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Kerr principle and DWP’s data on EEA worker’s nationality

Jo_Smith
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Morning guys, I am looking for some ideas on how to help my client. I have submitted an appeal re HRT decision for UC. But I am still talking to the DWP decision maker, hoping they’ll be persuaded to revise the decision and lapse the appeal.
My client is an EEA national who is a primary carer of a child in relevant education- these facts are not contested by DWP.
My client ‘s working history is that of a self-employed person and few patchy periods of employment which was dismissed by DWP as not genuine or effective.
Client is now unable to work due to stroke and early onset dementia.

So we are looking at the other parent; my client’s former partner, who is also EEA national and worked in UK whilst the child was residing here.

We asked DWP to implement Kerr principle to identify father’s working history, as all my client has is the father’s d.o.b, passport number, National Insurance Number and his name.

DWP first dismissed Kerr (“This argument is flawed as the Data Protection Act forbids us to do this” ). I bounced it back saying guidance has been updated in Feb 2019

Next they said: “As your case has now gone to appeal the Judge can direct the DWP to access his records and this information would be only for the Judge”

DWP are basically saying they have no evidence of his nationality- nothing to confirm he is or was EEA national.
My client has no other evidence apart what she gave them, which is quite a lot to be fair.

I have looked into Stainsby’s submission (https://www.rightsnet.org.uk/forums/viewthread/14391/#68490 ) but I am too green to fully understand if it helps here, and to use it without fully understanding would be foolish.

My main goal is to help client avoid 54 weeks hearing waiting time.  Surely DWP must have some information about father’s nationality, seeing as we gave them so much details already? 
What evidence would we expect DWP to have? Would they liaise with HMRC?

NB: client has by now obtained Settled Status and has a live UC claim. We are challenging closure of previous 2 claims.

From the other side
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As benefit is now in payment the immediate emergency has passed so you are in the position to play the long game so why not request Directions from a Judge that they must follow “Kerr” in regard to the ex-partner.  DWP cannot decide who has access to the information once they have provided it to HMCTS.

Andyp5 Citizens Advice Bridport & District
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https://publiclawproject.org.uk/resources/the-basics-of-tribunal-representation/

The above is a really handy guide to writing interlocutory applications requesting directions.

C Browne
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Dear Jo,

You may wish to consider referring your client’s case to the CPAG Judicial Review Team. I think that they would be happy to discuss it with you.

Whether the DWP use their available resources to confirm someone’s status for benefit entitlement is an administrative matter that is potentially subject to Judicial Review. Whilst a Tribunal Judge may have an opinion on whether the DWP should use their resources to confirm a claimant’s status, they may restrict themselves to determining benefit entitlement under the regulations.

It’s possible that a Human Rights Act argument could be presented and a First-tier Tribunal may be reluctant to consider a discrimination case.

Just another option to consider.

Cheers

Chris

Jo_Smith
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Thanks very much guys!

By the way, i spoke to soon; in my previous post I said: NB: client has by now obtained Settled Status and has a live UC claim. We are challenging closure of previous 2 claims.

Guess what? Client failed HRT, her claim was only alive for few days. That’s after she (a) posted on her Journal that she has Settled status and gave her case reference number and (b) took her mobile to the Jobcentre, logged in and showed the status decision during HRT interview, plus gave them printed version.

It is a farce, ladies and gentlemen, a tragic comedy. This lady is a carer of severely disabled person, surviving on Carer Allowance only.

New claim. MR. Complaint. JR. Rinse and repeat.

[ Edited: 22 Jan 2020 at 01:02 pm by Jo_Smith ]
Mr Jim
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When she became ill was she working/self-employed right up until she became ill?

Jim

past caring
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1. Jo - I have encountered exactly the same nonsense recently in an appeal that we won and had to request directions in order to get the data/evidence. I can forward a copy of my request for directions if it would help. It covers the same points you need.

2. As hinted at in the post above, do you actually accept the DWP’s view that the work she did was not genuine and effective? Because if a) you can succeed in challenging that and b) she stopped work in consequence of the stroke she will meet the definition of “worker or self-employed person who has ceased activity” in reg. 5(3) and will consequently have a permanent right of residence under reg. 15 (1)(c).

That’s a better route if you can manage it both because she gets a right of permanent residence and because she’s not a hostage to fortune in respect of the ex-partner’s work. I mean, is it even certain he’s an EEA national?

Lastly, I’m a little confused here after your last post - who is the disabled person here?

