Income Support - Failed Right to Reside

My client is a Polish national who came to the UK on 01/12/2008 seeking work and has worked from 01/02/2009 to 03/03/2011.  She had to leave work due to having a baby and has since not been able to return to work.  She is a single parent, thus made a claim for Income Support, which has been declined on the grounds that she does not meet the right to reside test and as such needs to be claiming JSA as a work seeker.  It will prove difficult for my client to work as she has no childcare provisions nor would she be able to finance childcare.

What options and grounds, if any, could my client rely on to appeal this decision?

Thank you in advance.

I have understood that she has not been here legally for five years, so she has no permanent RTR.

In this case, if her work was legal, genuine and effective, she should be entitled to IS or SMP/MA for the period one would receive SMP/MA. I think I can find some Commissioners decisions for you, but you need to check the dates of this case (birth etc.) and compare them with the statutory dates.

After this period, she is supposed to go back to work (or sign on) or she would be considered economically inactive and lose her RTR.

The best thing to do is to claim JSA whilst the appeal against the IS is pending.

In terms of claiming JSA then client can limit her availability for work in light of her caring responsibilities (so long as she is avaiable for at least 16 hours a week and for so long as her caring responsibilities allow).

The JS case details are here: http://www.cpag.org.uk/content/js-v-secretary-state-work-and-pensions

Whilst the JS case may assist her ultimately, it may well be the case that she has an arguable right to reside even without that case succeeding, also there are some additional potential hurdles she may have to overcome:

WAYS TO GET BENEFIT NOT DEPENDENT ON JS:

1. Who is the father or her child? If he is a non British EEA national, does he have a right to reside as at date her IS was refused? If he does then the child has a right of residence and client can argue that she must have such a right as his primary carer.

2. Is client married (even if separated) if she is and husband has a right of residence then so too does client as his family member (simillar with civil partnership for same sex couples who have separated).

ADDITIONAL HURDLES:

3. Even if client does end up dependent on the JS case, her circumstances will be different if she has never registered her work (JS is not an A8 national etc). We are also arguing that the Worker Registration Scheme was unlawful for its final two years (although we think it was unlawful before that too the Courts have thus far disagreed…). See point 2 of this case here: http://www.cpag.org.uk/content/ce9782011-polish-national-lawfulness-2009-extension-wrs-proportionality-wrs

Hope that helps.

Martin

What about the decisions in Secretary of State for Work and Pension v Elmi [2011] EWCA Civ 1403 and CIS/184/2008?

If she ticked the box in the HRT form that she was looking for work (for less then 16 h per weeks) when she claimed IS, she should be considered ‘jobseeker’ and should be entitled to IS.

Josephina- Whilst I would like it to be different, it is not at all clear that Elmi can be applied to a person who is not in fact available for work during a period when she is on maternity leave.

The condition for retaining status, in Article 7(3)(b) or (c) is that the person is involuntarily unemployed. That condition was met by Ms Elmi (she was in fact looking for work etc). The problem for a woman not looking for work due to maternity is that it is harder to say that she is involuntarily unemployed at that time.

I disagree with the proposition that this claimant can unproblematically be entitled to IS during her maternity period in the way you suggest (sorry).

I would also add that if client was advised by the contact centre/her local JC to claim IS rather than JSA she submits both a backdate request and a compensation request to cover financial loss (gap between IS claim-JSA going into payment) in tandem with everything else.

Just to be clear (think my last post was un-necessarily negative!)- she might be alright with an Elmi type argument but she would need to show in addition to having said she was looking for work etc that she was in fact looking for work.