Forum Home → Discussion → Work capability issues and ESA → Thread
Right of Residence (ESA/JSA)
I have a client with mental health problems who failed the ESA ‘right of residence’ test, despite living in the UK for 17 years, having moved here from Greece. The situation is that he has never worked and has claimed Income Support or JSA since he arrived in the UK in 1994. In early 2010, he failed to attend a medical assessment, so his Income Support stopped. Approximately, 3-4 months later he made a new claim for ESA and failed the WCA and was refused based on the ‘right of residence’ rules (as he was not a jobseeker/student/worker etc.). We appealed the decision and will be attending the tribunal hearing in January.
As he had failed the ‘right of residence’ test, he was not paid the basic rate of ESA while appealing, so he was forced to claim JSA in March 2011. In addition to this, he has accrued several thousand pounds of rent and council tax arrears and is facing a court hearing to evict him from his home in January as well. This is because Housing/Council Tax Benefit followed the DWP decision and did not award him benefit on the ‘right of residence’ rule until he claimed JSA. Although the client has mental health problems, he has coped reasonably well with his jobseeking activities since claiming JSA and as his housing and council tax benefit is also being paid, this has also eased the pressure.
As it is borderline whether he would pass the WCA on appeal anyway and even if he did, would probably still not pass the ‘right of residence’ test, I am considering submitting that he should have been treated as a jobseeker at the time of his ESA claim, as he failed the WCA (and therefore meets the JSA ‘right of residence’ test under the JSA Regs.).
This would mean changing my argument from that made on the appeal (that he had an unlimited capability for work). However, having sought advice from various sources, I don’t think I can overturn the ESA ‘right of residence’ decision, so feel that asking them to allow JSA from the time of the ESA claim is the only option. But if so, would the fact that he did not make a claim for JSA be used against him or would he be treated as a ‘jobseeker’ anyway, due to failing the ESA assessment?
The main problem for the client is the eviction situation and it is very likely that his mental health will deteriorate significantly if he is evicted. However, if we can argue that JSA should have been paid when he claimed ESA, I think the HB/CTB payment will follow and his rent/council tax arrears will be reduced if not fully covered.
Any advice you can offer would be much appreciated.
Dave