R2R query

Hi Dan

No he’s not.  There is case law on this about the length of the gap but, as you know, each case will turn on its own facts.  I can’t remember the references at the moment but I’ll do some digging.

nevip - 30 May 2014 02:53 PM

Hi Dan

No he’s not.  There is case law on this about the length of the gap but, as you know, each case will turn on its own facts.  I can’t remember the references at the moment but I’ll do some digging.

Thanks Paul

Have a look at this.  Scroll down to the sub-heading “gaps”

http://www.gardencourtchambers.co.uk/imageUpload/File/Worker Status.pdf

nevip - 30 May 2014 03:26 PM

Have a look at this.  Scroll down to the sub-heading “gaps”

http://www.gardencourtchambers.co.uk/imageUpload/File/Worker Status.pdf

Yerra Gent!

I’ve attached the case.

Is that not discussing a different situation though - a gap between end of employment and start of a Jobseekers Claim - the Judge’s conclusion appears to be that this is not fatal provided the claimant remains in the ‘labour market’. I imagine that the DWP’s argument was that their expectation of somebody seeking work would be that they had signed on at the Jobcentre.

In the OP the situation is a gap between end of employment and the start of an ESA claim. In that situation the gap is more easily explained - for example the claimant is in hospital and in no fit state to make a benefit claim.

In my view the client in the OP only needs to show in fact that they were involuntarily unemployed, unable to work or look for work due to illness and that the latter situation is temporary and not permanent. The situation you describe should fit this (provided the client’s prospects of eventually returning to work are good). I think that if you send evidence of the circumstances of the dismissal and of the client’s time in hospital you should be OK - I think the DWP decision making in this area is pretty negative and if they do not have really strong evidence in front of them they are very unwilling to ‘read between the lines’ of the reality of a situation.

I had a very similar case at Tribunal yesterday (although a little more complicated in terms of evidence) and it seemed that the judge was following this approach. Decision is being sent in the post - will provide update.

**edit** it may also be worth double checking that the ESA claim was backdated if it was made straight away when he left hospital - if not and he was in for less than 3 months I don’t see why you can’t make a retrospective request for backdating which would fill in any gap that is causing the DWP difficulty re RtR.

That case is distinguished but that’s not the point.  The OP suggests that the DM decided that the claimant lost worker status precisely because there was a gap between loss of employment and a claim for benefit.  My point is that that is wrong as a matter of law.  You don’t have to be dismissed to be involuntaily unemployed either.

nevip - 02 June 2014 10:27 AM

  The OP suggests that the DM decided that the claimant lost worker status precisely because there was a gap between loss of employment and a claim for benefit.  My point is that that is wrong as a matter of law.  .

That’s exactly it.

I didn’t say above but the gap was a couple of months.

Update as promised - client’s appeal eventually successful after a fairly lengthy hearing.

I think the point I was trying to make was that in my case at least the DWP decision was not saying that the gap between the end of work and the ESA claim was fatal in itself, but that the gap represented a period when they had no evidence that client was not fit to work and in the absence of this evidence they were assuming that he was fit to work. In my case the way the initial decision was worded was very similar to the one in the OP (no RtR due to gap between end of work and claim) and it was only when the MR was carried out that the DWP’s argument became clearer. In the end it had to go to tribunal as client was unable to provide any written evidence of him not being well enough to work as after being dismissed he isolated himself for a couple of months and did not engage with health services until being admitted to hospital. In the absence of any written evidence DWP were unwilling to give him the benefit of the doubt.

Hi Sam

Did the tribunal give any indication why it decided he had retained worker status?

Reasons are as follows:

Mr X was a worker with [employer] for almost 3 years until 25.03.11. He worked at least 45 hours per week. During that period he was a “Worker” within the meaning of the Immigration (EEA) Regs

Mr X has [mental health condition]. As a consequence of his mental health condition he temporarily became unable to work on 25.03.11. He did retain his status as a Worker because his condition is temporary and not permanent and the medical evidence before the tribunal judge satisfied her that with proper management he will be able to return to work. Mr X was temporarily incapable of work when he applied for ESA. It was his health which caused his lack of capability for work and not any actions of his former employer.

Because he retained his worker status within the meaning of the 2006 regulations he therefore had a right to reside for the purpose of his ESA application.

Edit: client made his claim for ESA on 21.08.2011 so a gap of c.5 months

In the decision attached by Nevip above CIS/591/2007 is cited.

It’s not available on the UT website so here it is