Jsa to Esa claim - DWP is overloading me with documents to provide - self employed

[MoonTop]

Hello again.

 

I don't if it's relevant about how long you have lived here because I don't really understand the rules myself. Have you paid NI here or the equivalent in France please?

 

HB

 

In my previous post I have quoted the "Income-related ESA" part because I have not contributed enough (I got sick from 2007 (when I was contributing) and since 2009 I was trying to work as self-employed (but not enough earning)).

Edited January 13, 2013 by MoonTop

[MoonTop]

I have received a 'response' from DWP today and I start asking myself if I should not submit my case to the court directly since DWP seems to have decide to increase my hardship (and if possible make homeless).

 

This is summary of my situation:

 

I have made an esa claim in december 2012 but I have received yesterday a decision from DWP that i believe is unfair since they have removed/ignored some of the information provided to them in goal to 'fit' their decision.

 

Below are some further information provided in my ESA claim and follower by the letter received by DWP.

 

Thanks in advance for your help,

 

------------------------------------------------------------------------------------------------------

 

I came to UK in 2006 and worked for UKCompanyZ.

I have been made redundant in 2007 and self supported as had redundancy package.

I have been assaulted in 2007 (crime reference number: xxxxxxx) and illegally evicted (I was just asking to have hot water in the accomodation before i make the next payment).

 

After these events I went to Paris in september 2007 for hospital treatment because I felt it was easier with the language and needed a break due to my headache that had started worsening.

 

I was living in hotel in Paris so money ran out fast and I claimed the French equivalent of jobseekers allowance and also did some private tutoring. I saw several specialists for my chronic severe headache but they did not found any solution for my sickness.

 

I also did some research as the best type of company for me to work for in the UK due my sickness.

 

Due to banking problems jobs became scarce.

 

In 2009 I set up as self employed - company registered in London and I was travelling between London and Paris because I got two contractors jobs in Paris which lasted from september 2010 to december 2010 and from march 2011 to august 2011.

 

On August 2011, I had to resign from the second contract since my health had worsened and was not able to work.

 

I made a claim for jobseekers allowance in December 2011 andC Job Centre had advised me that I had satisfied the habitual residence test. However, as I am an EEA national and a 'self-employed person', I have a right to reside in UK and therefore satisfy the right to reside requirement for each of the relevant benefits. Also, I am normally exempt from the habitual residence test.

 

 

Please find below DWP response while they have removed/ignored some information provided in goal to make my claim to fail.

The DWP decision letter :

 

YYYYY

EU Decision Maker

EU Decision Making Government Buildings Girnigoe Street

Wick

KW14 4HJ

WWW.Gov. UK

Ref: /

29-Jan-2013

Dear Mr XXX

We're writing to tell you that unfortunately you're not entitled to Employment & Support Allowance (Income Related). This is because we have decided that you do not meet the requirements for the right to reside test and therefore for benefit purposes only you're not considered to be habitually resident in the UK.

The regulations we used to make our decision are:

Regulation 70(1) and (2) of the Employment and Support Allowance Regulations 2008 Regulation 6(1) of the Immigration (EEA) Regulations 2006

If your circumstances change, you can make a new benefit claim. You can do this by contacting us on 0800 055 66 88.

What happens next?

If you want us to explain more about this decision, please see the next page of this letter. It explains what to do if you think our decision is wrong.

Yours sincerely

YYYYY

EU Decision Maker

 

 

Part 3 — Decision for Employment & Support Allowance (Income Related)

 

 

SUMMARY OF FACTS

 

Mr XXX, a French national, came to the UK on 15/03/2006. Mr XXX's UK employment history has been given as:

Please note they have removed the fact that I worked for more than a year for an UK company (2006 - 2007) and been make redundant while being sick.

 

Self-employed Financial Services from 25/11/2009 to 31/08/2012 (the date is wrong since I remain my self-employed status at the moment); currently not working due to sickness.

The local office decision maker has decided that Mr XXX is not gainfully self-employed and he does not have an open Class 2 National Insurance Liability on eNirts.

He claimed Employment & Support Allowance (Income Related) from 27/12/2012.

