I have an EU 16 client who is getting JSA as she was previously working... she is pregnant with baby due in Feb.... she is not allowed to claim Income Support and will loose her right to claim HB (and then get evicted) if she stops claiming JSA..... Question is .... can she be forced to stop claiming JSA during late pregnancy and birth ?

trying to prevent her getting into rent arrears

She should be able to claim income support instead, once her EDC is 11 weeks away (p.13 DRH 33rd edition).

Paul

Surely by claiming IS she will lose her right to reside as a workseeker. She has to keep claiming JSA.

As long as she shows that she is available for and actively seeking work then she should continue to be entitled to JSA - although is she claims MA she will be treated as unavailable.

David

You're completely correct David, thanks for pointing that out. Guilty of reading the o/p too quickly and not paying attention to the EU16 reference.

My client is an EEA national 8 months pregnant. She cannot claim IS, but I'm not certain that she can claim JSA. She is not on maternity leave and indeed has never worked in the UK.

I had a similar case with a pregnant EEA national early last year when I worked as a generalist adviser. As I understand it a pregnant woman is not allowed to work 4 weeks before EWC and two weeks after baby born. As I recall from my case last year the DWP concluded that as my client was not allowed to work she was not available for work and therefore could not claim JSA. Yet she could not claim IS otherwise she would lose RTR. I cannot now find that case to check the details and our response, was the DWP correct?

If the above is correct, then given that pregnant women who are UK nationals can claim IS due to incapacity because they cannot work during the 6 week period identified above, and given that EEA nationals do not lose RTR for periods they are temporarily of work due to incapacity, is it possible for pregnant EEA nationals to claim IS during the 6 week period that they may not be allowed to claim JSA?

Hi

For the benefit of my general ignorance, under what statutory provision is a pregnant woman not allowed to work for 6 weeks?

I cannot remember where I saw the rule re 6 weeks, hence my query. There is a short period of two weeks compulsory maternity leave.

Just to clarify re pregnancy and incapacity for work, the period is 6 weeks before EWC and 2 weeks after birth.

My understanding is that there is no bar on a pregnant woman continuing to work up to the birth, so long as it is safe for her to do so. But if the woman takes sick leave within 4 weeks of her EWC, this can trigger the beginning of her statutory maternity leave period regardless of when she wants it to begin.

The six week thing is to do with ifw - it's a benefit thing rather than an employment thing. A pregnant woman is treated as incapable of work (or having limited capability for work) and therefore does not have to satisfy the PCA (or the LCFW assessment) during the six weeks prior to her EWC and for two weeks afterwards.

Sue

According to CPAG Welfare Benefits and Tax Credits Handbook 2008/09 (Part 7, Chapter 61, section 6: ‘UK regulations deem a woman to be incapable for work for any period in which there would be a serious risk to her or the baby's health and, in all cases, for a period of six weeks prior to the expected week of childbirth and two weeks after the actual birth. In such cases, a woman can argue that she is temporarily incapable of work and thus retains worker status.’

However, commissioner's decision, CIS/731/2007, while accepting that a pregnant women who is otherwise incapable of work can retain the status of worker, held that a pregnant EEA national has to show that she was incapable of work due to illness rather than simply as a result of pregnancy. Which I think probably answers my question on incapacity and IS. See LAG publication, Employment Law – an advisers handbook 11.14, re compulsory maternity leave.

I have though found the case I dealt with last year. The DWP had argued that JSA could not be paid for the eight week period because not available for work. I did in fact succeed in convincing the DWP that client retained RTR during the whole of her pregnancy and therefore was entitled to JSA.

If a woman was actually in work and had to stop she'd be covered by EC Directive 92/85 which requires entitlement to adequate allowances.

... however in the context of this discussion, there is a decision that pregnancy is not an illness or an accident and therefore pregnant women cannot retain worker status for the 8 weeks on the grounds that they are incapacitated (CIS 4010/2006).

