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Right to reside query - left work due to pregnancy
Client came to UK in 2011. Started work in 2012 and doing this up until December 2014 when she became pregnant with twins.
Initially she remained in employment but was off sick due to side effects - she tells us that her pregnancy was ‘high-risk’ and she felt sick. Client received her P45 in January 2015. It is not clear what happened - in our HB records client at one point stated that she tried to go back but was told there was no work but at other points she says that she still wasn’t well enough to go back and the P45 came out of the blue.
At this point her only income was CB and CTCs for an elder set of twins. She tells us that when her work ended she remained too unwell to look for work. She didn’t claim JSA. At some point it appears that she may have tried to apply for IS but this has not been confirmed.
On 24/07/15 the twins were born and the client started to receive Maternity Allowance from the same date.
Client did not look for work from this point as she was sole carer of 4 children now including 2 newborns. She was getting her MA and Tax Credits and Child Benefit for the elder 2 and was trying to get her HB sorted out. She had not been advised of the Right to Reside rules and the importance of seeking work asap.
My reading of situation is that client could potentially (if the medical evidence is supportive) argue that from the point she became ill to the date she gave birth she retained her RtR as a worker. However her difficulty will then be to show that the gap between the births and potentially her claiming Jobseekers (and now arguing that she is involuntarily unemployed) is not too big for her to lose her retained worker status.
If in fact she lost her job because there was no work I don’t think she retained her worker status as she did not sign on or look for work.
Client is in dire straits - Housing Benefit state she does not have a right to reside and she faces an eviction hearing next week. If client were to go to the Jobcentre and start signing on (continuing to receive the MA but looking for work) do people agree with my analysis that she has an arguable case that she retains her worker status?
Elder children are still in nursery and so this is not a route. Client and the fathers of the two sets of twins were not married. Father 1 has never been in UK. Father 2 is Senegalese with indefinite leave. The younger twins have British citizenship. We do not know of any other family in the UK.
If anybody has any other suggestions or input this would be greatly appreciated.
Have a nice weekend all.
Hi Sam,
Is she an EEA national? I’m assuming so but aware that my knowledge of right to reside is a bit shaky (tho growing every day given the current climate).
Presumably the big issue is the gap between her receiving her P45 in January and starting MA in July as without that gap she’d have retained worker status throughout and until at least the time her MA ends.
Her job ending out of the blue sounds like her employment wasn’t ended correctly although a lot there depends on how long she’d been in the job and what her contract of employment said, as well as what her actual pattern of work had been - and the reason her employer terminated the employment. And as she can’t have been very pregnant at the time she received her P45 it looks like she may have been discriminated against by her employer.
Although I’m not that au fait with employment law, I know that usually issues have to be raised within 3 months of the action taken against the employee but it might be worth looking to see if there’s any way of her taking action/getting advice now on that issue on the basis that that might restore her employee status in some way sufficient for her to regain the ‘lost’ right to reside. I’m thinking along the lines that if her employment had continued but she’d received statutory sick pay (and she may have been dismissed to avoid paying this) and then gone onto ESA on the basis of her sickness she would have retained her worker status until she gave birth.
Alternatively I’m not sure if there’s a way of getting backdated medical evidence to cover the period January - July and to retain worker status as a person unable to work temporarily due to ill-health without claiming a ‘wage-replacement’ benefit.
A worry I would have if it’s ultimately decided that she didn’t have a right to reside for that period is that she also wouldn’t have had entitlement to the other benefits she received during that period.
I hope this helps - feel like I’ve rambled a bit and may have totally missed the point!
How old are the other two children?
Edit - sorry, I missed last bit of your post so ignore this.
Client came to UK in 2011. Started work in 2012 and doing this up until December 2014 when she became pregnant with twins.
Initially she remained in employment but was off sick due to side effects - she tells us that her pregnancy was ‘high-risk’ and she felt sick. Client received her P45 in January 2015. It is not clear what happened - in our HB records client at one point stated that she tried to go back but was told there was no work but at other points she says that she still wasn’t well enough to go back and the P45 came out of the blue.
At this point her only income was CB and CTCs for an elder set of twins. She tells us that when her work ended she remained too unwell to look for work. She didn’t claim JSA. At some point it appears that she may have tried to apply for IS but this has not been confirmed.
On 24/07/15 the twins were born and the client started to receive Maternity Allowance from the same date.
Client did not look for work from this point as she was sole carer of 4 children now including 2 newborns. She was getting her MA and Tax Credits and Child Benefit for the elder 2 and was trying to get her HB sorted out. She had not been advised of the Right to Reside rules and the importance of seeking work asap.
My reading of situation is that client could potentially (if the medical evidence is supportive) argue that from the point she became ill to the date she gave birth she retained her RtR as a worker. However her difficulty will then be to show that the gap between the births and potentially her claiming Jobseekers (and now arguing that she is involuntarily unemployed) is not too big for her to lose her retained worker status.
If in fact she lost her job because there was no work I don’t think she retained her worker status as she did not sign on or look for work.
Client is in dire straits - Housing Benefit state she does not have a right to reside and she faces an eviction hearing next week. If client were to go to the Jobcentre and start signing on (continuing to receive the MA but looking for work) do people agree with my analysis that she has an arguable case that she retains her worker status?
Elder children are still in nursery and so this is not a route. Client and the fathers of the two sets of twins were not married. Father 1 has never been in UK. Father 2 is Senegalese with indefinite leave. The younger twins have British citizenship. We do not know of any other family in the UK.
If anybody has any other suggestions or input this would be greatly appreciated.
Have a nice weekend all.
Hopefully she can be assisted by the new judgment on the scope of Saint Prix rights? See the summary on rightsnet here: http://www.rightsnet.org.uk/welfare-rights/caselaw/item/retaining-worker-status-after-giving-up-work-or-work-seeking-due-to-pregna
I would have thought your case goes:
1. From when work ended up to when kids born then clearly she has a right of residence as temp. unable to work due to illness (a woman unable to work due to difficult pregnancy can retain status this way)- CIS/731/2007
2. Then she has a Saint-Prix right.
[ Edited: 22 Sep 2015 at 06:30 pm by Martin Williams ]Yes that is what we are hoping - I hadn’t realised Saint-Prix was so generous as regards the period after giving birth. Thanks all for the assistance!