Decision

On the evidence provided, I have decided that from 27/12/2012 Mr XXX does not have a right to reside in the UK and consequently cannot be treated as habitually resident because he is not a qualified person as defined by regulation 6(1) or (2) or (3) of the Immigration (European Economic Area) Regulations 2006.

The above right to reside and habitual residence decision was made in accordance with regulation 70(1) and (2) of the Employment and Support Allowance Regulations 2008.

 

 

Name : YYYYY

Office : Saltcoats EU Decisions

Date : 29/01/13

Submitted by Greenock BC (inconsistency with the address on the header of the letter: ‘EU Decision Making Government Buildings Girnigoe Street Wick, KW14 4HJ’)

 

Signature : NOT SIGNED (I also suspect a fake/misleading document)

Initials.:

 

If you think our decision is wrong

If you think our decision is wrong, please get in touch with Jobcentre Plus within one month of the date of the decision letter. If you contact us later, we may not be able to help you.

You, or someone else who has the authority to act on your behalf, can:

• ask us to explain our decision

• ask us to write to you with the reasons for our decision

• ask us to look at our decision again (you may think we have overlooked some facts or you may have more information to give us which affects our decision), or

• appeal against our decision to an independent tribunal (but this must be in writing). You can do any of the actions listed above, or you can do all of them.

To contact us, see the details on the front of this letter. You can also ask for a copy of a leaflet about appealing against a decision.

 

What happens if you ask us to look at the decision again?

If we can change the decision, we will send you a new decision. If we can't change the decision, we will send you a letter telling you why. You will have one month from the date of that letter to appeal if you still disagree with the decision.

 

How to appeal

Your appeal must be in writing. You must tell us which decision your appeal is against, and give your reasons for the appeal.

Please send your appeal to the address on the front of this letter. Your appeal will be heard by an independent appeal tribunal.

Edited February 2, 2013 by MoonTop

[estellyn]

I have received a 'response' from DWP today and I start asking myself if I should not submit my case to the court directly since DWP seems to have decide to increase my hardship (and if possible make homeless).

 

This is summary of my situation:

 

I have made an esa claim in december 2012 but I have received yesterday a decision from DWP that i believe is unfair since they have removed/ignored some of the information provided to them in goal to 'fit' their decision.

 

Below are some further information provided in my ESA claim and follower by the letter received by DWP.

 

Thanks in advance for your help,

 

--------------------------------------------------------------------------------------------------------------------------------------

 

The DWP decision letter :

 

YYYYY

EU Decision Maker

EU Decision Making Government Buildings Girnigoe Street

Wick

KW14 4HJ

WWW.Gov. UK

Ref: /

29-Jan-2013

Dear Mr XXX

We're writing to tell you that unfortunately you're not entitled to Employment & Support Allowance (Income Related). This is because we have decided that you do not meet the requirements for the right to reside test and therefore for benefit purposes only you're not considered to be habitually resident in the UK.

The regulations we used to make our decision are:

Regulation 70(1) and (2) of the Employment and Support Allowance Regulations 2008 Regulation 6(1) of the Immigration (EEA) Regulations 2006

If your circumstances change, you can make a new benefit claim. You can do this by contacting us on 0800 055 66 88.

What happens next?

If you want us to explain more about this decision, please see the next page of this letter. It explains what to do if you think our decision is wrong.

Yours sincerely

YYYYY

EU Decision Maker

 

 

Part 3 — Decision for Employment & Support Allowance (Income Related)

 

 

SUMMARY OF FACTS

 

Mr XXX, a French national, came to the UK on 15/03/2006. Mr XXX's UK employment history has been given as:

Please note they have removed the fact that I worked for more than a year for an UK company (2006 - 2007) and been make redundant while being sick.

 

Self-employed Financial Services from 25/11/2009 to 31/08/2012 (the date is wrong since I remain my self-employed status at the moment); currently not working due to sickness.

The local office decision maker has decided that Mr XXX is not gainfully self-employed and he does not have an open Class 2 National Insurance Liability on eNirts.

He claimed Employment & Support Allowance (Income Related) from 27/12/2012.

