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Forum Home  →  Discussion  →  Residence issues  →  Thread

Child Benefit and Retained Worker Status

Abi Sheridan
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Expert Advice Team (Help to Claim) - Citizens Advice

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Joined: 26 April 2019

Hi All,
I would appreciate any help on a current client I have. She has been turned down for CB as she has no Right to Reside (first of these we’ve seen!).
Cl was employed through an agency and her last job finished on 15/6/18. At this point she was “no longer required” for work (she believes due to her pregnancy, but that’s a whole other potential employment discrimination issue). I believe that her being let go makes her “involuntarily unemployed” at this point (although she was on a zero-hours contract though the agency when she stopped work, but I don’t think that makes a difference?), which should give her retained worker status?
She applied for (and got!) Universal Credit as a jobseeker at this point (first payment 16/7/18), meaning she was registered with the correct office to be a jobseeker, and attended interviews etc until 8 weeks prior to due date. I’m not fully sure if she satisfies the genuine prospects for work test, as noone would hire her due to pregnancy, but surely they cant use that as a reason she is not a jobseeker? After 11 weeks prior to her due date, does she then become a retained worker due to pregnancy? I’m aware claimants can move between retained status groups, so I hope this is the case. If so, I believe she can stay a retained worker under St Prix until 41 weeks after childbirth, which gives her up until 1/7/19. (Side point here, looks like it is 11 weeks prior to due date, and 41 weeks after birth. Given that her baby was 2 months early, shes lost 2 months of status!)
At this point, she loses her St Prix rights: for her UC I think she’ll be up the creek, but for CB she then becomes a jobseeker again? The niggle for me is that she wouldn’t be required to look for work under Universal Credit as she cares for a child under 1, therefor she couldn’t be a jobseeker under benefit rules. Would she even qualify for this status for the purposes of Child Benefit? I’m also reticent to argue for this status, as it will remove her R2R for the purposes of UC (which, obviously, is a much larger source of income). Any other bright ideas of a Right to Reside status at this point?

Sorry, I know that’s a lot of questions and a big muddle - currently trying to unravel it all, as as a first R2R pregnancy case, this is all new to me!

*note: I’m as curious as you are why she has status for UC and not CB. Attempting to get that information currently….

Anyway, thanks in advance for any help!

Abi Sheridan

Daphne
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Hi Abi

I am no expert on right to reside but I’m hoping by replying it will bump it up and someone with much more knowledge will reply!

The one thing I am pretty sure of is that you can’t get UC on the basis of R2R as a jobseeker. So the fact that she got UC initially suggests to me that they accepted she had retained worker status. And looking at CPAG pg 1574 onwards then I think also, as you say, she can retain worker status through her pregnancy and the 41 weeks after. After that I think she would need to work again to have a right to reside - jobseeker status would be no good for her under UC.

But I stand to be corrected on any of the above!

Elliot Kent
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It sounds like DWP are saying that your client was a worker due to being in work for a time, then after the end of that job “retained” their worker status - initially on the basis that they had become involuntarily unemployed but were registered as looking for further work (see reg 6(2)(b)&(c) Immigration (European Economic Area) Regulations 2016) and then retained that status further by reference to St Prix.

Once the St Prix period is over, there is no reason why they couldn’t then return to retention on the same basis as previously - albeit the DWP might raise questions about GPOW. As you say, you can switch between these statuses - confirmed by CIS/4304/2007. Or perhaps your client may seek to retain their status on the basis of temporary incapacity or a further St Prix period or whatever - who knows what the future brings.

The “child under 1” thing is a bit of a nasty trap. There is nothing to legally prevent your client from looking for work or actually working whilst being a parent to a child under 1. It is just something which the DWP has built into the design of UC. Your client should be able to continue to hold status on the basis of being a former worker looking for work even whilst having a young child, provided she is able to evidence her work-search. This is the same as the Elmi case which found as much for Income Support. Of course, your client is going to have to be briefed on rebuffing the well-meaning work coach who will doubtless tell her that she needn’t be looking.

As to GPOW, I do think that they can to some extent take into account childcare responsibilities as a factor counting against you for these purposes - but the counter-point is that you do not need to have a genuine chance of finding a full-time job. Provided that you are able to show a genuine chance of finding something which works around your childcare and which is still “genuine and effective”, that ought to suffice.

It is a bit unusual to be awarded UC but refused ChB - it is more often the other way around. There is pretty much no co-ordination between the two. But the fact that DWP appear to have accepted your client remains a worker may well be quite effective in persuading the Tribunal that she is entitled to ChB also.