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Claiming IS and JSA at the same time in Right to Reside cases?
It feels as though I’m asking something really obvious but I’m struggling to find a definite answer and so wondered if anyone can help.
Is it possible for someone to make a claim for both IS and JSA at the same time? I’ve often had situations where I think that an EU citizen should be entitled to IS based on having permant residence or a right to reside other than that of a workseeker, however I’m aware that it may take a while to establish this and they may have to go through the appeals process before this is accepted which would obviously leave them for quite a while without money. Therefore sometimes it feels better to advise them to claim JSA in the meantime which may be easier and get them money quicker. Plus if there is a question of whether they have a right to reside, at least they are registering as a workseeker in the mean time. However the thing I am unsure about is whether they can make a claim for both at the same time and then start getting JSA if they satisfy the jobseeking conditions, but keep the IS claim open whilst waiting for a decision. Or if someone made a claim for IS and then JSA, would the DWP only make a decision on their entitlement to IS up until they made the claim for JSA?
I guess what I’m looking for is a bit of advice on the process of claiming - I work on a helpline and so don’t actually see any claims being made and so a bit unsure about what happens in practice.
Thanks.
A person is entitled to Income Support if, among other things, he is not entitled to JSA. Even if the DWP’s computer software will allow both of these claims on the system at the same time, which I doubt, in my view, they will hold off on adjudicating the Income Support until the outcome of the JSA claim is known.
I’ve had clients who have been turned down for Income Support on right to reside grounds and have appealed. The DWP have fiercely resisted (unlawfully) all subsequent attempts to make JSA claims. This absolutely infuriates me, quoting legislation to call centre workers is pointless and promised call backs by decision makers never materialize. I, like most of us, have a few contacts within the DWP who I can turn to occasionally but I’ve long ago given up on the notion of the DWP as a service that exists to serve the public but to see it as a hindrance which regards claimants as a mere inconvenience who can be treated with contempt and indifference.
This is a tricky situation- made worse by the (possibly unlawful) delays suffered by EU claimants who await a decision from Wick as to right to reside for IS purposes.
I agree with Nevip that the DWP computer won’t be able to cope with claims for both.
However, in law, there is nothing to prevent a person making simultaneous claims for both benefits- unless and until one of those claims is determined then the prohibition about not being entitled to one if you are entitled to the other does not apply (a person is not entitled to a benefit until a decision is made awarding it to them).
So, it is legally possible to claim both. Claimant can even attach a cover note to both claim forms saying that both have been claimed and that in the event IS is awarded the claim for ibJSA is withdrawn. Claimant could also ask for ibJSA not to be determined unless or until IS is refused.
If the DWP do not allow this then I think that is unlawful.
However, for a claimant to embark on such a course of action unassisted by an adviser who is ready to take up the case and make credible threats of judicial review etc when the DWP say claimant can’t do this or that would be unwise.
My guess would be therefore that as a result of the poor administration of the right to reside test as it applies in IS there are therefore many 1000s of EU nationals claiming ibJSA and exposing themselves to sanction risk etc who would be entitled to IS but who never claim it because of the delays in getting a decision etc.
Thankfully, Universal Credit won’t have such a problem as far as I can see….
the only problem with that for me is that IS claim can take ages to be decided and, in mean time no HB etc.
also, as you say, won’t get anything for period of IS claim if appeal unsuccessful.
Thanks for your responses, that’s really useful. I guess my motivation for suggesting that they claim JSA first and foremost is that I would expect that it would be less complicated to be decided and therefore give them the best chance of getting some money soon. Also, by signing on they will prove that they have been satasfying the conditions during that time, in case ultimately they do not get awarded IS. Also, they can argue they are excersizing treaty rights as a workseeker during this time just in case they can’t establish it under another ground. However as Martin points out, this does seem to place the person in a more vulnerable position and I do think that where there does seem to be eligiblilty for IS that this should be fought for.