Decision

On the evidence provided, I have decided that from 27/12/2012 Mr XXX does not have a right to reside in the UK and consequently cannot be treated as habitually resident because he is not a qualified person as defined by regulation 6(1) or (2) or (3) of the Immigration (European Economic Area) Regulations 2006.

The above right to reside and habitual residence decision was made in accordance with regulation 70(1) and (2) of the Employment and Support Allowance Regulations 2008.

 

 

Name : YYYYY

Office : Saltcoats EU Decisions

Date : 29/01/13

Submitted by Greenock BC (inconsistency with the address on the header of the letter: ‘EU Decision Making Government Buildings Girnigoe Street Wick, KW14 4HJ’)

 

Signature : NOT SIGNED (I also suspect a fake/misleading document)

Initials.:

 

If you think our decision is wrong

If you think our decision is wrong, please get in touch with Jobcentre Plus within one month of the date of the decision letter. If you contact us later, we may not be able to help you.

You, or someone else who has the authority to act on your behalf, can:

• ask us to explain our decision

• ask us to write to you with the reasons for our decision

• ask us to look at our decision again (you may think we have overlooked some facts or you may have more information to give us which affects our decision), or

• appeal against our decision to an independent tribunal (but this must be in writing). You can do any of the actions listed above, or you can do all of them.

To contact us, see the details on the front of this letter. You can also ask for a copy of a leaflet about appealing against a decision.

 

What happens if you ask us to look at the decision again?

If we can change the decision, we will send you a new decision. If we can't change the decision, we will send you a letter telling you why. You will have one month from the date of that letter to appeal if you still disagree with the decision.

 

How to appeal

Your appeal must be in writing. You must tell us which decision your appeal is against, and give your reasons for the appeal.

Please send your appeal to the address on the front of this letter. Your appeal will be heard by an independent appeal tribunal.

 

From what you've written, it seems as if you don't have permanent right of residence for benefit purposes as you were out of the country for more than 6 months in one year. When you claimed JSA you had right to reside for benefit purposes due to being a workseeker, so they did not need to consider permanent residence.

 

It appears that although you can qualify for ESA as a worker, based on being incapable of work for a short time due to illness, the DWP are questioning that you are a self employed worker. Are you registered with HMRC as self employed? Do you pay national insurance? Do you complete tax returns? To challenge the decision you will need to show that you are officially a self employed worker.

 

Not sure what you are saying about 'fake/misleading document', it sounds like a typical dWP decision to me.

[MoonTop]

From what you've written, it seems as if you don't have permanent right of residence for benefit purposes as you were out of the country for more than 6 months in one year.

During which time? they only time when I was I left the country for more than 6 months was in 2007 and that was due sickness and to medical investigation (after I have been assaulted in UK).

 

When you claimed JSA you had right to reside for benefit purposes due to being a workseeker, so they did not need to consider permanent residence.

They make me an habitual residential test at that time that I succeed.

 

It appears that although you can qualify for ESA as a worker, based on being incapable of work for a short time due to illness, the DWP are questioning that you are a self employed worker. Are you registered with HMRC as self employed? Do you pay national insurance? Do you complete tax returns? To challenge the decision you will need to show that you are officially a self employed worker.

 

Not sure what you are saying about 'fake/misleading document', it sounds like a typical dWP decision to me.

 

I have set up a limited company in 2009 and tried at the first time to manage it as a director of the company (not just a self employed because I was not able to work during a whole day due to my sickness) but due the crisis I had no choice to start contractor role [from which the first one has been ended by the client when they noticed my difficulty to articulate was increasing (due to my chronic headache)]. I did not contribute due to the fact that I had earned less than £5995 [but I am not sure about this (my accountant was a bit negligent (had forgotten several tasks to do but was charging me each months)]...http://www.hmrc.gov.uk/working/intro/class2.htm#2

 

Not sure what you are saying about 'fake/misleading document', it sounds like a typical dWP decision to me.

My doubt was due to the unusual heading of the letter (the address (I am really not familiar with this)).

 

However, I have received today a second letter (this time with Job Centre address at the top of the letter) saying :

We cannot pay you because you have not paid, or been credited with, enough National Insurance Contributions and;

Your are not getting an income-related amount because: you have as much money coming in as the law says you need to live on.

