ESA and R2R
This is a complex issue and I am just floating it to see what people think.
Cl is an EU national who worked in the UK for a year or so and then fell ill. Cl claimed ESA and was paid it up until a WCA found them capable of work. MR was refused and cl. appears to have appealed the decision. ESA did not raise any issues about R2R/Habitual Residency
Cl claimed UC when ESA stopped but this was refused on R2R/ Habitual Residency grounds.
I don’t think the cl actually needed to claim UC when ESA stopped if they could get by while the MR took place, couldn’t they have just returned to ESA once the appeal was lodged? It doesn’t involve a new claim for ESA so it wouldn’t automatically trigger UC and ESA had accepted R2R etc and it would be perverse and unlikely that the appeal would give any grounds to reconsider that particular aspect
In practice I expect the claim for UC would frustrate this so the question is somewhat academic ( unless DWP mis advised them)but I would be grateful for any opinions.
What might be happening is that DWP are saying that client no longer has a RtR as somebody temporarily unable to work due to sickness as they have failed the WCA.
There are two things wrong with that approach. First that there is case law confirming that the concept of ‘temporarily unable to work due to sickness’ is a EU law concept and separate from country specific rules used to establish incapacity to work/LCW/etc. See https://www.rightsnet.org.uk/welfare-rights/caselaw/item/Right-to-reside-whether-claimant-dependent-on-daughter-temporarily-unable-t.
Although that is not to say that a RtR DM could not use the WCA medical report as evidence in a proper consideration of whether the client is unable to work due to sickness - just that the process cannot be automatic.
Secondly (although this would not apply if the client was claiming appeal rate ESA or claiming UC and handing in medical certificates saying they are not fit for work) the client could still retain their worker status and claim UC by being a person who is involuntarily unemployed and registered as a jobseeker - note that this is a retained worker status and not the ‘basic jobseeker’ status that is not sufficient to claim UC.
If this was indeed the case then I’d say the DWPs actions are not necessarily ‘perverse’ although I do think they are probably wrong and the RtR decision should be challenged.