jsa rapid reclaim, esa, eea national and housing benefit

[AnnaR.]

I'll explain the situation and maybe someone can give me some advice. I was on jsa until the end of January (I had been on jsa for two years, and I was on the work programme as well). At the end of January I applied for esa, and I am now still waiting for a decision maker to decide on my habitual residence test. I haven't received any money yet, as I have not been awarded esa because of the habitual residence test which I'm told can take as much time as needed. My housing benefit has continued to be paid because I informed my local council when I switched to esa, and so far I have continued to receive payments.

 

For these two months I have been looking for a part-time job without success so far, and living off my savings. Today I went to the CAB who told me there's this new law which starts tomorrow 1st of April, which says if I go back to claiming jsa now I won't be receiving any housing benefit payments for the first three months.

 

I asked her about making a rapid reclaim, but she told me even though my rapid reclaim is still within the 26 week period, the fact that I stopped the jsa claim in order to claim esa may be a problem for the jsa rapid reclaim to go through, and be treated as a new claim. She says I can do a jsa rapid reclaim only if the reason why I signed off was because I found work.

 

She told me the best course of action would be to stay waiting for the esa habitual residency test outcome (even though she told me I'm very unlikely to pass the test), because at least I'm still having my housing benefit payments, and get a part-time job asap.

 

I think that's a good option however I have been to several interviews and have had no success so far. Which doesn't mean I won't be successful tomorrow. But I am in doubt about the rapid reclaim. I am in doubt about whether maybe I should make a quick decision today and apply for a rapid reclaim since the new law doesn't start until tomorrow april 1st, would it make any difference?

 

Would my rapid reclaim be accepted even if I signed off to claim esa, and not be affected by the new law regarding housing benefit-eea nationals? If my rapid reclaim were accepted then, would my housing benefit be affected by this new law?

 

Any help is very welcome and appreciated.

[Beatrice Bee]

[ATTACH=CONFIG]49965[/ATTACH]I am an EU migrant on IB-JSA and HB. Been in the UK for nine years now.

 

You will lose your right to get HB if you make a new HB claim as a Jobseeker. If you move, you have to move within the same borough as it will be treated as a change of circumstance [change of address] and not as a new claim. Moving to a new borough means making a new HB claim from the new borough and the law says from 1st April EU migrants on IB-JSA are not eligible for HB unless they already have a HB & JSA claim awarded on 31st March 2014.

 

As a Jobseeker, you will keep your HB entitlement if on 31/03/2014 you are in receipt of JSA and HB. You can keep your HB as a Jobseeker until you make a new HB claim or until you lose your JSA, whichever is the soonest. It is a saving clause in the new legislation.

 

Otherwise EU migrant Jobseekers are not eligible for HB from 1st April 2014 and you are only classified as a Worker if right before the date of the benefit claim you have been earning at least £150pw for at least three months. Otherwise [if earning less], you are classified as a Jobseeker even if working part-time and not seeking a job.

 

EU migrant Workers are eligible for HB, even after 1st April. Mind you, you have to earn at least £150pw for three months to be classified as a Worker for benefit purposes.

 

If you sign on and claim JSA right after losing your job, you retain your Worker status and eligible for HB as well as JSA.

 

Please apply for benefit in advance at the Jobcentre saying you are experiencing financial hardship because the ESA decision is taking too long. State ESA claim date and amount of cash you have.

 

They pay short-term benefit advance to claimants who are likely to be awarded the original benefit they claimed but the decision takes long and they need the money. Ask for a claim form at the JCP.

 

Please tell all EU migrants you know [your friends] the above info to warn them about losing their HB if they move out of the borough [if they fall into the Jobseeker category].

 

Rapid reclaim is not that quick: took me 3 weeks to get the money. When they award you ESA, they pay a lump sum in arrears going back to the date of the claim.

 

EU migrant Jobseekers are not eligible for ESA. You can only get ESA if you are a Worker and unable to work due to illness or injury.

 

The new law about HB is complex but not that difficult to understand if you read through it.