Edited February 2, 2013 by MoonTop

[MoonTop]

According to this page (especially the paragraph quoted below) http://www.dwp.gov.uk/international/benefits/employment-and-support/, the 'right to reside' is independent from paying enough national insurance contribution.

 

Income-related ESA

 

If you have not paid enough National Insurance contributions, you may be able to claim income-related ESA, depending on your income and capital. You must satisfy the habitual residence test by being habitually resident and having a right to reside in the UK, Channel Islands, the Isle of Man or the Republic of Ireland.

EEA nationals who work in the UK and their family members are exempt from the habitual residence test, but their work must be registered with the Home Office Worker Registration Scheme if they are nationals of the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland, Slovenia or the Slovak Republic. Nationals of Bulgaria or Romania are either subject to the Worker Authorisation Scheme or must hold a registration certificate.

[estellyn]

From the letter you quoted you had writte to the dWP, it sounds like you were out of the country from 2007 to 2009 - if you have been in the UK for five continuous years since 2007 (as a qualified person, for instance worker or workseeker), then you need to point this out to the DWP in your appeal, giving them dates and proof. If you can do this it would establish right of permanent residence and ESA should be awarded.

 

The other way would be to show you are still self employed - send tax returns, proof of your certificate of small earnings (which you are required to apply for if your earnings are under the NI limit while self employed), details of the self employed work you have been doing recently - contracts, invoices etc.

 

As I said before, the rules are different for JSA - you automatically get right to reside for benefit purposes due to being a workseeker - something which you cannot qualify under while claiming ESA. There is also the possibility that your JSA claim calls into question your claim to be currently self employed - was there a gap between the JSA and ESA claims?

[estellyn]

According to this page (especially the paragraph quoted below) http://www.dwp.gov.uk/international/benefits/employment-and-support/, the 'right to reside' is independent from paying enough national insurance contribution.

 

You're not really understanding what they said. They're not looking at national insurance contributions to prove benefit entitlement, but are looking at evidence of paying self employed contributions as evidence that you are indeed self employed. If you aren't accepted as having permanent residence, then you have to be a worker with a temporary illness in order to claim income based ESA.

[MoonTop]

The other way would be to show you are still self employed - send tax returns, proof of your certificate of small earnings (which you are required to apply for if your earnings are under the NI limit while self employed), details of the self employed work you have been doing recently - contracts, invoices etc.

 

Is it too late to claim for certificate of small earnings for 2010, 2011 and 2012?

 

As I said before, the rules are different for JSA - you automatically get right to reside for benefit purposes due to being a workseeker - something which you cannot qualify under while claiming ESA. There is also the possibility that your JSA claim calls into question your claim to be currently self employed - was there a gap between the JSA and ESA claims?

 

I was under JSA after a period of three months sickness until December 2012 : I have closed my JSA claim in goal to make the present ESA claim.

 

Ps : A copy of the 2012 self assessment form sent to the HRMC has been sent to DWP.

Edited February 2, 2013 by MoonTop

[estellyn]

Is it too late to claim for certificate of small earnings for 2010, 2011 and 2012?

 

 

 

 

I'm sorry I don't know if this can be done retrospectively, maybe someone familiar with this area can answer this.

[MoonTop]

I'm sorry I don't know if this can be done retrospectively, maybe someone familiar with this area can answer this.

I will also create a separate thread for this purpose.

Edited February 2, 2013 by MoonTop

[jabba jones]

We used to get self employed people paying their stamp late in order to claim IB.

 

They were then subject to a penalty. From memory I think it was 3 months, but that was at least 10 years ago. I don't know if this penalty transferred across to ESA.

[MoonTop]

hello,

It seems that in fact I am a director of limited company (but alone in the company) instead of a self-empoyed person : also class 2 nic is not relevant...but i am not sure.

 

I have just realized that I have made a mistake in my esa form : I had wrongly ticked 'self-employed' instead of 'Employed by an UK employer' (my limited company). But DWP is just using this small mistake to make me loose time.

Edited February 3, 2013 by MoonTop