Jo_Smith
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Right, made a bit of a hash here of things!

1. Original post was about my disabled client who now has EUSS but for purposes of previous UC claims we are arguing that she was a primary carer.
DWP found she had periods of genuine and effective SELF-EMPLOYMENT, but I understand we can’t use that in arguing she was the “worker” in “primary carer of a child of EEA worker” definition.
She stopped working when she gave birth and was on JSA for 10 years. Then returned to s/employment for few years, sporadic periods of JSA, until stroke made further work impossible in 2018. She was employed in early 2000 but not registered with WRS.
Unless I am missing something, primary carer route is the best way to go for me.
I need to read up though on how working but not being registered for WRS counts.
Partner is definitely EEA national.

2. My post from yesterday, about client who failed HRT was about the daughter- the above client’s carer. Shameful mixing up of facts, wrists slapped.
The thing is I saw them together, I got them to put identical messages on their Journal about having settled status, para 7 of Memo ADM 09/19, blah blah, coached how to explain and demonstrate evidence at the JCP.
One failed HRT the other still keeps going. Answers on a postcard.

past caring; please could i take you up on your offer? I’ll message you my email.

past caring
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It gets murkier - whilst I now understand you’re talking separately about the client and her daughter;

1. For you to be mentioning the WRS at all, I am assuming the client is an A8 national?

2. If that is the case, what was the legal basis for her presence in the UK in 2000? It cannot have been on as an EEA national - because that wasn’t an option until whichever A8 country she is a citizen of joined the EU on 1/4/2004 (this also means that any economic activity undertaken before that date cannot assist in the acquisition of rights of residence).

3. If she was here before 1/5/2004, there is a possibility that she may have been exempt from the WRS - there were a number of exemptions, including for those who had leave to remain in the UK as at 30/4/2004 and those who were legally working in the UK on that date and had been for a continuous period of 12 months prior to that date.

4. In any event, WRS at no point applied to those in self-employment - it only ever applied to workers.

5. The same, broadly speaking, can be said for the scheme applying to A2 nationals…..

6. As an aside, in my time, I’ve come across quite a few A8 nationals, usually Roma, who were here prior to 1/5/2004 as asylum seekers - but whose applications were put on the back burner by the HO once it became clear that their country of origin was shortly to join the EU - and were never determined at all after it did. is that what we’re looking at?

6. In your original post you said there were some short periods of employment as well as self-employment - and that the employment was later than the self-employment? I am asking whether - regardless of the DWP’s view - it is possible to argue that one of those was sufficient to give worker status? If so and she stopped work because of the stroke, you have an argument that she has a permanent right to reside as a worker who has ceased activity. If she was a worker and then retained that status via a JSA claim and then stopped claiming JSA because of the stroke, you have that argument. That’s also true of self-employment - following CUC/2714/2018 it is now clear that self-employed status can be retained because of involuntary unemployment, even where the self-employment has lasted less than a year. All I am saying is, don’t take at face value the DWP’s view that the work wasn’t genuine and effective - after all, this is the same organisation that has spouted the guff about Kerr not applying because of the DPA…...

I’ll send you the directions request.

[ Edited: 23 Jan 2020 at 02:47 pm by past caring ]
Abi Sheridan
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Jo_Smith - 23 January 2020 01:38 PM

Right, made a bit of a hash here of things!


She stopped working when she gave birth and was on JSA for 10 years. Then returned to s/employment for few years, sporadic periods of JSA, until stroke made further work impossible in 2018. She was employed in early 2000 but not registered with WRS.

Don’t know if you’ve considered this, but whilst being a jobseeker is not sufficient R2R for UC in itself, it is sufficient to count towards 5 years permanent r2r (see CPAG benefits for migrants p195 if you have it).
So, as she claimed JSA for 10 years, shell have permanent R2R as all she needs to have done is registered with the relevant employment office. There issue with Genuine Prospect for Work test may be overcome if it was before 2006 (as it sounds like it was) as there was no GPOW requirement prior to 2006, so she could be on JSA indefinitely and it would add to her PRTR.
I used this argument in case recently and won. I’ve copied in my argument to save you work, if you decide to go down this route:

1.Between DATE and DATE, X was a jobseeker. This is evidenced by his claim for JSA.
2.The relevant legislation at the time of X’s JSA claim was The Immigration (European Economic Area) Regulations 2006, which does not lay down a time constraint in being a jobseeker. Requirement that all EEA claimants satisfy the Genuine Prospect for Work Test was only instituted on existing JSA claims on 09/02/2015.
3.As X was claiming JSA prior to this date, there was no requirement that after 3 or 6 months he satisfy a Genuine Prospect for Work Test. He was therefore a jobseeker under the definition of a Qualified Person for the entirety of the duration of his JSA claim.
4.Although “jobseeker” is a specifically excluded right of residence for Universal Credit, case law and guidance has established that residing as a jobseeker is included in the definition of “residing legally” for the purposes of counting the 5 years required for qualified person’s permanent right to reside under EEA Regulations. Between DATE and DATE, therefore, X was residing legally.