 

Two weeks ago the DWP published and sent out a circular to the local councils about EU migrants' HB entitlements from 1st April. And about the criteria who is to be deemed a Worker / Self-Employed / Jobseeker. Au-pairs are Workers if you have a [written] long-term agreement, even if you get less than £150pw [value of board and lodging is over £100pw].

 

Short-term employment agreements mean you have to keep looking for a job and will be classed as a Jobseeker [while doing the temp job] so get a 6-12 months written contract to avoid being denied benefits later on. If you voluntarily give up your employment or get dismissed for gross misconduct: no JSA for 6 months so never give up a job if you want to claim JSA.

 

You acquire a permanent right to reside in the UK after living here for 5 years according to EU rules which means for the five years you have to fall into the categories below:

 

- Worker [paying taxes & NI aka legally employed]

- Jobseeker [registered with the JCP immediately after losing job and signing on]

- Student [with full sickness insurance you took out] and enough money to support yourself [bank statement as evidence]

 

After five years residing in the UK as above, you can apply for British Citizenship. For up to 6 months in each year, you can be out of the UK during the 5 years: it does not affect your permanent right to reside, which is important, because if you acquire this right or citizenship, you are exempt from the restrictions imposed by the new law called The Housing Benefit (Habitual Residence) Amendment Regulations 2014.

 

It says no HB if your only right to reside in the UK is a Jobseeker [iB-JSA]. From 1st April no HB if claiming IB-JSA unless the saving clause saves you [thank you, Government].

 

If you are on ESA, it means you retain your Worker status for at least 6 months after becoming unable to work and not working because of illness. If you worked for at least 12 months right before claiming ESA / JSA, you retain your Worker status indefinitely.

 

It is difficult to get contribution-based JSA as they look at the two relevant tax years to see if you paid enough or been credited with enough Class 1 NI contributions. CB-JSA is for 6 months only.

 

My fear is that you may lose your HB if you claim JSA now because EU migrant Jobseekers are only eligible for HB if they are in receipt of both JSA and HB on 31/03/2014.

 

There is such a thing as a linking period btwn claims when two claims for the same benefit are treated as one claim. Definitely if no more than 7 days break in a JSA claim. About the 12 or 13 week linking period you need to ask Citizens Advice if for HB purposes you would be ok to claim JSA now.

 

What CAB told you is not the full picture. They said no HB for first three months during JSA? That's incorrect. No benefits at all after coming to the UK during the first three months is correct. And no HB to new JSA claimants from 1st April at all, not just during the first 3 months of IB-JSA.

 

Make sure the job you get pays at least £150pw otherwise you are classed as a Jobseeker and no HB if you make a new claim in the future. Each year the amount goes up a few pounds so nail a job paying minimum £160pw to cover the increase next year.

 

A word of warning about JSA: JCP sanctions claimants for next to nothing and for unfair reasons, like for not attending a JCP appointment when they do not even send a letter about it. Sanction means loss of benefit for weeks on end, even for the British it is hard to evade the JCP sanctioning 800,000 claimants in a year so you better off working if you can.

 

You will keep getting HB as a Worker if you stay in the same borough. Report the council the change of circumstances [change of income] immediately when applicable. They adjust the amount of HB payable.

 

You will pass the habitual residence test if you have provided enough evidence that right before the benefit claim date you were resident in the UK for 3 months: bank statements, letters to your address, tenancy agreement, bills, P45, pay slips, statement from your landlord if no tenancy agreement. Just the three months they want so provide hard evidence for the continuous three months residence.

 

I am not an experienced nor a qualified adviser so you better off reading the info below before you ask Citizens Advice again. You were a Jobseeker before claiming ESA and as far as I know, EU migrant Jobseekers are not eligible for ESA. If so, the council will ask you to repay the HB you were getting while claiming ESA.

 

http://www.legislation.gov.uk/uksi/2014/539/contents/made

 

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/299052/a6-2014.pdf

 

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/283507

/m-1-14.pdf

[ATTACH=CONFIG]49966[/ATTACH]

[Beatrice Bee]

https://www.gov.uk/government/news/minimum-earnings-threshold-for-eea-migrants-introduced

 

Look at the chart about benefit entitlements on the link above. It says no ESA to EU migrant Jobseekers so your eligibility will depend on whether you have retained Worker status.

