Hi, I have an A8 client who was in paid employment for less than 16 hours per week and was getting JSA. This is OK as she was classed as a worker and this work was fully registered. However, she has not worked for the last year and now claims she is self employed (but not actually manageing to get any income)She says that the JSA are all OK with this and that she will continue to get JSA as long as she is self employed but getting less than 16hrs work or even no work at all.
Is this correct and under what regs please.

The workers registration scheme does not apply to self-employed people. If your client can show that she really is self-employed (eg ags registered for tax and class 2 NICs with HMRC) then periods when she is not actually earning - which often befall small businesspeople - may still fall within a period of self employment. Look at the income rules for MTBs for self-employed people. As long as she can convince JCP that she is actively seeking and available for work, she is no different to any other self-employed person. She is a "qualified person" for the purposes of EC 2004/38.

Thanks.... she would be a qualifying person if she were self employed, but can a self employed person claim JSA ?

I may be incorrect but if your client has not completed a 12 months work under registration regs, then I cannot see how she can claim jsa under any domestic regs. Claiming jsa whilst still deemed to be a self employed ( see reg 95 of the jsa regs) does not apply to the Accession workers in the circs of your client. Self-emplyed A8 nationals are exempt from R2R and HRT just like ordinary EUs so entitled to all in work benefits. The fact that DWP may ask a lot of question about whether or not some on is actually self emplyed was considered by Commissioner Mesher in RIS/6/00 and he held that to be considered a self-emplyed, then under reg 4, because it states "in order to", you did not have to go through and show all the bit and bobs that DWP would require. It would depend on the circs of each case. In that sense, I think if your client has not finisfed the 12 months registered work, either, goes via RIS/6/00 and argue her case, or that she she actually starts getting some money from the self-emplyment, or that she starts some registered work.

she has not completed 12 months continuous registered employment. Therefore she is still an A8
She was in registered work of less than 16 hours per week. Therefore she could claim JSA but onlyas long as she was working, if she stopped working she would not be eligible for JSA as she would then be a non-employed A8

She has not worked since Oct 07

She is still being paid JSA

She says she told JSA that she was now self employed but that she has not acually done any work at all since Oct 07

Since Housing Benefit are paying on the basis of the JSA, if the JSA are wrong there there could be a very large overpayment debt.

Is she eligible ?
If she is eligible we can arrange homeless accommodation... if she is not , we can't

Hi Nick

I think you could think about the problem like this:

1- A8 national. Is self employed. She is exempt form R2R & HRT. can claim all in work benefit, such as wtc/ctc/hb/ctb/cb etc.

2- She is not a self-employed person . She cannot get jsa as the 2004 Accession registration reg prohabits her, becasue she has not completed 12 months of registered work. see reg 7 and 8 of the 2004 regs.

3- So what can she do, if no longer self-emplyed? There will be no benefit avilable to her, other than getting a registerd job, then, she will be exempt again from R2R & HRT and can then claim all inwork benefit (see above).

4- If she wants to remain as self emplyed, then if may argue the points Commissioner Mesher made in R1S/6/00 ( see my last post) to get back on all in work benefit.

5- if she has completed her 12 months registered work, then she can claim jsa, and hb etc no problem.

6- As it stands, given that she has not ( as you say) copmleted the 12 months, then how she is getting jsa, I do not know. HB ( see reg 10 of the hb regs 2006) will be paid because ibjsa is paid, but should it?

7- if, there is no entitlment to jsa and she has been wrongly getting it then defence may that she legitimately was receiving jsa

sorry point 7 should read: if, there is no entitlment to jsa and she has been wrongly getting it then defence may that she legitimately was receiving jsa , hence, hb paid because of jsa, hence no op. There is a decision on this point and i will post it to you when i remember it.

The overpayment thing is a red herring.

If there is an overpayment of HB then it's clearly non-recoverable in nature. Its cause would clearly be official error - the mistaken award of JSA by the department - and claimant could not reasonably be expected to realise she was being overpaid.

As to the substantive issue, I see no reason your client cannot be self-employed. Leaving aside the various decisions to the effect that one does not cease to be in renumerative work as a self-employed worker simply because one hasn't worked in any particular week or because there has been a temporary hiatus in contracts coming in, I'm certain there's rules that allow people to be treated as "actively seeking work" whilst taking steps to establish themselves in business. Can't reference this at the moment as away from the office, but I'll come up with something later if you need it...