RTR - pregnant woman

I rarely get involved in RTR so any advice would be appreciated.  Cl. is Spanish.  Been in UK 3+ years.  Worked for about 1 year but has never claimed benefits.  Is now pregnant - father is a non-EU national & not now involved with Cl.  Cl. recently had very short term job but this ended after about 2 months.  Baby not due until late spring.

I know she can claim JSA as a work seeker but that when the baby is due she will not be able to do so (or to continue working if she then has a job, without going on maternity leave).  I am also given to understand that she will not then be exercising a treaty right in UK so will not be able to get any benefits - no IS or HB, no help with accommodation.  It seems she will then be destitute.

Is this correct please?  If so, what advice can she be given?

ESA?  Former worker now ill?  If she has a job and is on maternity leave (i.e. her contract has not ended and she is eexpected to return) then she is still a worker and still has a right to reside

Pregnancy is not an illness so Alan’s suggestion will not work (unless there is pregnancy related ill health).

Claimant should claim JSA as long as possible. Note that availability for work can be limited in light of her physical condition etc.

See the reference made to the European Court of Justice in Jessy Saint Prix v SSWP[2012] UKSC 176 - http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2011_0176_Judgment.pdf

If this claimant has no other avenue to get benefits (ie JSA becomes an impossibility because the DWP say that she is treated as LCW etc) then there is an important issue about whether she should be entitled to some sort of interim paymnet during that period pending the judgment. See the article here: http://www.cpag.org.uk/content/right-reside-interim-payments-pending-outcome-appeal (although note that the interim arguments become even more compelling when the supreme court has made a referral- the highest UK court has said that this issue is not legally clear. that being the case it is not possible for the decision maker to decide the case one way or the other, therefore interim payments need to be made. also note that the need of the woman for payments during maternity etc. is quite compelling set of facts). I think CPAG would be happy to advise further on cases such as this when the need arises. As it raises a public law issue, you can email to .(JavaScript must be enabled to view this email address)

Martin

SMP- seems she no longer has work.
MA- causes problems with HB potentially. I think safer to remain on ibJSA etc. for as long as possible.

Thanks for all the replies - very helpful.

Martin - I’m not clear why getting MA could potentially cause difficulty with HB.  This is probably revealing my ignorance but as far as I can see Cl. could claim MA as a EU national if she qualified.  But I thought she would not be able to claim HB once she was off IBJSA (whether she was getting MA or not), because she is not then exercising a treaty right.  Or is getting MA deemed to be such exercise - which would seem to lead to the opposite conclusion to what you are suggesting?

I guess from your comment I’ve got this wrong - I’d appreciate it if you can explain.

Thanks.

The difficulty with HB is that a right of residence solely as a workseeker specifically excludes a person from entitlement. A person actually in receipt of IBJSA is, however, entitled to HB.

Martin Williams - 15 November 2012 12:10 PM

If this claimant has no other avenue to get benefits (ie JSA becomes an impossibility because the DWP say that she is treated as LCW etc) then there is an important issue about whether she should be entitled to some sort of interim paymnet during that period pending the judgment. See the article here: http://www.cpag.org.uk/content/right-reside-interim-payments-pending-outcome-appeal (although note that the interim arguments become even more compelling when the supreme court has made a referral- the highest UK court has said that this issue is not legally clear. that being the case it is not possible for the decision maker to decide the case one way or the other, therefore interim payments need to be made. also note that the need of the woman for payments during maternity etc. is quite compelling set of facts). I think CPAG would be happy to advise further on cases such as this when the need arises. As it raises a public law issue, you can email to .(JavaScript must be enabled to view this email address)

Martin

We have just received a decision on an outstanding appeal, decision appealed against was made prior to the St prix judgement, and FtT decided that St prix applied.

I have no problem with that, after reading Martin’s post, seems to make sense (The claimant argued the LA did not interpret Art 7 correctly and that she had retained her worker status through her pregnancy) that as the outcome was a positive one for her, as in the case of St Prix, a revision is applied regardless of the date of judgement, which is not the same if it had been a UK court, it would only have been applied from the date of judgement.

My question is, if the FtT have correctly applied St prix, why does the DWP memo @ para 2, state that the decision only applies from 19/06/14? https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/372844/m-25-14.pdf

Or am I reading the memo incorrectly?

Hi chacha

The ECJ’s judgment in Saint Prix, like all court judgments, is a declaration of the law as it has always been - i.e. it applies retrospectively. 

However, the anti-test case provision in s27 of the SSA 1998 aplies so that the Secretary of State has to ignore it when deciding on entitlement prior to the date of the judgment.  This is probably why the Guidance says that the judgment “takes effect” from 19.6.14.

S27 doesn’t apply where a decision was already made by the Secretary of State prior to the judgment and the claimant has appealed or appeals within the longstop.  That is probably why the Tribunal was able to rely on Saint Prix in the case you mention even for periods prior to June 2014.

By the way, the Upper Tribunal is due to hear a set of linked appeals as lead cases to decide the scope and application of Saint Prix.  We’re representing one of the appellants, ref CIS/1288/2012.  The hearing is on 19th March 2015.

Mike

Details of the forthcoming UT case are her: http://www.cpag.org.uk/content/pregnancy-right-reside-scope-saint-prix

Thanks Mike, I think that has cleared my foggy head and good luck with your case. I think clarification, on the scope and application of Saint Prix, will be of great help to claimants (And more importantly DMs) in these types of cases.

Just to add to the details I posted originally, the main reason the case went to FtT was because we couldn’t find how anyone who had worked for less than 12 months, could retain “worker” status, notwithstanding St Prix, beyond 6 months under EU law. The EEA regs would allow it but not the Directive, so how does St Prix affect this? Maybe the UT case will shed a light.

The case has been on-going for so long it’s been decided not to take it any further and just pay the claim, as we were only talking about a period of 4 months.