Right to reside and temporary incapacity for work

I have a client with a Swedish passport who has been refused ESA as he has been held to not have a right to reside. Not seen the extended reasons, the reasons he was given with the decision were very brief, along the lines of because he is not a worker and has not worked for 5 years in the past he cannot get ESA.

Client came to the UK in December 2006. DWP have records of him having worked between 01/09/12 and 07/12/12. He was then on SSP up until 28/03/2013 when he moved onto ESA. Since claiming ESA he has always been treated as having a right to reside as he is temporarily unable to work due to illness.

In terms of his ESA claims client has always been on assessment phase or appeal rate. He attended a tribunal in summer 2014 where he was found fit for work but as it was more than 6 months since the last claim (and as his doctor continued to provide medical certificates) he was able to make a new claim for ESA.

The question I wanted to ask was whether there is any case-law on what constitutes incapacity for work. My expectation is that the DWP will argue that a tribunal has found that he was capable of work for the purposes of the WCA and that this brings his retained worker status to an end. However client has always had sick notes from his GP. Is the question of incapacity in terms of RtR one of fact , which could potentially involve a different threshold of incapacity to that used in the WCA, or can the DWP argue that this issue has already been considered by a tribunal?

Fortunately, client has school age children that are not mentioned in the decision reasons and I am 99% certain that he should be able to get a derived RtR, but I thought it is an interesting query and want to cover all of my bases.

See para 22 of this decision

http://www.ait.gov.uk/Public/Upload/j2328/00447_ukut_iac_2010_fmb_uganda.doc

There is nothing material that hinges on any distinction between being incapable of work or unable to work.

My view (I may be wrong) is that this decision trumps any incapacity to work determination, including the one from the tribunal, as it purely relates to R2R and not whether the person is capable or incapable of work.

There is a huge amount of case law, on what constitutes incapacity to work, you may want to be more specific on the nature of the client’s illness?

chacha - 12 March 2015 11:35 AM

See para 22 of this decision

http://www.ait.gov.uk/Public/Upload/j2328/00447_ukut_iac_2010_fmb_uganda.doc

There is nothing material that hinges on any distinction between being incapable of work or unable to work.

My view (I may be wrong) is that this decision trumps any incapacity to work determination, including the one from the tribunal, as it purely relates to R2R and not whether the person is capable or incapable of work.

There is a huge amount of case law, on what constitutes incapacity to work, you may want to be more specific on the nature of the client’s illness?

Hi thanks for responding - could you explain a bit more?

Have had a quick read of that decision and it seems to relate to differentiating between temporary and permanent incapacity for work - near the end of the decision it states that it was an agreed fact that the appellant was incapable of work?

Client has back pain. Is there any mileage in the argument that as he is incapable of doing the physical work he was doing he should be treated as temporarily incapacitated even though there is probably more sedentary work he could perhaps do (practically this is very difficult due to the client’s very poor English)?

Hi Sam W,

I’m saying that, though the client may fail the incapacity test for ESA, there is an altogether different test for R2R and keeping “worker” status. He may be capable of doing other work but there is mileage in the argument that, for R2R purposes, he is unable to continue doing what he used to, so keeps his R2R temporarily, until the situation changes or permanently. The tribunal finding him fit for work, does not equate to him losing his worker status, in my view.