Reg 6(1)(a) and (4) Immigration(European Economic Area) Regulations 2006;
Briefing Paper Number 06889, 17 June 2015:Measures to limit migrants’ access to benefits, Part 5;
Regs 6(1)(a), 7, 14(1) and (2), and 15(1)Immigration (European Economic Area) Regulations 2016;
Para C1807 ADM

Hope that helps!

Jo_Smith
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Guys, thank you very much for all your questions; I know some answers but others I don’t. I need to sit down with client and work it out. It may not be easy- early onset dementia :(
Thanks for directions and Abi’s argument.

Mr Jim
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Hope your service-user is correct about the 10 years JSA status without any significant break and being in relevant years, therefore, has permanent right to reside.

Going back to post 1. If you do have to go down the road of primary carer - is the father’s name on the child’s birth certificate?

Jim

Jo_Smith
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Hi Jim.
Yeah, father’s name and place of birth is on the child’s birth cert. But UC DM said: ” It may say on your daughter’s birth certificate that he was born in Poland unfortunately this does not confirm his nationality.”

This is the problem; DM says they have no evidence that he is EEA national :(

“Hope your service-user is correct about the 10 years JSA status without any significant break and being in relevant years, therefore, has permanent right to reside.”

Sadly not, from the report obtained from HMRC, there are few significant and regular gaps when client was not working or claiming JSA- just receiving ChB or was self-employed.

[ Edited: 3 Feb 2020 at 02:21 pm by Jo_Smith ]
Stainsby
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I will first of all say that I think my submission should really help your case because it rebuts any argument the DWP may have about the data protection act forbidding them from disclosing the data.

Secondly, it is not for the DWP to say that a party to the proceedings cannot have access to material, that would only be for a Judge to decide in the interests of justice.

The Judge ought to be very hesitant to withhold material because material is open to interpretation .  It is also the case that Rule 2(2)(C) of the Tribunal Procedure rules provides that the overriding objective of dealing with cases fairly and justly includes ” ensuring as far as practicable that the parties are able to participate fully in the proceedings”

Rule 2(2)(c) effectively makes the second part of the DWP’s argument a bit of a nonsense

If the DWP continue to be obstructive about providing the data, you might want to ask the Tribunal to use its powers under Rule7(3) to refer the case to   the Upper Tribunal (UT) and that the UT be asked to exercise its powers under S25 of the Act

The UT has the power hold the DWP to be in contempt

Jo_Smith
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Thanks Stainsby. Do you think DWP would have evidence of father, the EEA worker’s nationality? I am just thinking- why and how they would have it? Maybe he claimed some benefit himself and had to submit a passport- but that’s a maybe. Would DWP have such evidence from HMRC?


Different question: could the Tribunal infer? We have a guy who was born in Poland, with Polish family and Polish name. Client testifies that he is Polish. Sorry for this silly question but would it be within the Tribunal’s remit to infer that the guy is Polish and so he is EEA national.

A Stavert
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Jo_Smith - 04 February 2020 01:13 PM


Different question: could the Tribunal infer? We have a guy who was born in Poland, with Polish family and Polish name. Client testifies that he is Polish. Sorry for this silly question but would it be within the Tribunal’s remit to infer that the guy is Polish and so he is EEA national.

I recently had a similar case.  I had my client’s marriage certificate which showed that she was married in Poland to a man with a Polish surname who had been born in Poland.  My submission pointed out that questions of fact in social security appeals are decided on a balance of probabilities so it was therefore more likely than not that he was Polish. 
The DWP knew that anyway as they had verified his identity when he had claimed JSA.  They used the same DPA excuse as in your case (it would have been GDPR by the date of decision anyway).  The judge called their bluff and directed them to provide the evidence, which they declined to do. 

One of the longest subs I’ve written for ages, the hearing lasted less than 1 minute.