Hi All,

A polish national arrived in Uk in March 2007 with husband and one chid. Husband worked 30 hours and wife 20 hours under Worker Registration Scheme. They recieved WTC, CTC & HB. Wife preganant and recieved Maternity Allowance from December 2007. Husband left her in January 2008. She will return to work once her Maternity Allowance runs out.

HB decision supersede to nil qualify stating lost right to reside as not a qualified person.

I remember reading a CD ( can't find it now) where the claimant was deemed to maintain a link with the labour market and qualify for benefits during 'maternity leave'.

Are there any other arguments? Can I say she is a spuse of a Qualified person as she is only separted and not divorced from her husband.

Any help appreciated.

I was interested to know what happened with this case - I have a pregnant EU national currently working and will become entitled to MA but then her contract ends after one month of MA entitlement and I am concerned that if hse continues to simply claim MA she will lose right to reside i.e. HB / CTB / CTC and even if she will remain entitled to MA once she is no longer a "qualified person".

Or will fact that she will continue to be regarded as an employed person by the inland revenue i.e will continue to get working tax credit be sufficient for her to retain right to reside

her R2R will only be as a retained worker status.... she can apply for and get JSA ..... however.... JSA and MA are mutially exclusive benefits (you can't get both) ... if she claims MA she will lose her R2R.... if she claims JSA she will retain her R2R

I have a client in exactly the same position. The LA has accepted that she is within a 'temporary period of incapacity' and is continuing to pay HB/CTB. She's also still receiving WTC/CTC on basis of her entitlement to MA.

Thats hopeful then, my feeling is that the entitlement to MA is derived from her previous employment and therefore still allows her to retain the status of worker for similar reasons i suppose that the tax credit system will still regard her as a worker.
Its just worrying not knowing for sure because the last thing she will need one month after the birth of the child is for all her benefits to stop even if eventually she gets them all back.

From Shelter guidance:

Arguably a woman who is temporarily not looking for work because of pregnancy or because she has just given birth is temporarily incapable of work and retains worker status under Article 8 of Directive 68/360.

This specifies that a person who is temporarily incapable of work retains their rights as a worker. Under UK social security rules a woman is treated as incapable of work for a period of 11 weeks prior to the expected date of birth and 15 weeks after the birth.

Therefore a woman who is an EEA national should also be treated as temporarily incapable of work – and hence retaining the right to reside - during this period because otherwise there would be discrimination even if that work was temporary and has ceased.

Thanks for that - any other strategies for arguing that she retains worker status after 15 weeks?

had a similar case.... EEA nationals can claim income support if they are temporary sick and unable to work (or look for work). The problem however is that pregnancy is not a sickness !
under the UK social security rules pregnant females may be treated as incapable for work, and UK pregnant demales are usually treated this way, there is no compulsion to do this and any pregnant female can insist that she is still looking for work and claim JSA... and thus retain her workers status. She will be refused income support because she has lost her R2R because she is not working

Maternity allowance paid by the government is not work related and will not ceate a retained workers status... Maternity benefit paid by the employer... keeps the worker status

You should definetley consider the separated spouse argument - spouse still qualifies as a family member during a separation and if husband has R2R as an A8 who has completed 12 months registered employment than she will also have R2R and be able to claim IS.

I recently had a case for a Romanian client who had separated from her self employed husband - DWP accepted the argument without appeal and things were made easier because he was paying Class 2 stamps and the DWP could therefore verify his self employed status and hence his R2R.

I'm not clear why MA should be automatically not work related just becasue paid by govt since the qualyifying route is still employment based and the Inland Revenue still recognise someone on MA as employed for tax credit purposes.