitlement because they determined that your client does not have a right to reside.

You should appeal that decision on the ground that your client does have a right to reside because of retained worker status

In the meantime, I would appeal the ESA decision now. The 3JP held in   R(CJ) and SG v SSWP (ESA) [2017] UKUT 0324 (AAC) that the tribunal must consider the appeal once the DWP refuse the MR because it is late

(1) If the DWP refuse to revise the WCA decision on the grounds that the request was late, you still have a full right of appeal against the decision and can just lodge an SSCS1 - see R(CJ) and SG v SSWP (ESA) [2017] UKUT 324 (AAC). You do not need to justify the lateness of the MR to the Tribunal - its a full merits appeal.

(2) The LA are making excuses. When your client was receiving irESA, she was passported to full HB. When it stopped, it became incumbent on the LA to make its own decision about her entitlement. They should make their own decision as to whether (a) she has a right to reside and (b) what is payable in consequence.

(3) However, when your client lodges an appeal she will (presumably) be passported again as her ESA will be reinstated once she appeals. Lodging an appeal may well be a quicker route to getting benefit restored than trying to explain all of this to the LA.

(4) Your client may well be in a period of “temporary incapacity” as you say notwithstanding that she has failed the LCW. Different questions are being asked - the question for EU law purposes is “can she fairly be described as unable to do the work she was doing or the sort of work that she was seeking?” (see HK v SSWP (ESA) [2017] UKUT 421 citing CIS/4304/2007). The question for ESA purposes is altogether different.

Hope this helps.

Thank you both for your help

A worker retains worker’s status if they are temporarily unfit for work or are unavoidably unemployed and seeking work.  It seems to me that your client could fit into either category.  We shouldn’t fall into the trap of thinking that because she is not claiming or in receipt of ESA she is not temporarily unfit for work.  I can’t see why a GP note would not be enough proof that she is unfit (I’ve used this in the past where there are gaps in employment history but claimant has not got round to making an ESA claim).  And if she does the same as UK claimants when they fail a medical, and follows the job seeking requirements up to the point her appeal is lodged then she is a worker who retains worker’s status. (The only problem here is sometimes such people are defined as jobseekers and not entitled to HB - this is incorrect - she is a worker, who was then ill, and following that was unavoidably unemployed and seeking work—it all links back to her worker’s status.