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Forum Home  →  Discussion  →  Residence issues  →  Thread

Gaps in working history

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Rebecca Lough
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Welfare rights - Greenwich Council

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Hi all, would appreciate any thoughts.

I have a client EU national married to an non-EEA national (who is here as an EU family member). She has been here since 2015 and has no wider family members here. They have a 3 year old and they also had twins in January. Client was working continuously until early September 2018 when she was made involuntarily unemployed, then there was some mis-advising so she was initially told to claim IS before they were told that he should make the JSA claim in early October. He did so and this was refused. He has since been working full time. She also claimed maternity allowance from end of November 2018. I queried whether she was fit to work in September given she was pregnant with twins, but she says she was at that point.

She claimed UC and was refused also at the end of November. HB and CB are in payment, TCs were killed off by the UC claim.

Does the gap between her work and the UC claim mean she’s stuck? Am I missing anything?

alang
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I am seeing a lot of cases at the moment where clients fail UC HRT due to issues like this, some of the decisions are absolutely shocking and clearly wrong.. However, even if refused it is worth challenging as there is caselaw CIS/1934/2006 that deals with this issue, it basically says that gaps between employment and being involuntarily unemployed may not be fatal butthe gap should not be too long. The commissioner states that a gap of 2 years would be too long.

Bearing this in mind you are looking at a gap of a few months at most so I would imagine that the client would be OK, but you may have to go through MR and Appeal. Hopefully this helps!

Daphne
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On a slightly separate issue I don’t think the tax credits award should have been terminated. They should only be terminated once the SoS is satisfied that the claimant meets the basic conditions set out in section 4(1) (a) to (d) of the Welfare reform Act 2012 which includes that the SoS is satisfied that has a right to reside. Since the claim was refused on basis of no R2R then she hadn’t met basic conditions so tax credits should not have terminated - you could look to challenge that decision in the interim.

Tom B (WRAMAS)
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Daphne - 11 March 2019 11:40 AM

On a slightly separate issue I don’t think the tax credits award should have been terminated. They should only be terminated once the SoS is satisfied that the claimant meets the basic conditions set out in section 4(1) (a) to (d) of the Welfare reform Act 2012 which includes that the SoS is satisfied that has a right to reside. Since the claim was refused on basis of no R2R then she hadn’t met basic conditions so tax credits should not have terminated - you could look to challenge that decision in the interim.

Is the bar not a lot lower than having a right to reside? section 4(1) (c) simply says ‘is in GB’

Charles
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tbidmead - 11 March 2019 11:48 AM

Is the bar not a lot lower than having a right to reside? section 4(1) (c) simply says ‘is in GB’

Section 4(5) allows regulations to specify when a claimant should be treated as being in GB. Reg. 9(1)-(2) of the UC Regs then specifies that a right to reside is required to be treated as being in GB. This is therefore what is needed to satisfy the requirement of being in GB.

Tom B (WRAMAS)
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Interesting. This is absolutely not what’s happening in practice - the HB stop notifications are being issued before the UC HRT assessment even takes place.

Charles
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Yup. See Daphne’s post here.

I presume the reasoning is that although legacy benefits only stop through a claim for UC when s.4(1)(a)-(d) are known to be satisfied (TP Regs, r. 8), they would also stop from the date entitlement to UC begins, if that is earlier (TP Regs r. 5). DWP therefore issue the stop notification because in many cases claimants end up with entitlement from the date of claim even if s. 4(1)(a)-(d) are not yet known to be satisfied. This stops overpayments caused by legacy benefits carrying on longer than they should if the claim is accepted. Of course it also means that if the claim is refused due to s. 4(1)(a)-(d) not being satisfied, legacy benefits will have to be manually reinstated.

Rebecca Lough
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Thanks all.

We’ve had real difficult persuading tax credits to put anything back into payment without going to tribunal (which works out in the end, but of course takes months while they’re desitute).

Dan_Manville
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alang - 08 March 2019 08:48 AM

I am seeing a lot of cases at the moment where clients fail UC HRT due to issues like this, some of the decisions are absolutely shocking and clearly wrong.. !

I’ll echo that. I’ve only seen one UC HRT but in the submission it actually accepts she stopped work due to her mental illness but still refutes her R2R.

Ruth Knox
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i agree.  I am seeing cases where wrong decision is being made.  I am attaching my list of cases on gaps, hours of work etc.  And also of course, any working status is retained for a year of maternity leave, regardless of what client claimed or didn’t claim in that time.

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alang
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Ruth that is an excellent resource, many thanks I have duly pilfered it for future reference!

In some ways it is reassuring you are all having same probs with HRT decisions, means I am not going totally mad, only slightly.

Ruth Knox
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Actually that list isn’t complete. Ive been dping some work today and have come across references to SSWP v IR[20009] UKUT 11(AAC) and FT v (1) Ialington LB and (2) SSWP (HB) [2015] UKUT 121 (AAC) and think these might be more helpful but havent had a chance to look at them yet.  good luck.  Ruth

Ruth_T
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I would add CIS/1502/2007 which relates to agency employment.

Rebecca Lough
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Super helpful - thanks.

Ken Butler
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Disability Rights UK

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Hi,
I’ve been searching online and just can’t find the following decisions -

[2009] UKUT 11 (AAC)
Gap of nearly three months between working and claiming not fatal.

SSWP v M K [2013] UKUT 0163 (AAC)
Gap from February to May between leaving work and claiming JSA not necessarily fatal.

Would anyone have links for them or could post copies?

Thanks very much to anyone that can help

Charles
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