retaining workers status

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  • #38380
    Amanda JB
    Participant

    Sorry for the epic but can anyone please help me untangle this as I am new to PFA’s:

    Clamant (Miss) is Lithuanian, came to UK approx 2007 and has worked on the WRS since then, last job started 13/08/07. Her partner is Iranian but obtained a Residence card allowing him to work as a partner of a EEA national from 05/06/09.

    Claim received in 2009, she is a a worker so we paid.
    She then leaves work on maternity in Aug 09, letter from employer allows her 52 weeks to return to work which ends 23.08.10. Partner also started some work in August 2009. Their joint income exceeds ent from novemeber 2009, claim ends

    So far so good:

    March 2010, new claim received as he has lost his job, she is still on maternity pay, so we pay again, as she is still a worker

    Aug 10 they move house but she also tells us her maternity pay has stopped, we don’t consider this imapct on her worker status and we continue to pay on other income (CB and NTC)

    Dec 10 they provide us with some DWP letters, partner tried to claim JSA in May 10 but was refused, this is going to appeal. She tried to claim I/S from Nov 10 was refused as told must be available for work. She is awarded JSA(cont)26.10.10 to 05.11.10 (OTHER) so it looks like she claimed JSA, then tried to claim I/S, but did not reclaim JSA when her I/S claim was refused.

    We suspended the claim and made some enquiries. We then looked back at this and decide that from August 2010 when her maternity leave ended she was no longer a worker and did not retain her workers status,we create an irrecoverable overpayment and say no entitlement after Aug 10, this was not notified until March 11.

    In the meantime she completed another claim form in Feb 11 as she had made another claim for JSA in Jan 11. She was awarded JSA(cont) from 18.01.11 to 10.07.11 and notes say she will then need HRT test. I suspect the delay in ehr claiming JSA was due to waiting for decsion letters from DWP.

    Another claim form was received 26.04.11 as Mr started work (this work then ended on 09.05.11.

    Due to the enquiries with the suspended claim, the 2 claims received Feb and April were not decided and still have not been.

    A check with DWP as a result of a letter received showed that his claim for JSA(IB) in May 2010 was allowed on appeal (In June 10) and he has recently been awrarded JSA(IB) for the period 26.05.10 to 20.08.10. I called DWP and they confirmed he won his appeal as he was a family member of a A8 worker and she did not lose her workers status until Aug 10 when she did not return to work after her maternity leave.

    So how do we decide the 2 claims?

    February 2011, she is on JSA(cont) does she qualify as a work seeker? I presume not as she has not retained her workers status? so would this be a nil qualifier claim? is this because the gap between ehr ending work and being a work seekers is too long?

    April 2011, can we pay his claim until his workers status ends? Then as her income is JSA(CONT) they are nil qualifyers again?

    Any help is most appreciated :8)

    #108065
    Kay_Tade
    Participant

    Geeze? 🙁 Sorry have not got the time right now it looks a bit long winded and I don’t want to leave an answer without explaining. I will reply if you don’t get an answer as soon as I can, hopefully with some sensible answer. 🙂

    #108067
    Amanda JB
    Participant

    Thank you so much Kay, I need to send a request to get the 2 undecided claims decided and want to ensure we pay everything right this time.

    It never helps when there has been several (late) DWP decisions also which seem to create gaps in their claims to benefits.

    #108068
    Amanda JB
    Participant

    Maybe should have added that her employers maternity pay ended after 39 weeks (24.05.10) that is when he put in his claim for JSA but her maternity leave did not end until 23.08.10

    #108079
    stevedaymond
    Participant

    Just to shorten it a bit. Lithuanian who has completed 12 months who effectively ceased employment / maternity in August 2010 and was not awarded JSA(C) until January. The claim has been paid until August so you are just looking at periods post this.

    You have mentioned the partner working for a couple of weeks. Due to the short nature of this job I would be inclined to deem this as not genuine and effective and not take it into account when determining the PFA side of things.

    It was confirmed in CIS/1951/2008 that the break between employment ending and signing as a jobseeker needs to be considered when determining if a person retains worker status.

    So you need to find out:

    1. Why did the customer not return to employment in August? – If she voluntarily left the labour market to raise her child then she will not retain worker status.

    2. If the employment was no longer available following her maternity she needs to provide evidence so that you are satisified that she remained in the labour market. Evidence such as emails she has sent to employers, evidence she has signed at employmnent agencies, letters from employers rejecting her for jobs etc should confirm this.

    As you have a break of nearly 5 months I think it will be hard for her to retain worker status but as you have mentioned she may have been waiting on DWP decisions so this may have delayed her claiming with them.

    #108091
    Kay_Tade
    Participant

    Steve has answered some of your query so just to add:

    You have a choice of 2 decisions, reinstate the claim from August as she retained worker status or decide the claim from April as a “work seeker”. I think the Feb application is not at issue, you have stated the decision that she no longer qualified was notified in March so I’m going to assume the decision was also made in March, so all you have is the application in April.

    There are differing views on this particular scenario because the EU regs and 2006 EEA regs are a little different.

    EU law, DIRECTIVE 2004/38/EC, states you retain worker status if:

    he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a jobseeker with the relevant employment office;

    OR

    he/she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a job-seeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months;

    UK law, I(EEA) Regs 2006 adds to this by stating:

    A person who is no longer working retains the status if

    (iii) he can provide evidence that he is seeking employment in the United Kingdom and has a genuine chance of being engaged.

