This thread is related to this one:

http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=103&topic_id=6401#6418


My client's appeal is tomorrow and I desperately need to know what the average wait time was for the issue of a WRS certificate around summer 2007.

I know this is a big ask, but does anyone have any examples you can post or email to me? The WR team says that since my client's (crucial) application was undated, they have assumed it was recieved 7 days before the date of issue of the WR certificate.

On this basis, the appeal will fail. If, however, we can demonstrate a wait time of 10 days or more, then the appeal will (I'm sure...) succeed.

If anyone out there has assisted an applicant around this time, or have applied yourself perhaps and you have any examples of wait times, please get in touch.

Thank you so much

Also, does anyone know the primary legislation giving rise to the Accession (IW etc) regs?

Found answer to the later - it's the European Union (Accessions) Act 2003.

Tony,
I don't understand...how can the WR team not know when an application was received?
They must know.
The fact is was undated doesn't have any bearing on their admin activities on receipt of mail, surely.

John

I've clarified this now. The WR team have the date the application is logged in thier payment centre and assume it was made 7 days before that day. Apparently, they do not date stamp incoming mail or otherwise log it until it gets to the payment centre. 7-days seems reasonable to me in teh circumstances and I'm searching for other ideas...

But the more I look into this the unhappier I am with the registration regs...

The DWP say that if an application to WRS is not made within a month of starting work the start date of authorised work is the date of issue of the WR certificate. I cannot find anything, anywhere, to substantiate this. The DWP quote reg 7(2)(b) Accession (IWR) Regs 2004 in support but each of the four groups in reg 7(2) are quite specific and not cumulative. 7(2)(b) allows a person to be treated as in authorised work where an application was made within one month and has not yet been decided.

Reg 8 deals with the manner in which applications should be made and no time limit is specified.

I think I'm going to argue that all of the work is properly registered regardless of when the certificate was issued or when the application was made. The fact that the certificate was issued, and in the absence of any legislative method of determining the date from which the employer is so authorised, suggests that the employer is authorised for the whole of the time the client worked there.

Any ideas...???

How exactly do the dates fall in this case, ie when did he start work, when was the certificate issued, when di he finish work?

Sorry, didn't read related post properly

Can Reg 7(3) help? It seems to me that this means the first month of any job is always legal so that if the gaps between the end of that month and the issue of the certificate are 30 days or less in aggregate then the worker gets through the requirements of reg 2(8).

The first month is legal if the workers WR application is received at the WRS within a month of starting the job. After that it doesn't matter how long it takes for them to issue the certificate, because it will run from the job start date.

That's why I cannot believe the WRS do not date stamp receipt of applications; they must have a requirement to do so, otherwise how can they apply the month ruling!

I had a case recently for a Slovakian person where I emailed WRS for the date of receipt of the application, and they were able to provide it; it proved she was 5 days inside the month time limit. Her appeal against refusal of JSA was successful on that fact alone.

John

I think the first month is legal even if you never send in a WRS form under a seperate paragraph. This is in reg 7(3) and has no registration condition. The bit about sending in the form within a month is in 7(2) and seperately deals with when it would be legal through being registered.

It is possible to read the regulations to say that if the application is made after the month, there is no possibility of the work for that employer being legal at all. The definition of an authorised employer, for people who were not already lawfully working in May 2004, includes the need for the application to be made within a month.

I imagine that the apparent easement, of granting legitimacy from the date of issue if the application is late, is UK Boarders Agency practice, becasue if they were interpreting the regs literally then they would simply refuse late applications (they may have had advice on proportionality here: such a response would be wholly disproportionate). Presumably the certificate states the start date on it? In that case I don't think that DWP are to blame for following the UKBA rules.

Fri 09-Jan-09 04:45 PM by Tony Bowman

Thanks for all replies so far.

I attended the appeal yesterday and, unsurprisingly, the decision was upheld. But I remain unconvinced and we're seeking a SoR.

To help put it in a better context, the relevant facts are as follows:

client had two jobs. The first was registered for a few months and ended about six weeks after the start of the second job. Client applied for her WRC 32 days after the first job ended, so there was a gap of more than 30 days where she was in unregistered work.

During those six weeks of overlap with the two jobs, there was no requirement to register the second job as client was covered by reg 2(7)(b)

a person...is legally working during any period in which he is working...for an authorised employer.

This muddies the waters about when she should have applied for registration for the second job. Given the above, she was not, in my opinion, required to register job two for the six weeks during which she was employed in both jobs.

I agree with Damian about reg 7(3), but this doesn't help because client was covered by 2(7)(b).

Reg 7(2)(b) extends the original one month where a client has applied for a WRC within a month of starting work but has not received a decision on the application. The way that I'm interpreting 7(2)(b), it does not, as I stated above, provide that an application to the scheme must be made within one month. The tribunal rejected this.

I also agree with John Wilson, though i think the context was slightly different, that once a certificate is issued is covers the whole of the employment (if this is the case, my client would be covered from an earlier period of employment that lasted over two years, but was only registered for about six months). The tribunal rejected this also.

The problem here is that the gap between the end of the first registered job, and the date of application for the second was more than 30 days (it was 32) apart so reg 2(8), the 'linking' rules, does not apply.

It would be nice for the drafter to have forseen the situation where a person could be in more than one job at a time but since the law does not recognise the situation, then I think all we can argue is that reg 7(3) should be interpreted in this way:

where a person isworking for an unauthorised employer, and has no other authorised work, that employer is an authorised employer in relation to that work for a period not exceeding one month from either the start of the employment or the last period of authorised work.

This interpretation would assist my client because it would recognise that she is unfairly disadvantaged by having two employments, and would bring her within the linking rules (the first month being covered by my reinterpreted 7(3) and the remaining 2 days being covered by 2(8).

I didn't put this to the tribunal because I only thought of it last night, but somehow I think I might be hoping for a little too much...

Have a nice weekend all,