Another UC habitual Residence decision!!

Client was previously self-employed from 1/1/16 till 8/6/17 when he sustained an injury and claimed ESA.

ESA awarded with R2R due to being “temporarily unable to work due to illness”. However he then failed WCA and ESA ceased in March 18. MR decision is still awaited on the ESA claim, but that is another story!

He then claimed UC, still submitted “med certs” but he has failed R2R test. MR submitted on his behalf and they have once more refused the claim and they have stated that they cannot treat him as “temporarily unable to work due to illness” because he had failed the WCA on his previous ESA claim.

I believe that he should still retain worker status for “temporarily unable to work due to illness” as there is no legal requirement to claim a sickness related benefit for this status to stand.

I also believe that he could retain his self-employed worker status as he has not ceased self employment and hopes to return when well, and he had been self-employed for over a year.

He hasn’t been in UK long enough for permanent residence.

From the other side - 29 June 2018 02:33 PM

I believe that he should still retain worker status for “temporarily unable to work due to illness” as there is no legal requirement to claim a sickness related benefit for this status to stand.

I also believe that he could retain his self-employed worker status as he has not ceased self employment and hopes to return when well, and he had been self-employed for over a year.

I’m taking the first as saying: “I was self-employed but I’m not anymore because I’m temporarily unable to continue - notwithstanding what ESA say - so I have status under reg 6(4) of the I(EEA)Regs” and the second as saying “Even though I’m sick, I continue to be a “self-employed person” because I haven’t really ended my work - I am just taking some time out due to my health”.

Both seem reasonable enough arguments.

As to the first, CIS/4304/2007 tells us that temporary incapacity is a question of EU law and domestic benefit legislation does not have much sway. “The question is: can she fairly be described as unable to do the work she was doing or the sort of work that she was seeking?” (para 35). HK v SSWP (ESA) [2017] UKUT 421 (AAC) is recent confirmation of that decision. I can see no reason why the logic would not apply to self-employment as well.

As to the second, SSWP v JS (IS) [2010] UKUT 240 (AAC) tells us that a period of “self-employment” may survive periods where no or little work is done. The decision is one of the very few which is extensively quoted in ADM - at C1452. Again, that case was confirmed recently in HMRC v HD & GP [2017] UKUT 11 (AAC). The context of those decisions was a little different - neither was concerned with a period of sickness - but the point would seem to apply to sickness equally.

I think I would prefer to run this sort of case on the first ground (with the second as an alternative perhaps) because the first point slots very neatly into the regulations which makes it much easier for the DWP to revise their decision and lapse the appeal.

Just an update but I entered the appeal on the basis of the first point and I quoted CIS/4304/2007 and also HK v SSWP and the Appeals Team at DWP have now accepted my stance and issued a favourable decision that client has a right to reside for UC purposes.

Thanks Elliot for confirming my thoughts.

Hello,

I have a similar query.
EEA national who was self employed as painter/decorator until a stroke in June. Was not claiming benefits prior to stroke, tried to apply for UC, was rejected as classed EEA jobseeker.

Would they have retained worker status if they are unlikely to return to work following stroke?

Thanks

When he claimed UC did he have a med cert from his GP, if so he should retain his worker status due to being ” temporarily unable to work due to illness”.

With regards to him being unlikely to return to work how long had he been working in the UK?