UC refusal - loss of retained worker status

HI, I am struggling with a UC appeal and R2R rules, your thoughts would be welcome as my head is now spinning!

My client is an Italian national who has lived in the UK about 21 years. However, his employment and self-employment history is very sporadic, with bankruptcies and spells in prison. Try as I might, I cannot show 5 years of continuous work for permanent residency.

He was getting ESA on retained-worker status, but the evidence for this is no longer available and may well have been mistaken. He failed the WCA in Oct 17 and did not challenge the decision past MR. He then claimed JSA for 2 months and then tried to re-claim ESA but we had gone live with UC so was directed to claim that. In Jan 18 his UC claim has been refused as the DWP state he has no right to reside in the UK and his retained worker status was lost when he failed the WCA in 2017.

He now gets PIP, this is his only income and so he is in rent arrears.

He was doing some permitted work while on ESA. There is no evidence to support permanent incapacity for work as he carried on working after an accident at work 2 years ago and has had some spells of work in 2017.

He is not a jobseeker - he has been sending in fit notes

His only family here are brothers, so the DWP does not accept he has derived rights to reside through them

So, .... does there still exist an argument that he did keep his retained worker status after failing the WCA, claiming JSA and then claiming UC under the temporary sickness route….

Your thoughts would be welcome!

Was the permitted work whilst on ESA not enough to make him a worker? I guess it might be easiest to establish that given it is so recent. Then trace a line from that through JSA to UC.

Another point that might help- Failing the WCA does not mean he ceases to retain status of worker on basis of illness- that is a different test (whether he was unable due to illness to do the work he had been doing) from the WCA.

Also… could he now appeal the ESA stop decision? Still within max limit to request MR.

Also…. the stop decision on HB is wrong as under reg 8 of the UC(TP) Regs the SSWP was plainly not satisfied the claimant was a person in GB when he notified the LA to stop HB. I would challenge that as well.

Actually appealing the ESA decision and challenging the HB one is probably the best way to proceed (get those dealt with before any UC appeal and then drop the UC appeal if you win on those).

Martin

All of the above is right, of course…...however;

- given that UC for all claimants is an inevitability at some point, I’d say it is worth pursuing the UC right to reside appeal as well. Even if the UC appeal is successful, the client could still opt to remain on ESA and HB, assuming the challenges to those decisions are also successful. But having a successful UC right to reside appeal on record would be useful at the point that the client does have to claim that benefit. (I recently had a very similar case where we won both the ESA and UC appeals - and my advice to the client was to go with UC claim now given that there was no guarantee that the DWP would not make another hash of the right to reside question at the future point she did have to convert to UC - but that’s just my view on the particular facts of that case).

- as Martin says, it is conceivable that the client acquired worker status simply by virtue of the permitted work.

- any other period of employment where his activity was sufficient to acquire worker status could result in that status being retained.

- implicit in what Martin says about a WCA failure not meaning that worker status cannot be retained on the basis of temporary incapacity is the fact that it is not even necessary to have claimed ESA (or whatever sickness benefit is available in the relevant host member state) in order to retain status. All that is required is medical evidence that the claimant was temporarily incapable of work during the relevant period - a relatively brief letter from a GP would be sufficient for this (this also means that there is no problem with a GP’s letter referring to periods several years in the past).

- whilst it may be difficult to get evidence of dates of employment/P45s/P60s from the client, all you really need is a statement from him that at some point his economic activity was sufficient to have acquired worker status. And you appeal the UC decision on that basis and the fact that he subsequently retained status via temporary incapacity. In the UC appeal you then ask the DWP to provide a complete record of the client’s NI contribution record. And you cite Kerr v Department for Social Development [2004] UKHL 23 as authority for the fact that it must provide that information. The NI records will allow you to determine whether he did acquire worker status and to demonstrate that at tribunal. UC are rubbish at many things, but my experience is they do invariably provide the records when asked.

There is another good reason for this approach - it is conceivable that your client may have been entitled to ESA in the past either under the transitional protection provisions or because the DWP simply made a mistake (it does sometimes makes mistakes in a claimant’s favour). Either way, it would assist the client to know this - there is no transitional protection for UC, so an understanding of his actual position will allow the client to make informed choices about his future (e.g. returning to and perhaps increasing permitted work if the ESA appeal succeeds - thereby acquiring worker status) in preparation for the inevitability of UC.

Many thanks guys for your thoughts, greatly helped me!

I had lodged a late ESA appeal already but will now try to get through a late HB review - thanks for that info on Reg 8.

I will push the non-loss of retained worker status for the UC appeal and post the outcome when we have had the hearing.

Once again, many thanks, Tracey