EU work seekers, IB JSA and HB from 1st April

I had been under the impression that the HB changes for EU nationals on 1st April were only going to affect new EU nationals.  However the rightsnet news story yesterday with the new regs appears to suggest that all EU work seekers claiming income based JSA that make a new claim for Housing Benefit after 31st March will no longer be entitled to HB unless they have a right to reside other than as a work seeker. 

I work for an organisation who manage homeless hostels, supported housing, has a PRS scheme, outreach services and also advises clients on the various contracts we have with not for profit organisations and this will impact hugely on our EU clients.

Have I got the wrong end of the stick?

That is right yes.  There is no way this could have been restricted to Romanians/Bulgarians because the labour market restrictions for those countries lapsed on 1/1/14 - they are now entitled to full equal treatment in the job market.

The justification for this measure dates back to a European Court case - Collins (and more recently the same conclusions appear in Vatsouras): Europeans must have the same rights as host state nationals to gain access to the job market, including financial assistance targeted specifically at work seekers, but until they have actually become established as a worker with a job they do not have equal rights to wider social advantages.  Appeals will turn on whether HB paid in association with JSA is a financial benefit intended to facilitate access to the job market. DWP’s view obviously is that they remain separate benefits paid for separate purposes.

Thanks for your reply.

Sorry, I realise I wasn’t very clear about what I meant by new EU nationals, I was thinking of new arrivals from EU countries rather than Bulgaria and Romanian nationals as with the new JSA rules from January 2014 where they could not claim IB JSA for first 3 months in country.

It’s new entrants to the job market: that could be people who have arrived recently in the UK to seek work, or it could be people entering the job market after previously residing here in some other capacity (eg self-employment or being someone’s family member).  The biggest risk is decision makers failing to distinguish them from former workers who retain their status while unemployed.

I agree it’s confirming the retained worker status that will be critical.

We deal with many homeless families who are EEA nationals who have never worked, not married, but with children under school age.

If the only R2R is JSA then these families were never allowed Council accommodation or assistance from homeless departments. We got round this by assisting them with private rented, especially the victims of domestic violence.

Looks like we can’t do this any more.

The explanatory memorandum to the new regulations sets out that current income based JSA claimants also in receipt of HB could be affected from 1 April 2014 if their JSA ceases or they make a new claim for HB -

“7.1 From 1st April 2014, an EEA jobseeker who is entitled to income-based JSA will no
longer satisfy the HRT for HB, thus removing their access to HB. The HB regulations are
amended so that only EEA nationals who are receiving JSA because they have a right to
reside other than as a jobseeker or as a family member of a jobseeker will continue to have
a right to reside for HB (for example, where they retain worker status).

7.2 EEA jobseekers who are in receipt of both income-based JSA and HB on 31st
March 2014 will be unaffected by the change until their JSA claim ceases, or they make a
new claim for HB, whichever occurs first. This will include a claimant who moves to a
new local authority.

7.3 EEA nationals who are working in the UK for an employer or as a self-employed
person or who retain their worker status during periods of unemployment or temporary
incapacity for work are not affected by this measure.

7.4 UK nationals and citizens of the Republic of Ireland will not be affected by this
measure.”

See http://www.legislation.gov.uk/uksi/2014/539/pdfs/uksiem_20140539_en.pdf

In the Brey Judgement this was handed down

Furthermore, the ECJ held that nothing in Regulation 883/2004, or in the Directive, prevented a member state from making entitlement to an SNCB conditional upon the claimant having a legal right to reside (see paragraphs [39], [42] and [44]).

Brey

44 The Court has consistently held that there is nothing to prevent, in principle, the granting of social security benefits to Union citizens who are not economically active being made conditional upon those citizens meeting the necessary requirements for obtaining a legal right of residence in the host Member State (see, to that effect, Case C?85/96 Martínez Sala [1998] ECR I?2691, paragraphs 61 to 63; Case C?184/99 Grzelczyk [2001] ECR I?6193, paragraphs 32 and 33; Case C?456/02 Trojani [2004] ECR I?7573, paragraphs 42 and 43; Case C?209/03 Bidar [2005] ECR I?2119, paragraph 37; and Case C?158/07 Förster [2008] ECR I?8507, paragraph 39).

They as I understand it do pass the R2R and do have entitlement to HB or do I have the wrong end of the stick?