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Forum Home  →  Discussion  →  Residence issues  →  Thread

GPOW and impactr of Covid19 on conditionality

Graham Summers
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Claimant is a Polish single parent (her child is under 2 and is British). She came to the UK on 08/09/15 and currently she has pre-settled status.

She worked from late 2015 until June 2019 following separation from her partner. She claimed and was paid UC, presumably as a person with retained worker status.

On 6th May 2020 she received a UC decision ending her UC as they stated she had failed the HRT (presumably under GPOW). She actually obtained a job in March 2020 but the lockdown prevented her from starting work.

She has submitted an MR and the Decision-Maker is dealing with it as a priority case.

I was at the NAWRA Zoom conference today and the advice from the meeting was that generally conditionality has been suspended but there was no specific guidance regarding GPOW being relaxed. The only guidance I have found is contained in ADM 04/20:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/880475/adm4-20.pdf

Paragraph 11 states that work search requirements should not be imposed for three months from 30/3/20.

The claimant is under considerable pressure and I am aware of CH/2389/2016 and although she has a good chance of winning any appeal the main problem at the moment is her lack of money and the need for a speedy resolution. Has anyone had any cases of GPOW being applied to new or existing cases during the lockdown?

WillH
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Hi Graham,
I don’t think the suspension of conditionality (ie that there’s currently no requirement to work search or be available for work under SI 371/2020) makes a difference to EU law. If you think about the situation before covid-19, it was often necessary to explain to someone who didn’t have to look for work within UC conditionality (eg child under 3) that they nevertheless had to look for work in order to have retained worker status.

Your client worked for more than a year so on the face of it can retain worker status indefinitely (as long as she remains in the labour market) & doesn’t need ‘compelling evidence’, nor does she necessarily have to have a genuine chance of being engaged (para 65 of KH –v- Bury MBC).

So seems well worth challenging the decision. However I would say that she needs to carry on looking for work within the constraints of the current labour market.

Obviously it would be worrying if because of the nature of someone’s previous work or their abilities it was the case that they were considered not to be in the labour market during the period of health restrictions, until their particular field of work opened up again. I haven’t got the impression that’s what DWP are doing though (to be honest I’ve had some decisions which seemed surprisingly positive, & then some clearly wrong decisions in situations that didn’t come up pre-covid, so it’s a complete mixture).

I think what would be necessary is showing your client hasn’t withdrawn from the labour market, which is pretty evident here as she was offered a job even though that didn’t actually start. And I think she’d need to continue to look - some jobs are still recruiting even without start dates, and she could make it clear that she’s ready & willing to start when restrictions allow if that’s a factor.

Daphne
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Graham Summers
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Thanks for the replies.

Daphne could you ask at the stakeholder meetings whether the DWP will issue guidance when they apply the GPOW to take account of Covid19 and the lockdown?

I appreciate that the HRT test is unlikely to be suspended but GPOW allows a certain degree of flexibility.

bristol_1
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Hello, may I piggyback onto this discussion about retaining worker status?

“Your client worked for more than a year so on the face of it can retain worker status indefinitely (as long as she remains in the labour market) & doesn’t need ‘compelling evidence’, nor does she necessarily have to have a genuine chance of being engaged (para 65 of KH –v- Bury MBC). “

Does a claimant’s ability to retain worker status indefinitely following a year’s work apply, if they
(a)  become temporarily unwell for a period? and also
(b) if they do further paid work which is less than a year?

My client worked for more than a year in the UK doing genuine and effective work, and then he was temporarily unwell for a period & claiming UC. He then worked just one day for an agency (with a contract and payslip) and he got injured at work, so was signed off sick by the GP. He was then temporarily unwell again recovering from the injury, and is now back seeking work. We’re trying to get UC for him.

Can he say that he retains his worker status from his earlier period of more than one year’s work? Or did the one day’s work reset his worker status so we count from there?

EC Directive says “he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job-seeker with the relevant employment office”; does this mean they must be registered as involuntrarily unemployed immediately after the period of employment?

WillH
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It is possible to have small gaps between working & registering as a jobseeker, but I don’t think that’s the issue here.

Your client went from being temporarily unable to work (retaining worker status during that time - which can be indefinite regardless of how long you’ve worked as long as the inability to work is temporary) to having one day at work. On that one day, I’d argue he was either still temporarily unable to work (he had a go at work but wasn’t up to it, for example, if that’s arguable on the facts), OR he was able to work so on that one day he regained worker status.

Although gaining worker status on one day isn’t usual, it was agency work with contract & payslip, so if you can show that it would otherwise have continued, it seems arguable (given that you can be a worker if you have a job offer which remains open, for example).

It’s not clear whether he got benefit whilst he was off work recovering from the injury? I don’t think this matters particularly, given he was signed off so he has proof of his temporary inability to work, just wondering.

