Terms & Conditions

[Trevor Kenward]

Any help appreciated on this one

Cliamant Portuguese – been in country less than 5 years

Receives JSA(c) and HB refused as this was not treated as being a qualifying benefit as per reg 10(3b)(k).

Now has provided letter from JSA office stating entitled to both JSA(IB)
and JSA(c). JSA(IB) is a qualifing benefit.

CAB involved and case will go to Tribunal if decison not to award HB is not revised.

Anyone had anything similar. 😕

Thanks guys.

[Anonymous]

I’m not sure I understand what the problem is…

HB/CTB wouldn’t normally be refused just becuase someone isn’t getting a qualifying benefit – the claim would be assessed in the usual way with CB-JSA as income. But since the JC have confirmed that the client is getting a qualifying benefit, what’s the problem in revising?

[david kearney]

If someone in recipt of JSA(IB) they are automtically passported onto HB, If they are receiving JSA(C) then you need to make your own decision as to whether they are a qualifying person as per si 2006/1003 (below). Getting JSA(c) means they are registered as a jobseeker so as long as you are happy with the other conditions you can pay.

The issue as to whether someone iro JSA(C) also has an underlying entitlement to JSA(IB) isn’t really relevant, but does make a difference in terms of other issues like the month grace to provide a claim form etc. It was discussed on here a while back, dont think there was ever a definitive answer, but I would say that you could interpret it that they are in receipt of JSA(IB)

6. — “Qualified person”

(1) In these Regulations, “qualified person” means a person who is an EEA national and in the United Kingdom as—
(a) a jobseeker;
(b) a worker;
(c) a self-employed person;
(d) a self-sufficient person; or
(e) a student.
(2) A person who is no longer working shall not cease to be treated as a worker for the purpose of paragraph (1)(b) if—
(a) he is temporarily unable to work as the result of an illness or accident;
(b) he is in duly recorded involuntary unemployment after having been employed in the United Kingdom, provided that he has registered as a jobseeker with the relevant employment office and—
(i) he was employed for one year or more before becoming unemployed;
(ii) he has been unemployed for no more than six months; or
(iii) he can provide evidence that he is seeking employment in the United Kingdom and has a genuine chance of being engaged;
(c) he is involuntarily unemployed and has embarked on vocational training; or
(d) he has voluntarily ceased working and embarked on vocational training that is related to his previous employment.

[Trevor Kenward]

Sorry if my posting wasnt clear.

After taking advice from Adelphi ( I know, dangerous game), they confirmed that JSA(c) was not a qualifying benefit and that in this case
the claimant would therefore be subject to the Habitual Residence Test.

My question was therefore on the basis of underlying entitlement to JSA(IB) passporting onto HB entilement.

[Anonymous]

I think what Trevor is saying is that the claimant is not getting the qualifying benefit (JSAIB), but has an underlying entitlement.
In some cases an underlying entitlement is enough to qualify for HB / CTB, but although I haven’t looked it up, I have a nagging feeling that in this case it is not and you have to be actually getting the relevant Benefit.

If that is the case, then no Benefit for your Portugese person, I’m afraid, unless for some reason he or she retains worker status, (which may be the case, as you would presume he or she may have been working for long enough to qualify for retained worker status as outlined above) or is viewed to be self sufficient and not to be an unreasonable burden. 8)

[Anonymous]

Apolgoies, I misunderstood the question originally. But I’m still a little confused about the reference to underlying entitlment to IB-JSA, since claimants are either entitled or not-entitled. What do you mean? I can’t think of any circumstance, except where benefit is awarded and then suspended, where the phrase ‘underlying entitlement’ can be applied to IS or IB-JSA.

In your first post, you said the claimant is entitled to both CB-JSA and IB-JSA, which is not uncommon, especially for couples and some single people. If this is the case, then the claimant is entitled to IB-JSA, in addition to the CB-JSA and so would meet the test in reg 10.

[Anonymous]

I think a couple of strands need to be separated out of this query.

First, “underlying” JSA(ib). As with any means-tested benefit, you do not qualify for JSA(ib) if your income is too high: you have no entitlement to JSA(ib), underlying or otherwise. But a single person aged over 25 who receives JSA(c) and no other income will have income that is exactly equal to the JSA(ib) applicable amount. By s3 of the Jobseekers Act 1995, a person is entitled to JSA(ib) if s/he has an income that does not exceed the applicable amount. Well, equals doesn’t exceed. This means that people who are entitled to JSA(c) only at exactly the same rate as the JSA(ib) applicable amount are entitled to JSA(ib) at the rate of nil, but they can enjoy the passported goodies that come with JSA(ib) entitlement.

As to PFAs in HB, it is true that Reg 10(3B)(k) says you automatically satisfy the HR test only if you are “receiving” JSA(ib) and there is no deeming rule that treats you as receiving JSA(ib) in these circumstances as far as I can see. Contrast that with, for example, paras 4 & 5 of Schedule 5 whch talk about income being disregarded where a claimant is “on” IS or JSA(ib), and the definition in Reg 2 that treats a person as being “on” JSA during various sanctions. Reg 10 does seem to require that the claimant is “receiving” JSA(ib). But I wonder whether that is an over-pedantic quibble?

Assuming that the claimant is not receiving JSA(ib) for the purposes of Reg 10, that does not mean that he fails the HR test – it just means that he does not escape the HR test vy virtue of the passporting effect of JSA.

To be getting JSA(c), the claimant must have worked in the fairly recent past. This could have been in Portugal, because workers may export the contributin record to another member state. If so, I believe his status here would be that of work seeker and if so he would fail the HR test by virtue of Reg 10(3A) – the RoR as a work seeker is not good enough to satisfy the HB HR test.

On the other hand, he could have been working in the UK. If so, his status now is almost certainly that of retained status worker, in which case he falls into one of the other groups who, like JSA(ib) clainants, completely escape the HR test: see Reg 10(3B)(c). My money is on that.

For the avoidance of doubt, I think the reason he does not “receive” JSA(ib) is purely means-test related and has nothing to do with his European status. It therefore falls to you to conider his European status for HB purposes. For the reasons in the above paragraph, I believe he satisfies the HR test as a worker with retained status.

[Trevor Kenward]

Thanks to Jon and Peter for their input.

The case in question has now had a twist in that the DWP have now awarded JSA(IB) from the onset and therfore HB can be awarded.

On Peter’s point however on the retained worker status this was considered but was felt did not apply as claimant voluntarily gave up his job.

Thanks again for the contributions.

[Anonymous]

If you want the woolly liberal view of “involuntarily” unemployed, check out CH/3314/2005. I am not sure how long this will stand before other decisions start to outnumber it, but the Commissioner’s view is that being involuntarily unemployed means out of work, preferring not to be out of work and trying to do something about it. How you came to be unemployed is not the issue.

I am not 100% convinced myself, but that is the authority as things stand.

[Author]

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