Right to reside, IS and JSA

I have a problem that I think is now familiar to this forum but could still do with help. A Polish claimant, here since 2007, telephoned Contact Centre was advised to claim (or at least was not advised that she could not claim) Income Support following the birth of her child.  She was refused IS on the right to reside test and claimed JSA, but the gap is 5 months - 3 March to 7 July.
We have appealed both the decision on IS (she may just squeeze into the five years permanent residence rule, depending on how all her work is treated) but we have also asked for backdating of JSA which has been refused, and which we are now appealing.

The appeal against the decision not to backdate JSA has come up first.
I have looked at the papers for the JSA appeal and they have refused the appeal on the basis that “none of the conditions of regulations 4 & 6 and regulation 19 paragraphs (4) to (7) of the Social Security (Claims and Payments) Regulations 1987 are satisfied.  Elsewhere they seem to say she has not had “good cause” to request backdating.

We have asserted that she continued to look for work, and the papers say that they accept that the Labour Market conditions were allowed from 2 March 2012. 

I’d appreciate any advice on the best arguments to pursue in the tribunal hearing

Ruth Knox

Advice to claim BENEFIT A by the DWP can be taken as inferring that this means you are not entitled to BENEFIT B (or that a claim for BENEFIT B would be beside the point).

That is therefore advice from an officer of the DWP which leads you to believe a claim for benefit will not succeed (Reg 19(5)(d) C&P Regs- one of the conditions for a potential 3 months of backdating).

See on this CIS/4884/2002:

“if for example the information was that some different benefit was available which, if correct, would have made such a claim beside the point”... then that will do.

CJSA/580/2003 adopts that approach as well:

9.  I prefer to follow the Commissioners in Great Britain who have held, consistently with R(IS)3/01, that the term “information” must be given a practical, rather than an artificially restricted meaning.  I reiterate what I said in CIS/1987/1998 and I entirely agree with Mr Commissioner Howell QC in CIS/4884/2002 that it is not necessary that what the claimant was told by a departmental official should have referred expressly to the benefit afterwards sought to be claimed if, for example, the information given to the claimant was that some different benefit was available which, if correct, would have made a claim for the benefit beside the point.  I do not think that I can improve on the way in which the matter has been put by Mr Wayne Spencer, on behalf of the Secretary of State:

“…when the claimant was told by an officer to claim working families tax credit (and later income support), she was given “information” for the purposes of regulation 19(5)(d). …that information in all probability led the claimant to believe that working families’ tax credit was the only benefit to which she was potentially entitled.  A recent arrival in this country, such as the claimant, is unlikely to have any background knowledge about Britain’s labyrinthine benefits system.  If she discloses her circumstances to a relevant officer and is told in response to claim one benefit, she can reasonably assume that she has been given an accurate and complete statement as to her probable entitlement to benefit.  The claimant’s statements suggest that this is what happened in this case.  Moreover…the fact that the claimant initially claimed working families tax credit alone also points to the conclusion that she had been led to believe that that was the only benefit to which she may be entitled.  She evidently had no reason not to claim all of the benefit to which she may be entitled.  That being so, her failure to claim jobseeker’s allowance implies…that she did not know that she might not qualify for it…both limbs of regulation 19(5(d) are satisfied in her case.”

If only the inimitable Mr Wayne Spencer had been preparing the submission in your case! Unfortunately, I think you only get such a quality response once they have let the local office mess it all up and you have to appeal to the Upper Tribunal.

Note: I have not commented on the right to reside issues in your case as you seem ok with that and I don’t have enough information to say anything further.

Thank you Martin, that is really helpful. I was also a bit anxious because I seem to remember reading even if we establish wrong advice that it is not possible to backdate JSA and that we should look for a compensation payment instead, but I can’t find anything to indicate that ( as they seem to have accepted she was in the labour market which is the most difficult thing to prove retrospectively).  Can you comment on that?  Ruth

As you say if they have accepted she met the labour market conditions then I think that is usually the main battle so you are more than half way there.

I think the caselaw I referred to should basically sort it out: establishing that they told her to claim IS more or less brings her within the rules allowing backdating JSA.

Will a 3 month backdate completely cover the missing period?

I think in this area DWP have been quite good at paying compensation (including for lost HB entitlement where that appropriate)- but obviously in your case it seems like the backdating argument should work.

Thanks Martin. I will let you know how this case goes. I think the gap is 4 months (need to check my dates) so it may not all be covered.  Ruth

Our appeal on this issue was successful and maximum backdating allowed. However, I think this was only because we were able to cite the two cases you gave me Martin - otherwise the judge would have ruled that my client did not meet the strict criterion of being advised that she was not entitled to JSA.  Thanks for your help.  Ruth

Nice one.