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Benefits for claimants in full service area but not entitled to UC?
For what it’s worth, the reply to
this FOI request asking about available benefits in these circs, merely says:
...
Under UC regulations, EEA Jobseekers are not eligible to access UC whilst they are
looking for work. UC is replacing 6 income-related benefits and is the only means tested
benefit available in a full service area.
It is true that if one is in a full service UC area AND eligible for UC, then one cannot apply for legacy benefits. But, if claimants are not eligible for UC (ex: EEA Jobseekers), then they can apply for legacy benefits.
So, presumably only EEA Jobseekers whose right to reside is solely from being a jobseeker can now apply for JSA in full service areas?.
It’s great for your clients that they appear to have been successful in obtaining some benefit, but I wouldn’t want to build up hopes that this is likely to be repeated across the board - I think it is more a case of DWP not understanding their own rules, at least as I understand it.
Here is how I think it is meant to work.
Jobseekers must be allowed equal access to benefits facilitating access to the labour market (Article 5 of Reg 492/2011 and Collins case, for example). JSA(ib) clearly is such a benefit. The UK takes the view that Universal Credit is not, and there is support for that position in the Alimanovic case which said that a German benefit bearing a strong resemblance to UC did not have to be offered to EEA jobseekers on equal terms with host state nationals.
It is not correct that only people “eligible” for UC are prevented from claiming JSA(ib) in full service areas. The half-dozen or so local commencement orders, as modified for full service, say that JSA(ib) is abolished as soon as it is claimed by anyone.
The effect of all this is that the UK considers that it can legitimately exclude EEA jobseekers from all means-tested benefits in full service areas - no UC because they aren’t entitled, no JSA because it is abolished if you try to claim it.
How can you reside in a certain postcode district if you are (treated as) not in the UK? 😊
I know you have your tongue in your cheek but there is a serious answer: the acknowledged leading expert on deeming fictions is Francis Bennion whose commentary has been cited in one or two UT/Commissioners’ cases. The fiction should be carried far enough to achieve its objective (in this case excluding some EEA nationals from UC) but no further.
SOOOOO… Further updates:
Two of the original claimants + two from the new pool of three receive JSA. So, of the 7 claims, 4 have successfully received JSA, 1 does not have an end date.
The UC decision letter which informs the client that they are not entitled to UC on account of being EEA Jobseeker now advises that they apply for JSA. (yay!)
The online JSA claim form has been changed to reflect this. It now asks if DWP has informed claimant that they are not entitled to UC. Saying yes progresses the claim. (double yay!)
Disclaimer: We have submitted, but not yet received a decision on these online claims. Some JCPs continue to accept paper clerical claims. There are now 7 (so far) applicants in this pool of online claims. We wait and watch!
SOOOOO… Further updates:
Two of the original claimants + two from the new pool of three receive JSA. So, of the 7 claims, 4 have successfully received JSA, 1 does not have an end date.
The UC decision letter which informs the client that they are not entitled to UC on account of being EEA Jobseeker now advises that they apply for JSA. (yay!)
The online JSA claim form has been changed to reflect this. It now asks if DWP has informed claimant that they are not entitled to UC. Saying yes progresses the claim. (double yay!)Disclaimer: We have submitted, but not yet received a decision on these online claims. Some JCPs continue to accept paper clerical claims. There are now 7 (so far) applicants in this pool of online claims. We wait and watch!
Well I suspect that these claimants will be happy and well done to you for pursuing it.
Two caveats though:
1. It still seems to be the case that what has happened for these claimants is not something that they are actually entitled to in law. There isn’t any legislation which actually permits a claim to be made in these circumstances (as far as any of the people commenting on this thread can see) and - as such - claimants making these claims are entering something of a twilight zone where they are essentially reliant on DWP whim to get these claims done.
2. We need to make sure that we are not selling claimants short by accepting 91 days of JSA rather than pursuing reasonable disputes against UC refusals. Very large numbers of UC right to reside refusals are simply unsustainable and - unless the claimant is literally a new arrival with no family in the UK - there needs to be serious consideration of MR/appeal. Abandoning an arguable dispute for the sake of £1000 in JSA is rarely going to be a good move.
2. We need to make sure that we are not selling claimants short by accepting 91 days of JSA rather than pursuing reasonable disputes against UC refusals.
We are very, very aware of this. We have an internal ‘flow-chart’ of sorts and we’re doing it on a case by case basis. Some failed the GPOW test and others found work. We have MRR/ appeals for those who retained worker status.
It’s tricky, because we (and some JCPs and DWP Partnership Manager, and now the DWP letter) appear to be the only ones advising that clients apply for JSA.
We found legislation that says EEA Jobseekers are not entitled to UC. We found legislation that says if you’re entitled to UC, you cannot claim legacy benefits. We still have not found anything that says if you’re not entitled to UC, you cannot claim legacy.
[ Edited: 9 Aug 2018 at 05:03 pm by MKM35 ]
We finally called CPAG, because we got tired of swimming against the tide and were losing sleep over giving wrong advice.
We don’t know why DWP agreed to review claims on a case by case basis.
We don’t know why DWP changed their online application process and the letters.
We don’t know why some clients received JSA.
But, after speaking to CPAG, we give up trying to find any legislation that specifically states claimants not entitled to *any* benefits. (sigh)
Win some, lose some, I suppose.
Just to note that an entrenched Polish rough sleeper was asked to apply for JSA in a full service UC area.
We’re exploring this further, but wondered if anyone here had any ideas?