SSWP v Elmi - transcript now available

Hullo,

The SSWP lost his appeal to the Court of Appeal against the 3 judge panel decision of the Upper Tribunal in SSWP v FE [2009] UKUT 287.

The judgment in SSWP v Elmi [2011] EWCA Civ 1403 is available here: http://www.bailii.org/ew/cases/EWCA/Civ/2011/1403.html

The decision confirms once and for all that a claimant who has been a worker or who is retaining worker status on some basis and who then claims IS rather than ibJSA but indicates that they are looking for work on the HRT2 stencil or similar, and is accepted as so doing, will have a right to reside under Article 7(3)(c) (or (b)) of Directive 2004/38 - eg it decides that such a person has registered themsleves at the relevant employment office and is duly recorded as involuntarily unemployed.

CPAG understand that until now the DWP have either (1) ignored the Upper Tribunal decision despite the fact that it was binding on them or (2) asked for similar cases to be stayed pending the decision in Elmi.

I would be interested in hearing from those with similar appeals and for information on what the DWP decision makers are now doing about them.

All the best.

Martin Williams

Personally I would not advise a claimant to claim IS if they want an easy ride.

However, I think as a matter of law they can claim IS and insist that they are doing what is needful to meet Art 7(3)(b) or (c) provided they say clearly they are looking for work and want to be registered as such etc.

I think it would be dangerous to advise people to act this way; this however is a very welcome decision for those who were positively discouraged from claiming JSA - predominantly as we all know young EU national women who find themselves pregnant or have a small child. And it will very much depend on the precise facts of each case, for example whether there is good evidence (which can of course be oral) that the the claimant made it clear she wanted to look for work.

I think as hbinfopb and Ariadne pointed out, it all boils down to the activity of the individual. If you are actively looking for work, the possibility of being engaged in said employment is real and this is evidenced, shown, documented, then it really does not matter what benefit you have claimed. You have a right to reside as a work seeker[I.E retained “worker” status]. Why it had to go to these lenghts, FT, UT then CA,  is beyond me, but then what do I know. Hopefully, it ends there, as stated in the decision even if the SoS wanted to change/amend legislation,  the pupose of the directive is clear.

My client was disallowed IS in Sept 09.  First Tier tribunal was in May 10.  I won this case using Elmi as caselaw.  SSWP appealed and Upper Tribunal gave permission to appeal.  Judge decided that an oral hearing would be appropriate.  However, our appeal was sisted pending the Elmi case going to the Court of Appeal.  Heard, yesterday, that SSWP lawyer has withdrawn following the Elmi dismissal.  Words used - “It is therefore submitted that the claimant had a right to reside in this case.  I submit that the claimant has taken sufficient steps to conserve her status as a worker”.  I presume that guidance on this will appear on the DMG.

now that hb is not payable if jsa is in paymnet for many an IS claim is the only option

HB is only not payable for EEA nationals if their only right to reside is as a jobseeker (was before the amendments in any case but ibJSA passported through ...) - if they are getting ibJSA on another basis (eg as someone who retains worker status), they are still passported. In Elmi type cases, the claimant will be someone who retains worker status anyway and so is exempted from the HRT in any case (reg 10(3B)(c) HB Regs).

I have a batch of mainly Latvian clients who are single mothers with very young children, less than 2 months in on case, they have claimed IS and been refused and have not actually worked for months but lived on tax credits and CB, some get HB at present. I suspect that if they claim jsa HB will stop as they have no other grounds for jsa, Elmi sounds very good but with tiny children I don’t think IS will be convinced about their looking for and being available for work————————any ideas ?