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EU worker
Client applied for ESA end of August 2015 but failed R2R, he is due to attend an appeal hearing end of next week. Its always been a tricky appeal. The client has mental health difficulties and behavioural problems so gaining the info needed has been very difficult. I have struggled to evidence his work history and there is also a gap between work ending and claiming ESA.
In relation to the first issue of work history, I had been aware that the clients last employment had only been for 3 weeks but he had said that he had worked for another employer prior to this for a couple of months, myself and his support worker have been trying to get details of this work for months. I discovered today that the previous employment had been some months prior ending October 2014, it does not look like he claimed any benefits during that time and resorted to begging to get some money, so really his last employment was only for 3 weeks of full time employment in May 2015.
The client left his job end of May 2015 as his mental health had deteriorated and he was homeless. He was not registered with a GP until end of August 2015 after he suffered significant injuries from being attacked. The GP has written a letter stating that the client was likely to have had significant mental health difficulties during the gap period from end of employment and ESA claim (2 month gap) but was only able to issue a medical certificate from the end of August when he saw the client.
To me this appeal is looking very unlikely to be successful, I had been hoping to argue that on the balance of probabilities the client was temporarily incapacitated during that gap period based on the GP letter and clients evidence, and then with the physical injuries for the period from August, thereby retaining worker status. However discovering that there was only 3 weeks work prior to this is now making this weak appeal look even weaker. Is there anything I have missed?
Not really any help but I have a very similar case. In the case of my client the gap was longer- around 18 months. For part of the time he received JSA (with a series of stops & starts as due to his mental health issues he missed signing dates and also incurred a series of sanctions/disallowances) and for the remainder he ‘lunched out’ (he was street homeless for quite a time). As in your case, he wasn’t registered with a surgery during the period he was homeless. His current GP has expressed the opinion that client has been mentally ill for many years (he also has physical disabilities resulting from injuries sustained whilst on active service in his country of origin) but obviously couldn’t issue med cert to cover the whole of the period.
Client’s LA has accepted retained worker status and is paying HB but we’ve had to appeal ESA RTR refusal. Appeal was heard two weeks ago with Judge reserving judgement. Judge is evidently still considering the issues so watch this space. I shall be seeking leave to appeal if the appeal fails.
Is there anything I have missed?
The earlier employment period (the one ending October 2014) which you are finding difficult to evidence may have been sufficient for him to have aquired worker status.
If the earnings were at a level that he would have paid NICs, the DWP should have a record of this via its Customer Information System - such a record could (depending on what it revealed) establish he aquired worker status. So ask the tribunal that it direct the DWP to produce the record if it hasn’t done so already. Cite the Kerr principles (duty of parties to co-operate with the tribunal, where information would assist the apppellant DWP should provide this where it easier for it to supply the info than it would be for the appellant).
It is entirely conceivable that he also left that prior employment due to his health difficulties.
If so, he could have retained worker status due to temporary incapacity during the gap period. He doesn’t need to have claimed ESA for status to be retained - and whilst there is a problem in that you’re not going to be able to get medical evidence for that period if he wasn’t registered with a GP, it is only the case that the incapacity needed to have been temporary (as opposed to permanent) - the fact that it was temporary is then evidenced by his having returned to work in May 2015.
It is worth arguing these cases. I had a client a couple of years back who had drug problems and attendant mental/physical health issues, with various cash in hand work interspersed with bouts of sporadic paid employment. As past caring notes, DWP can obtain NI records which helps to demonstrate worker status in the past and FtT were (eventually, after two adjournments) content that my client had retained worker status and allowed his ESA claim accordingly.
As well as gaps in work and benefits claims, and under the counter work, this client’s memory of dates and so on was extremely patchy and on the face of it, I was slightly sceptical about his chances but he was consistently inconsistent, if you catch my drift, and with a submission sent with client to hearing, it all ended well in the end.