We have been advising callers to our helpline that they can still apply for HB directly whilst they are waiting for a decision to be made on their IS or JSA claim by DWP and ask the local authority to make their own decision about whether they have a right to reside, rather than waiting for a decision from DWP. However I have had a call recently where this happened and the council awarded HB, but once the DWP decided she did not have a right to reside (incorrectly, which she is appealing) they decided that she was not entitled after all and that she not only was no longer entitled but that she had been overpaid HB for the period it was awarded. When she asked them to make their own decision about her right to reside they said that the DWP’s decision bore more weight than theirs and that they couldn’t undermine it. This doesn’t sound correct to me, but I am unsure where to find in the regulaltions something about each department’s individual decision making powers.
the only problem with that for me is that IS claim can take ages to be decided and, in mean time no HB etc.
also, as you say, won’t get anything for period of IS claim if appeal unsuccessful.
That will be the case whichever option the client chooses.
But the bigger problem, is that the RTR will be done first on the IS claim, taking ages, and then again on the JSA claim, taking ages x2.
What a mess we’re in… It’s russian roulette v Dirty Harry
Tony- with the option I suggested, the aim was in not allowing the period of nil-entitlement to arise- if the claims are made simultaneously and the claimant signs on then all they suffer is the delay in getting IS rather than a period of no entitlement to either IS or ibJSA…
Thanks for your responses, that’s really useful. I guess my motivation for suggesting that they claim JSA first and foremost is that I would expect that it would be less complicated to be decided and therefore give them the best chance of getting some money soon. Also, by signing on they will prove that they have been satasfying the conditions during that time, in case ultimately they do not get awarded IS. Also, they can argue they are excersizing treaty rights as a workseeker during this time just in case they can’t establish it under another ground. However as Martin points out, this does seem to place the person in a more vulnerable position and I do think that where there does seem to be eligiblilty for IS that this should be fought for.
We have been advising callers to our helpline that they can still apply for HB directly whilst they are waiting for a decision to be made on their IS or JSA claim by DWP and ask the local authority to make their own decision about whether they have a right to reside, rather than waiting for a decision from DWP. However I have had a call recently where this happened and the council awarded HB, but once the DWP decided she did not have a right to reside (incorrectly, which she is appealing) they decided that she was not entitled after all and that she not only was no longer entitled but that she had been overpaid HB for the period it was awarded. When she asked them to make their own decision about her right to reside they said that the DWP’s decision bore more weight than theirs and that they couldn’t undermine it. This doesn’t sound correct to me, but I am unsure where to find in the regulaltions something about each department’s individual decision making powers.
Sarah, have a look at
London Borough of Hillingdon v MJ and another (HB) [2009] UKUT 151 (AAC); [2010] AACR 4
It is here:
http://www.administrativeappeals.tribunals.gov.uk/aspx/view.aspx?id=2742
The judge makes clear that:
a) If ibJSA, irESA, PC or IS awarded then the LA is bound to accept claimant not a person from abroad (Reg 10(3B)(k) HB Regs 2006 says as much).
b) The judge then considers what to do when those benefits refused as DWP holds client is a person from abroad. She explains she agrees with an earlier decision (which got some other bits wrong but she says this bit right). The bit she endorses is this:
“39. The DWP’s Housing Benefit Guidance Manual (paragraphs C7.500 to C7.505) tells local authorities that ‘[a] claimant who is receiving IS or JSA(IB) is not to be treated as a [person from abroad]’ and ‘it should normally be assumed that Jobcentre Plus has applied the appropriate tests’. If a local authority has evidence that a claimant may be a person from abroad, the local authority should confirm with Jobcentre Plus that the appropriate test has been applied. The Manual rightly does not say that a Jobcentre Plus decision is binding on a local authority, though the first phrase that I have quoted from it tends to give that impression. In my view, that would be to overstate the duty of the local authority; I do not consider that the local authority is precluded from disagreeing with such a decision. On the other hand, I do not consider that the local authority is obliged to decide the issue from scratch as though the Jobcentre Plus decision did not exist. Where the local authority is satisfied that a considered decision on the issue has been made by Jobcentre Plus, the local authority is entitled, in the absence of anything to compel a contrary conclusion, to regard the existence of that decision as satisfactory evidence that the claimant is not a person from abroad.”
