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IS - permanent R2R
EEA national worked full time from 21.10.09 - 10.04.14. Gave up work due to post natal depression.
Claimed Income Support from 11.04.14 which was refused due to R2R.
In receipt of JSA from 01.07.14 - 10.11.14
Claimed Income Support again on 29.09.14 which was refused due to R2R
We appealed both IS decisions which went to Tribunal. The judge allowed the first appeal on the basis the claimant retains worker status as she was temporarily incapable of work due to illness from 11.04.14 - 30.06.14. However, the judge refused the 2nd appeal on the basis she ceased to have a right to reside for IS when she claimed JSA on 01.07.14.
At the time of the claim made on 29.09.14 my client did not have a permanent R2R. However, she did at the time of the decision (31.10.14):
Worker 21.10.09 - 10.04.14
Temporarily incapable of work 11.04.14 - 30.06.14
Job Seeker 01.07.14 - 10.11.14
My question is, should the judge have considered the client’s permanent R2R at the date of decision as well as the date the claim was made? Any other thoughts are welcome.
Thanks
Allan
My question is, should the judge have considered the client’s permanent R2R at the date of decision as well as the date the claim was made? Any other thoughts are welcome.
Yes, he should have, it’s an error of law (Considering the length of time you have stated is fact). BUT, did the judge not consider it? If not why not? Also is the EEA an A8 or A2 citizen?
However, the judge refused the 2nd appeal on the basis she ceased to have a right to reside for IS when she claimed JSA on 01.07.14.
Is this because she was well enough to go back to work from 01/07/15 or because of the I/S refusal? OR is this because she claimed JSA?
Have you got a statement of reasons?
Depending on the date of the birth of her child, she may be able to take advantage of the Saint Prix case, which establishes that women who were working and who give birth retain worker status for a “reasonable period” - current DWP guidance sets time scales of 11 weeks prior to birth and 15 weeks after, but we’re awaiting on a UT decision as to whether such a restrictive interpretation is correct.
It’s also fairly commonly accepted that someone can retain worker status and move between the different strands of the relevant provision, and as she was someone who has worked for more than one year, she can retain worker status for up to 6 months before needing to provide “compelling evidence” - this would easily take her into the 5 year period necessary for PRR as well.
As chacha notes also, whilst sec.12(8)(b) of SSA 1998 does state that a tribunal shall not take into account any circumstances not obtaining at the time of the decision, it’s also clearly established that this does not prevent them having regard to evidence that was not before the SoS and came into existence after the decision was made, or to evidence of events after the decision under appeal (see. p.237 et seq of Sweet and Maxwell vol.3 2014/15).
My question is, should the judge have considered the client’s permanent R2R at the date of decision as well as the date the claim was made? Any other thoughts are welcome.
Yes, he should have, it’s an error of law (Considering the length of time you have stated is fact). BUT, did the judge not consider it? If not why not? Also is the EEA an A8 or A2 citizen?
However, the judge refused the 2nd appeal on the basis she ceased to have a right to reside for IS when she claimed JSA on 01.07.14.
Is this because she was well enough to go back to work from 01/07/15 or because of the I/S refusal? OR is this because she claimed JSA?
Have you got a statement of reasons?
Client is an A8 national (Polish). This was my case but I could not attend the hearing due to being on holiday. I’ve just noticed that the judge has only treated the client as a worker from 21.12.09 when her worker’s registration certificate started. However, it’s my understanding she is a worker from her employment start date (21.10.09) due to the TG v SSWP (PC) [2015] UKUT (AAC) case. Is this another error in law or have I missed something? This may confirm why the judge did not consider permanent R2R at the time of the decision as it was less than 5 years.
She claimed JSA due to IS refusal, she was still unwell.
SOR requested.
Many thanks
[ Edited: 7 Aug 2015 at 12:18 pm by Allan Ramsay ]Depending on the date of the birth of her child, she may be able to take advantage of the Saint Prix case, which establishes that women who were working and who give birth retain worker status for a “reasonable period” - current DWP guidance sets time scales of 11 weeks prior to birth and 15 weeks after, but we’re awaiting on a UT decision as to whether such a restrictive interpretation is correct.
It’s also fairly commonly accepted that someone can retain worker status and move between the different strands of the relevant provision, and as she was someone who has worked for more than one year, she can retain worker status for up to 6 months before needing to provide “compelling evidence” - this would easily take her into the 5 year period necessary for PRR as well.
As chacha notes also, whilst sec.12(8)(b) of SSA 1998 does state that a tribunal shall not take into account any circumstances not obtaining at the time of the decision, it’s also clearly established that this does not prevent them having regard to evidence that was not before the SoS and came into existence after the decision was made, or to evidence of events after the decision under appeal (see. p.237 et seq of Sweet and Maxwell vol.3 2014/15).
The Saint Prix case failed as the client gave birth on 08.08.13 and did not cease employment until 09.04.14.
Thank you for the help with the regs, this is very helpful.
I think the judge was just plain wrong when s/he decided that your client did not retain worker’s status in moving from the IS on grounds of illness to JSA. There is established case law on this: first she could not work because of illness and then she was involuntarily unemployed and there was no gap. So she has had five years’ worker’s status.? Ruth