My question was in connection with being able claim JSA and a woman being able to assert the she was available for work right up to giving birth so the DWP could not refuse to pay her. Had visions of those hardy women working in the fields, dropping the kid there and then, and, after a brief interval, carrying on working.

Nevip -

What's to stop JSA issuing a decision about capacity and bringing the claim to an end? (I wonder if it would still be possible to argue for the two weeks on JSA while sick, tho?)

Sue

My view is that if a person makes a claim for JSA, asserts that she is capable of work and there is no obvious evidence to the contrary then the DWP must be able to point to some tangible evidence that she is not so capable. Being 9 months pregnant is not, of itself, such evidence.

But do they need evidence (other than a due date) if it isn't actual incapacity but "treated as" incapacity?

Hi Sue

I don' t think I've made myself very clear. My fault, not yours as I mistakenly used the word "capable" instead of the word "available" in my last post. I'm musing about a situation where there has been no claim for IS/ICB under the Incapacity for Work regime.

Just merely about a pregnant woman not on benefit who just wanders into a jobcentre one day and tries to make a claim for JSA and is told by the DWP that she cannot have JSA because in their view the fact that she is heavily pregnant means that she is not available for work because they do not think that she would be able to work because she is heavily pregnant. Excuse the tortured grammar.

Paul

It's most likely me. Long week. I don't think there would be an issue with availability. But she would have to be capable, as well as available, wouldn't she?

But thats exactly my point. The mere fact of pregnancy by itself does not mean she is not capable, particularly if she says she is. Long week! I'm going for a well earned pint. Well more than one actually but thats just between us (does anyone actually mean "one" when they say that?)! Enjoy your weekend.

The 6 + 2 week rule is a deeming provision and people don't have to take advantage of it. And look at Rachida Dati.

I doubt if many of our clients would have had the support (that is doubtless available to Rachida) to return to work so quickly, but then again her job does seem to be on the line!

ariadne2 - re "deeming provisions" - this would be a useful thing for me to be able to say confidently in a tribunal - can you elaborate or point me to something to read?

Not read all of the responses through so maybe this has been covered but even if she is EU national could she not claim I.S as being temporarily unfit for work for a few weeks at least immiediately before and after the pregnancy and still retain right to reside

Even if not could claim Sure Start maternity grant before stops JSA so would have some funds to allow her to be self sufficient for a short while if not entitled to anything else.

Could she not claim I.S as temporarily unfit for work for the few weeks before and after having the baby and still retain right to reside.

Also could claim Sure Start Maternity Grant before stops JSA which would give funds to be self sufficient for at least a short while if necessary.

The actual wording of the regulations is "shall be treated as incapable of work" (regulation 14 of the Social Security (Incapacity for Work) (general) regs) (those brackets have got out of hand).

"You don't "treat" somebody as incapable of work if they actually are. It is used routinely throughout the regulations for people in certain categories who are automatically treated this way without the need to look at whether they actually are or not. So if you have evidence that they are in one of the categories, they might in fact be fighting fit and wanting to go to work, but you don't need to prove anything about how well or ill or disabled they actually are. That is what a deeming provision means.

It's precisely the reverse of the provision that deems a person to be capable of work, whatever their actual state of health, if they do work which is not exempt.

... the bit I was particularly meaning was that people don't have to take advantage of the provision if they don't want to?

In other words that a woman in this position shall be "conclusively" deemed - I was starting to think about his. If you are conclusively deemed to be X then you stand no chance of arguing that you are not, even if it is totally outrageous that you are not. But isn't that exactly what the presumption of capability for work if you do non-exempt work does?
The CD referred to somewhere along this thread is quoted as saying that it doesn't apply to give people retained worker status without proof of actual incapacity, which is saying in effect that the deeming is NOT conclusive. But that isn't in the law as worded.

Hi...I'm the Nick who started this, and I thank you all for your responses. The staff at the job centre have now stopped her JSA and advised her to claim Income Support.... knowing that she can't get it... (its a training issue) I've initially requested that she be "deemed" fit for work just to see what they do !

Meanwhile, because she is now homeless I've refered her to Social Services under the Childrens Act