So if you have alternative evidence or arguments then the LA should definitely come sort it out. If you don’t they can (but don’t have to) take account of what the JCP said. I doubt they are however aware of why the JCP decided the case as they did though.
[ Edited: 8 Nov 2012 at 08:08 pm by Martin Williams ]Thanks for your responses, that’s really useful. I guess my motivation for suggesting that they claim JSA first and foremost is that I would expect that it would be less complicated to be decided and therefore give them the best chance of getting some money soon. Also, by signing on they will prove that they have been satasfying the conditions during that time, in case ultimately they do not get awarded IS. Also, they can argue they are excersizing treaty rights as a workseeker during this time just in case they can’t establish it under another ground. However as Martin points out, this does seem to place the person in a more vulnerable position and I do think that where there does seem to be eligiblilty for IS that this should be fought for.
We have been advising callers to our helpline that they can still apply for HB directly whilst they are waiting for a decision to be made on their IS or JSA claim by DWP and ask the local authority to make their own decision about whether they have a right to reside, rather than waiting for a decision from DWP. However I have had a call recently where this happened and the council awarded HB, but once the DWP decided she did not have a right to reside (incorrectly, which she is appealing) they decided that she was not entitled after all and that she not only was no longer entitled but that she had been overpaid HB for the period it was awarded. When she asked them to make their own decision about her right to reside they said that the DWP’s decision bore more weight than theirs and that they couldn’t undermine it. This doesn’t sound correct to me, but I am unsure where to find in the regulaltions something about each department’s individual decision making powers.
Sarah, have a look at
London Borough of Hillingdon v MJ and another (HB) [2009] UKUT 151 (AAC); [2010] AACR 4It is here:
http://www.administrativeappeals.tribunals.gov.uk/aspx/view.aspx?id=2742
The judge makes clear that:
a) If ibJSA, irESA, PC or IS awarded then the LA is bound to accept claimant not a person from abroad (Reg 10(3B)(k) HB Regs 2006 says as much).b) The judge then considers what to do when those benefits refused as DWP holds client is a person from abroad. She explains she agrees with an earlier decision (which got some other bits wrong but she says this bit right). The bit she endorses is this:
“39. The DWP’s Housing Benefit Guidance Manual (paragraphs C7.500 to C7.505) tells local authorities that ‘[a] claimant who is receiving IS or JSA(IB) is not to be treated as a [person from abroad]’ and ‘it should normally be assumed that Jobcentre Plus has applied the appropriate tests’. If a local authority has evidence that a claimant may be a person from abroad, the local authority should confirm with Jobcentre Plus that the appropriate test has been applied. The Manual rightly does not say that a Jobcentre Plus decision is binding on a local authority, though the first phrase that I have quoted from it tends to give that impression. In my view, that would be to overstate the duty of the local authority; I do not consider that the local authority is precluded from disagreeing with such a decision. On the other hand, I do not consider that the local authority is obliged to decide the issue from scratch as though the Jobcentre Plus decision did not exist. Where the local authority is satisfied that a considered decision on the issue has been made by Jobcentre Plus, the local authority is entitled, in the absence of anything to compel a contrary conclusion, to regard the existence of that decision as satisfactory evidence that the claimant is not a person from abroad.”
So if you have alternative evidence or arguments then the LA should definitely come sort it out. If you don’t they can (but don’t have to) take account of what the JCP said. I doubt they are however aware of why the JCP decided the case as they did though.
Thanks very much Martin, this is really helpful and good to know what a claimant may reference if they did want to push the local authority to make their own decision (even if it is quite unlikely that they will).