St Prix and “reasonable period”
Have advisors any experience of the way in which, following Saint Prix the DWP is assessing the “reasonable period” for which a pregnant woman or new mother retains her status as a worker. When I read the lead case (SSWP v SFF, ADR v sSWP, CS v LB Barnett and SSWP) paragraph 15 seems quite clear - it starts when the woman gives up work and then lasts for 52 weeks. It points to specific examples where women work or look for jobs beyond the 11 week before the EWC. But the Decision Makers’ Guide is explicit in making the reasonable period 41 weeks after the birth - and in fact in the Advice to Decision Makers C1521 it says that the award can be shorter than 11 weeks before and 41 weeks after, if the claim was made closer to the actual birth. We are dealing with a client at present who did not give up work until close to the date her baby was born - but she lost her status as a worker 41 weeks after the birth. This seems wrong to me. Any suggestions?
Judge Ward suggested that ‘As a matter of practice rather than of law it seems likely that it will be an unusual case in which the period is other than the 52-week period’ (paragraph 35).
Couldn’t you MR on the basis there is nothing unusual in your client’s case and ask the DWP to explain why they’ve applied less than the 52-week period?
We’ve done that Paul (decision not changed) and we can take that forward now. However, what threw me was the contrast between my reading of the lead case (in particular Paragraphs 26 and 35) and Judge Ward’s treatment of the case of CS who worked until 7 and a half weeks before her expected date, and the very specific advice in the Advice to Decision Makers which is adamant on the 41 weeks after the birth (this would come to 52 in total for anyone who left work 11 weeks before but not for anyone who left work later in the pregnancy). Also when you look at the decision letter they tell the claimant that the rules are that they pass the HRT for 41 weeks after the birth with no caveats. I wondered if I had overlooked something but now I think the ADM is plain wrong. It’s caused a huge problem for our client because there is a gap between her IS ending and her claiming UC, and so they are saying she lost her right to reside as a worker because her maternity leave ended in March, even though she worked to the end of May in the previous year. I wondered if there was new case law i didn’t know about, or if anyone has come across the same problem.
A late update to my query! The problem was when the ” reasonable period” lasting one year starts. Our client had worked whilst pregnant until about three weeks before the birth of her child. She gave up on 30 May, had baby 15 June.
We followed SSWP v SFF, ADR v SSWP, CS v B Barnet and SSWP  UKUT 0502 which states quite clearly (and in the case of CS explicitly) that it starts when the person gives up work because of the exigencies of late pregnancy or childbirth. This meant iin our client’s case it should last until 30 May of the following year. However, UC were adamant that it ended 41 weeks after the birth of her child so ending on 29 March. This left her with no retained worker’s status and no right to claim UC. We used a pre-Judicial Review letter, as guided by CPAG and this was amazingly successful - £5000 arrears paid into her UC account three weeks later, thus preventing an eviction. (We had also submitted a late appeal, but when I phoned the Tribunals Service to withdraw it two months later I was not surprised to find that the appeal was still waiting for a decision from the District Judge as to whether it was in time or not!). So first of all I would say that in this instance the CPAG pre-judicial review approach was really successful - thank you Jessica. But secondly,although it was successful in the case of our client, we had also asked for the paragraphs in Advice to Decision Makers (C1510 to C1527) to be changed. Some of them are misleading and others are plumb wrong. I checked recently and the paragraphs have not been amended. I think there may be a number of clients in this position, where decision makers are still acting on the advice. We have written to follow this up but in the meantime, there will be quite vulnerable clients left unable to claim means-tested benefits.