R2R Jobseeker or worker ?

In my CAB we had a couple of cases now with people doing work below earnings threshold and JSA applicable amount,  which could arguably amount to genuine and effective work, and probably would have done so under the old rules.
If they were to claim JSA as a top-up, would this mean they have jobseeker status for the r2r, without any change of establishing r2r on basis of their work? 

They have been refused HB and CTC/CHB, so maybe this is the wrong category…

Looking at the HB first… (CTR will generally go with this obviously)

Since RTR was introduced HB has always been denied to jobseekers: being a jobseeker was not classed as the ‘right kind’ of RTR. The good(ish) bit was that if someone was a jobseeker AND getting income-based JSA as well they were OK. However since the HB (Hab Res) Amendment Regs 2014 came into force, that good(ish) bit has effectively gone: getting JSA only helps you get HB if you are getting i-b JSA for another reason (e.g. ‘retained worker’).So, in principle, if a claimant has been refused HB because the LA has decided that the work is not genuine and effective, getting income based JSA won’t help them. That takes you back to square one!

Having said that, it wouldn’t do any harm to claim JSA. Presumably if the DWP made a positive decision on genuineness and effectiveness and awarded (any) income-based JSA as a consequence the LA would follow this (I’m not 100% clear on how they would deal with the fact that they had already made an adverse decision on RTR, but hopefully they would treat the DWP’s decision as a change of circs). Of course if the claimant is awarded income-based JSA they would also get more money (equal to their earnings disregard)

It’s important to keep in mind that the earnings threshold stuff brought in last year shouldn’t make things any worse (at least IMO): all it does is fast-track people who earn more than the required amount. If a person doesn’t meet these requirements the DWP and the LA have to consider things in just the same way as they did before.

I highly recommend looking at the Decision Makers’ Guide (DMG) on this at “Part 3 - Habitual residence & right to reside – IS/JSA/SPC/ESA”, in particular paragraphs 73031 onwards. It gives some good examples and helps one to understand their thinking. It also makes it clear that (paragraph 73052): “Work below the Minimum Earnings Threshold that is part time or low paid is not necessarily always marginal and ancillary. A part time worker may be considered a worker for EC purposes and retain a right to residence in the UK as long as the work is genuine and effective.
Note: It is not possible to provide a formula of hours, earnings and periods of work which determine whether or not a person is a worker.”
Here’s the link:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/402081/dmgch0703.pdf

Obviously another (perhaps parallel) option would be to appeal the HB decision

Regarding CB and CTC… Since the changes last year being a jobseeker will not ‘count’ as RTR for these until you’ve been in the UK for 3+ months. If you’ve been in the UK for 3 months then being a job seeker does count, but again, if the DWP accepts that the work is genuine and effective that’s the same test HMRC would be applying. So again it won’t make any difference (although again it might be tactically worth a try).

Hope this helps!

Thanks for the reply, I just saw that now as I only work part-time (luckily I somehow still earn enough to avoid claiming benefits, or else I might be asking this question about myself). 

The HB decisions have already been appealed on the grounds that the work is genuine and effective if the LA looks at the full picture and not just at the MET (their standard response is ‘work is not g & e as earnings below MET).
What we were worried about is whether making a claim for JSA to top up income in the meantime will spoil the worker status agreement, i.e. does signing on make someone a jobseeker for r2r purposes, and if yes, does jobseeker status trump any worker status the same person might have acquired with their part-time work?

It is possible to satisfy the conditions for more than one RTR as the same time. So you can be a worker and a jobseeker at once. However, the worker status will ‘trump’ the jobseeker status in this instance as the rule that EEA jobseekers cannot get HB only applies to people whose ONLY RTR is as a jobseeker (or the family member of a jobseeker).

So as long as your clients win on the G&E front, they benefit from the non-discrimination principle.

However, the DWP and LA might not understand this point and you may need to argue it…

I agree with Matthewjay - getting JSA cannot make the situation worse.

Incidentally, in my day job last week at a CAB in Merseyside I saw a decision notice from the LA refusing HB because the claimant’s earnings are below the threshold. They seem to have got the wrong end of the stick re the DWP guidelines, and decided that if someone doesn’t satisfy this test their work can’t be genuine and effective, which is wrong. I wonder if that’s was your LA was doing. grrrr.

I don’t think we should be under any illusion as to the purpose of the MET - it’s a barrier against EEA nationals. On the face of it it’s actually quite good: if you earn x, you’re waved through that part of the claim. But I’m fairly sure DMs are using the threshold as a be-all-end-all and not bothering with the second part.

Just remember that there have been no changes in the rules - I’m not even sure if there’s been any CJEU case-law on genuine and effectiveness recently. The MET is simply an administrative tool. If you think your client’s work would be G&E before the MET, then you should think it’s G&E now.