As an overall argument, I think it would be against the principles of EU law were he to lose his retained worker status yet not obtain (new) worker status because of that one day, if that makes sense.

If he has worker status from that one day, then one issue is that it’s only for 6 months. I think it would be more difficult to argue that he still retains worker status from his previous work, given all that has changed in the meantime (a day of work, an injury, a further period of temporary inability to work but for a different reason, recovery & registration as a jobseeker). On the other hand, if you think it’s possible to argue that he was in fact temporarily unable to work throughout, including on that one day, then you can still link back to that longer period of work.

It’s ok if the basis on which you retain worker status changes (ie from being ill to registering as a jobseeker), & this can all stem from the same period of work - it’s gaps where you don’t retain status that are the problem which I think in this case, it may be arguable that he doesn’t have.

There may also be an argument about the ‘gap’ of one day being negligible and/or it cannot be the intention of EU freedom of movement principles that he would lose out because of taking a day at work on which he was then injured, but I’ll leave that to other people if anyone thinks that would be stronger.

If you mean that there was a gap between him recovering & then registering as a jobseeker by claiming UC this time, that could be harder but it would depend on how long it was & why (was he out of the labour market during this time, or looking informally?)

bristol_1
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Thank you for reply, went on leave before I saw it.
I think what you are saying is the client can’t rely on previous long work stint for retained worker status as a jobseeker, because of the intervening interruptions of sickness and one day work. But, he could move between categories of temp ill/worker/jobseeker - he doesn’t really have significant gaps. I think I agree with you.

You asked about bens he’s been claiming ... backstory here is that he was awarded UC at tribunal in April 2020 on the basis of retained worker temporarily ill. UC only paid him for 6 months (Oct-April) as they say he worked less than 1 year so cannot pay more (UC are wrong on two counts here: wrong about which category of retained worker the tribunal found him to be, and wrong about length of previous employment; previous employment length not relevant for temp ill status).
Client then made 6 further claims to UC, each one was turned down at HRT and he MR’d some of them, one of them has reached appeal stage. We’re trying to get all of them MR’d and joined in one appeal. Meanwhile he may be entitled to NS JSA so advised claim that.

I think my strongest argument is that he moved from retained worker temp ill, to worker, back to temp ill. I don’t know if anyone has a view as to getting UC to correctly implement the tribunal’s decision as they clearly have not done this ...

Elliot Kent
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I think the day of work is a non-event. DWP will not argue it is genuine and effective work and there is no reason for you to so it can just be ignored and it is just a case of hopping between different heads of retention.

If the period of work were longer, it raises the question of whether the indefinite retention of status is lost where the claimant finds and then loses further work or whether they are able to “bank” their ability to retain indefinitely. I am not sure what the answer to that is off hand, but it seems odd that the position would be that someone who loses work and fails to find more work should be in a better position than someone who finds more work but then loses it.

Martin Williams
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On this bit:

My client worked for more than a year in the UK doing genuine and effective work, and then he was temporarily unwell for a period & claiming UC. He then worked just one day for an agency (with a contract and payslip) and he got injured at work, so was signed off sick by the GP. He was then temporarily unwell again recovering from the injury, and is now back seeking work. We’re trying to get UC for him.

Elliot’s instinct is I think correct.


1. If client had worked for more than a year, been temporarily ill and then got better and started work search then following KH v Bury one would say he would retain worker status indefinitely.

2. How can it be that a client who has actually done more work (by working that extra day) then has less rights to retain status? That would seem to go against basic principles of idea that more work gets more rights? It would also seem that such a client was in a position where they had a disincentive to take work (as if they worked on second occasion for less than a year they would end up with less rights).

3. I think the counter-intuitive things in (2) don’t in fact arise as they indicate this is not the right way to read article 7(3)(b) and (c) of the directive.

4. Article 7(3)(b) refers to retention of worker status by someone who has worked over a year.  A person who works over a year, is then sick for 9 months and then works for less than a year….. is still a person who has worked for over a year. The fact the most recent work was for less than a year does not change that.

5. To have the opposite interpretation results in the anomalies at (2) above and also involves reading article 7(3)(b) in a restrictive way (which is not what one does with fundamental EU law rights).

So I think this client will retain status whilst unemployed and on UC for longer than 6 months. In summary there is a case to argue that a person who has worked for over a year, retained status under article 7(3) and then done a period of work of less than a year before again becoming unemployed and needing to retain status falls within article 7(3)(b) and not (c).

[ Edited: 1 Oct 2020 at 10:35 am by Martin Williams ]
bristol_1
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Thanks all for your input - this is really helpful

bristol_1
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Expedited appeal hearing last week - Judge decided client has a right to reside through retained worker status.
Cheers all!