    An EEA worker seeker has R2R but fails HRT, if not in receipt of JSA(IB), until they find work[This to me means people that have never worked in the UK before]. In your case, with all the facts you have stated, I would probably be looking to reinstate the claim because this particular claimant obviously has a genuine chance of being engaged. The bit I would be worried about is if the unemployment was voluntary.

    #108092
    stevedaymond
    Participant

    I have to disargee with Kay on the April point. Worker status must be retained and once lost can not be regained simply by signing as a jobseeker. After leaving the jobmarket (if that happened) in August, at the point she signed as a jobseeker in January she is re-entering the labour market as a jobseeker and would be ineligible.

    It will be down to your judgement and how you read the regs.

    #108094
    Kay_Tade
    Participant

    Like I said others may differ and as steve says you can make up your mind on the issue.

    This thread shows the differing views and may help make up your mind one way or the other, albeit it’s in another context, it is about the same issue.

    A8 and temporary absence

    #108310
    Amanda JB
    Participant

    Thanks Kay and Steve. Still slightly confused but I am getting there

    I am going to write to customer today to ask her why she did not return to work in August 2010 when her maternity leave ended as it seems this is the main deciding factor in deciding if she retained workers ststus and became a work seeker.

    Just to put the dates into perspective now:

    26.05.10 to 20.08.10 Partner won jsa appeal so on JSA(IB) as she was a worker until her maternity leave ended
    26.10.10 to 05.11.10 she was awarded JSA(CONT) so she was a work seeker
    05.11.10 she made a claim for I/S but it was refused as she had to be available for work, this was only notified to her on 01.12.10
    18.01.11 she is awarded JSA(CONT) again

    So from Steve post am I right in thinking that once a workers status is lost (ie not a work seeker etc) it cannot be resumed. So if we decided after 20.08.10 she lost her workers status and we do not accept the delay between then and October, we cannot resume her workers status once she becomes a work seeker? Similiary with the gap between 01.12.10 (notification from DWP) and signing on again 18.01.11

    We seem to have 2 significant gaps 20.08.10 to 26.10.10 & 01.12.10 to 18.01.11

    Also if DWP now pay her JSA(IB) once her (CONT) ends, can we assume they have allowed her to retain her workers status so we can follow suit and go back and revise our decisions from August 2010?

    #108636
    Amanda JB
    Participant

    Hi

    I have received more information from the appellant.

    She resigned from her job in Aug 10 as her employer would not allow her flexible working hours, she felt she could not return to full time employment as her child was too young and problems with child care etc etc (baby born Nov 09)

    She signed on as a work seeker on 26.10.10 as she was looking for p/time work.
    She signed off 05.11.10 as DWP told her to claim I/S, which she was refused (that old chestnut).
    After a period of confusion she signed on again 18.01.11 and she is looking for full time as her baby is older.

    So it seems like the period in quesiton is if the date between 20.08.10 and 16.10.10 is reasonable for her to retain her workers status as I think the days between 05.11.10 and 18.01.11 are down to confusion with DWp

    So even though she left her job was she still unvolunterily unemployed as her employer would not accommodate her request for part time hours and accept the delay as reasonable?

    Thank you for all youe help with this

    #108645
    Kay_Tade
    Participant

    [quote=Amanda JB]So even though she left her job was she still unvolunterily unemployed as her employer would not accommodate her request for part time hours and accept the delay as reasonable?[/quote]

    I think it all boils down to the evidence you have. If she can show she satisfies the EEA regs, for retaining worker status, then fine. I am a bit worrried about the voluntary bit though. It would take a little bit of convincing to say and show, that from Aug to Oct, she satisfies those conditions. Looking at the whole picture I would probably argue she does do that.

    #108649
    Anonymous
    Guest

    CH/3314/2005, Judge Rowland’s problem child, has a bit to say about “involuntary” unemployment. The facts were approximately as you describe in your case – child care could not be fitted around working hours. The case says that the question is not whether you jumped or were pushed, it is whether you remain in the job market. You can say “This job doesn’t suit me anymore, I will find another one where the hours are more flexible”. But you should also be registered with the unemployment office, which might be a difficulty for her between August and October. The same decision tells us that you don’t have to be signing on for JSA. DWP is currently challenging this in the Elmi case (endlessly postponed, now due to be heard in October) but as things stand it is possible to be reghistered as a job seeker if you have expressed a desire to work during some contact with DWP, say in the context of an Income Support claim. But in the absence of any contact with DWP at all, I don’t think the registration requirement will be satisfied.

    Among all the detail you have provided, everything seems to be a bit quiet during that key period. Are we to assume that they just struggled by on Child Benefit and Tax Credits (which they shouldn’t have had either of course, but we cannot answer for HMRC)? I must say I am struggling to see how ther gap can be bridged. And unfortunately everything else tumbles with that domino: lost worker status August to October means she has the lesser status of job seeker from October; cannot get HB as a job seeker unless on JSA(ib) – but not on JSA(ib) because JSA(c) in payment. Will not qualify for HB until JSA(c) runs out (any day now) but will qualify as long as she is now awarded JSA(ib).

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