A8 and temporary absence

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  • #38309
    Kully Bains
    Participant

    Our claimant ,was JSA (IB), but this stopped when he decided to go abroad for 13 weeks. He intends to return , but am i correct in thinking that if he doesnt yet have permanent right to reside, he cannot claim HB under temporary absence rules, as he is has left the labour market? he is no longer available for work while he is absent?

    He was on JSA(IB)from 18/10/2010 and this only ended when he went abroad for 13 weeks. i am asuming he has completed 12 months authorised work (we didnt have any claims priort o JSA award , however on the basis that he was entitled to JSA from 18/10/2010 he would have had to have completed 12 months authorised work.) He has two children both under school age.

    #107793
    Kay_Tade
    Participant

    I think, depending on work history, he can still be treated as retaining worker status. See Art 7(3)(b) of Directive 200/38/EC. As long as the 13 week temp rules still apply.

    #107795
    Kully Bains
    Participant

    Art 7(3)(b) of Directive 200/38/EC states

    “For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self-employed
    person shall retain the status of worker or self-employed person in the following circumstances:
    (b) he/she is in duly recorded involuntary unemployment after having been employed for more
    than one year and has registered as a job-seeker with the relevant employment office;”

    but if his JSA has ended he is no longer registered as a job seeker?

    #107798
    Kay_Tade
    Participant

    [quote=Kully Bains]but if his JSA has ended he is no longer registered as a job seeker?[/quote]

    They are aware he is away temporarily, he just doesn’t satisfy their temp absence rules for JSa, so no JSA will be paid. He is still registered as unemployed.

    “(b) he/she is in duly recorded involuntary unemployment after having been employed for more
    than one year and has registered as a job-seeker with the relevant employment office;”

    It’s silent about anything else! Unless you want to deem the 13 weeks as voluntary unemployment, starting from date JSA ended[I really can’t see that], and then maybe he fails this condition.

    #107818
    franklinj
    Participant

    The A8 becomes economically inactive at the point JSA ends – HB stops then so not eligible to claim as n longer a QP (qualifying person)

    #107822
    Kay_Tade
    Participant

    [quote=franklinj]The A8 becomes economically inactive at the point JSA ends – HB stops then so not eligible to claim as n longer a QP (qualifying person)[/quote]

    Jenny, No longer a QP as a “worker” or “Work seeker”?

    The crux is: can he still be described as a former worker who retains his status, not having left the job market OR will he now re-enter with the inferior statius of work seeker after the period of absence? This means only JSA(IB) would give him R2R when he comes back.

    Does the fact that his JSA ceased mean he is no longer employable or is no longer seeking work(In the sense that he retains “worker” status).

    You must decide whether, based on the facts and in your opinion, the claimant left the UK job market or not.

    In my opinion, he still hols his superior status of “worker”, during the temp absence, based on these particular facts.

    #107829
    franklinj
    Participant

    My answer still stands – he is economically inactive – he is going away why would we pay him while he is absent? Eligibility to claim HB ends when the JSA ends – he is inactive and needs to be self sufficient for the period while he is away or on holiday or abroad – we certainly would not pay this claim in our LA unless he was re granted JSA(IB) or gets a job.

    #107833
    Anonymous
    Guest

    You cannot mechanically tie job market activity to periods of JSA entitlement and say that someone is no longer a worker or even a work seeker the instant he stops receiving JSA. There are plenty of cases that take a more flexible line: for example, turning a blind eye to the odd few days here or there when the person was “taking stock” as Judge Jacobs once put it, and also remaining in the job market and retaining worker status in the context of an IS claim if you have young children, which the DWP is currently challenging in Sec of State for W&P v Elmi.

    However, in this case I think I might be inclined to conclude that the claimant has left the job market – this absence is more akin to the “six months’ backpacking in the Australian Outback” that Judge Jacobs contrasted with “taking stock” in the same case.

    #107840
    Kay_Tade
    Participant

    [quote=Peter Barker]However, in this case I think I might be inclined to conclude that the claimant has left the job market – this absence is more akin to the “six months’ backpacking in the Australian Outback” that Judge Jacobs contrasted with “taking stock” in the same case.[/quote]

    That decision convinced me that we need to look at the bigger picture, from what Kully has described, and bearing in mind this happended back in Ocober 2010 which means he now has enough do decide if he was “worker”, “work seeker”, whatever, which obviously is better than making the decision at the time, seems to me that kully is looking not to pay HB for the absent period.

    Well kully has all the info but like I stated earlier, is it enough to decide that the claimant has “effectively” left the job market? Flip a coin kully! 🙂

    #107843
    Kully Bains
    Participant

    To clarify we were already paying HB/CTB ,customer had been on JSA (IB ) Since October 2010 and this has ended in June 2011 because customer has gone abroad .(i was checking if there were any grounds to continue payment from June 2011 during his absence ) (customer intends to return and his absence is likey to be around 12 to 13 weeks from his statement it seems he has no confirmed return date )

    i have sought advice from DWP following a difference of opinion on this forum and this is their reply:
    “Under EC Directive 2004/38/EC worker status is only retained if the EEA national is registered with the relevant employment office (Jobcentre Plus in the UK) and seeking work where they are involuntarily unemployed. If they have lost their worker status or haven’t worked in the UK then they can only have jobseeker status if they are seeking work in the UK and are registered with the relevant employment office – for HB/CTB purposes jobseeker status is a non-qualifying right to reside if the EEA national isn’t receiving JSA(IB).
    Therefore, as your claimant has stopped claiming JSA he no longer has worker status (if he had it before) as he isn’t seeking work in the UK at the moment. JCP don’t take registrations for jobseekers (once upon a time you could register for work but not claim benefits) and only claiming JSA counts as being registered as a jobseeker. As he isn’t seeking work or claiming JSA he doesn’t currently have worker status. If he previously had jobseeker status he can’t have it whilst not claiming and receiving JSA(IB).

    He has to be in the UK to exercise an EC Treaty right so you don’t need to consider him under the economically inactive / self-sufficient person status. ”

    #107845
    franklinj
    Participant

    Thanks Kully – just as we suspected – so in a way you can tie job market activity to periods of JSA (IB)entitlement. This is the stance we take – no JSA(IB) no eligibilty!

    #107852
    Kay_Tade
    Participant

    Thanks for clarifying Kully, but I guess we will have to agree to disagree on the “No JSA(IB) in payment = no “worker” status in this type of cases. I still think, and for me it’s a case by case thing, you can retain your “worker” if JSA ends, as long as you are still in the job market and registered as unemployed.

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