A8 National – Polish – Help!!

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  • #35191
    Claire Moses
    Participant

    Hi all,

    Just wondering if you would be able to advise…..

    We have an A8 National, Polish customer who came into the country in March 2006 and worked up until October 07. She then went onto sick pay until December 2007 where she then applied for Income Support.

    She has been declined for IS / JSA.

    Can you advise – are we able to pay based on nil income? Or do we follows IS / JSA and not pay HB/CTB?

    Thanks

    #98756
    damo
    Participant

    Hi Claire – I think the LA has to make their own decision. Had they awarded i/s then you would be bound by dwp’s decision. (probably).

    #98757
    Kay_Tade
    Participant

    Hi Claire I agree with Damo – You have to make your own decision based on the info you have. If claimant can be treated as a worker under article 7 of the Eu directive for the period 10/07 to 12/07 and was a treated as a worker prior to this then I would pay HB based on nil income.

    If i/s had beeen awarded there would not have been an issue so I would seek further clarification on I/S refusal.

    Hope this helps.

    (neede to get the names right) 😳 Again? 😳

    #98758
    Karen
    Participant

    now don’t quote me –

    but if an A8 worker completes 12 months authorised employment, then go unemployed they retain there their workers status and can be considered for HB under normal rules…….??

    #98759
    damo
    Participant

    if it was 12 months uninterrupted registered work then i think that they are treated as any “normal” eea national and she would still have to have a right to reside … doesn’t sound like she is economically active at the moment, or that she has been here long enough to have a permanent right to reside and she isn’t on jsaib so unless she is self sufficient i don’t think you can pay.

    #98760
    David
    Participant

    Not quite. They are treated the same as an EEA national after 12 months authorised employment. To retain worker status they need to be working or at least contracted to the employer. My guess in this case is that your clmt is no longer on employer’s books, so no longer a worker. Hence refusal of IS.

    #98761
    David
    Participant

    Not quite. They are treated the same as an EEA national after 12 months authorised employment. To retain worker status they need to be working or at least contracted to the employer. My guess in this case is that your clmt is no longer on employer’s books, so no longer a worker. Hence refusal of IS.

    #53073
    ralph
    Participant

    Work seekers have a right to reside under EU law and The Immigration (European Economic Area) Regulations 2006.

    Work seekers are able to claim JSA(IB). They cannot claim IS or State Pension Credit on the basis of a right to reside under Article 39 of the EC Treaty, Article 6 of the new Directive or the equivalent provisions in The Immigration (European Economic Area) Regulations 2006.

    However Reg 6(4) of these regulations defines a work seeker as someone:
    [quote:7a27bd696e]who enters the United Kingdom in order to seek employment and can provide evidence that he is seeking employment and has a genuine chance of being engaged.[/quote:7a27bd696e]

    Therefore someone who has left work is not a work seeker as far as these Regs are concerned.

    There are provisions under Reg 5 if a person has left work because he retired or suffered an industrial accident.

    In claiming JSA (IB) they must also satisfy the second part of the HRT, ie actual habitual residence.

    Their right to reside is for an initial period of six months unless they can show that they are genuinely seeking work and have a reasonable chance of being engaged.

    Work seekers on JSA(IB) will be passported through the HRT for HB and Council Tax Benefit [HBR 10(3B)(k) / CTBR 7(4A)(k)].

    [b:7a27bd696e]Work seekers who are not on JSA (IB) will not be passported through the HRT for HB and CTB. Their right to reside as a work seeker is a non-qualifying right to reside when claiming HB or CTB only.[/b:7a27bd696e]

    Members of a work seeker’s family have a right to reside in the UK but must satisfy the second part of the HRT. Such a family member on JSA(IB) will be passported through the HRT for HB or CTB.

    #98762
    Kay_Tade
    Participant

    Under article 7

    If they were registered originally and completed 12 months registered work so as to be treated as a normal EEA worker OR they have not completed the 12 months but are registered and are off sick from the employer they are registered with, then they would retain worker status. Even if they received their P45 during the illness they still retain worker status, you do not need to be a worker, just retain the status. Temporary is as it states, temporary, she was ill and now is she is not for the period inbetween it would be temporary.

    How do you define temporary illness?

    #98763
    stevedaymond
    Participant

    I think sometimes we can over complicate PFA claims when there could be a simple answer.

    The claimant came to the UK in March 06 and worked until October 07. She then received sick pay from October 2007 – December 2007 and then made an application for IS that was refused.

    If she registered with the Workers Registration Scheme prior to October 2006, or between October 2006 and December 2006 and received SSP from the employer she would have completd 12 months registered employment and could retain worker status. If not there is no way they can retain worker status due to the Reg 5(2) of The Accession (Immigration and Worker Registration) Regulations 2004.

    If she had completed 12 months registered employment then she could retain worker status using Reg 7(3) of 2004/38/EC if:
    1. she was involuntarily unemployed i.e. out of work but trying to get back into work and was signing at the jobcentre as a work seeker, or
    2. if she was temporarily unemployed due to injury or illness then she would retain worker status and still be eligible for HB/CTB.

    Temporary is lasting for a limited time so not permanent, no point in over complicating this.

    If she made a claim for IS she would not be signing as a jobseeker and as this was refused presumably she is no longer signing at all so can not retain worker status as involuntarily unemployed.

    If she is still being signed off sick by her doctor then she could be involuntarily unemployed due to injury or illness.

    If she can not retain worker status and is not signing as a jobseeker she would be economically inactive and need to be self-sufficient i.e. having income above the IS line which she would not have hence the IS claim and also have comprehensive medical insurance using Reg 7(1)(b) of 2004/38/EC.

    It would be worth querying the IS refusal decision but you will probably come to the same conclusion.

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