 

Like I said, you retain Worker status if you sign on as Jobseeker immediately after losing your job [maybe a few days after is ok, but if there is a period of a month, the status is likely to be lost].

 

You also retain Worker status if you are unable to work due to illness and claim ESA / Statutory Sick Pay while in employment. Several months or years after losing your job you can not claim ESA, as far as I know. The UK will not keep EU migrant Jobseekers who are unable to work due to illness so no ESA to Jobseekers which you were right before claiming ESA.

 

After the initial three months in the UK, to have a right a reside you have to be exercising one of your treaty rights (Worker, Jobseeker, Student, Self-sufficient person with evidence of enough funds).

 

Sorry but it does not look good for the ESA claim. Nor for the HB if you claim JSA now. You should have stayed on JSA, it seems. I think what the CAB adviser meant is you will not be deemed habitually resident for ESA purposes [because EU Jobseekers are not eligible for ESA}.

 

I done the Work Programme myself, was easy, they did not give me any trouble. On the Post Work Programme Support now it looks like they are after JSA claimants and the requirements are set to make them fail. Eg daily log in to Universal Jobmatch and sanction if you fail to log in daily.

 

You say you were looking for part-time jobs during the past two months, which makes you a jobseeker. ESA criteria is limited capability to work aka unable to work due to illness or injury.

 

I wanted to go on ESA myself but then found out that not eligible as a Jobseeker. Advisers sometimes talk rubbish. One said not British, no benefits. Google ESA eligibility until you find out.

 

During the first three months of initial residence you do not have to fall into any category to have a right to reside in the UK as long as you have a valid EU ID / passport. Freedom of movement.

 

The reasoning behind no ESA to EU migrant Jobseekers: unable to work due to illness then not a Jobseeker anymore and no right to reside in the UK unless it is during the initial 3 months. They won't deport anyone if they fail the right to reside test but simply state no right to reside for ESA or what they said to me in 2011: no right to reside for HB so no HB was given because DWP took 8 months to award me JSA and HB got suspended due to no evidence of income [JSA allowance letter is evidence of income].

 

The British will be very happy to see us realizing we get no HB. So instead of claiming JSA and HB, these migrants will take whatever jobs now and there will be more unemployment for the British as we have to work for less. Wages will be undercut even more.

 

Benefit tourism is a term invented by the government to blame everything on migrants. Let's hope the next IT system designed for the Universal Credit will not fail because the first one did and £40 million was written off. That's more than migrants get in benefits, innit.

 

Stay in the borough to keep your HB.

[Beatrice Bee]

The few words which make tens of thousands of EU migrant jobseekers ineligible for HB:

 

"Amendment of the Housing Benefit Regulations 2006

 

2. (1) In regulation 10(3B) of the Housing Benefit Regulations 2006(1)—

 

(a) omit the “or” following sub-paragraph (i);

 

(b) in sub-paragraph (k) omit “, an income-based jobseeker’s allowance”;

 

© after sub-paragraph (k) add—

 

“;or

 

(l) in receipt of an income-based jobseeker’s allowance and has a right to reside other than a right to reside falling within paragraph (3A).”.

 

Saving

 

3. (1) The amendment in regulation 2 does not apply to a person who, on 31st March 2014, is entitled to—

 

(a) housing benefit; and

 

(b) an income-based jobseeker’s allowance,

 

until the first of the events in paragraph (2) occurs.

 

(2) The events are—

 

(a) the person ceases to be entitled to that income-based jobseeker’s allowance; or

 

(b) the person makes a new claim for housing benefit."

 

The whole thing has to be read in view of Treaty Rights. To get HB for a new claim from 1st April HB Regulations wants you to be on CB-JSA, working earning over £150pw or having a permanent right to reside. Or on ESA retaining Worker status.

 

OP is entitled to IB-JSA as of today 31st March 2014 because been resident in the UK during the past three months. The only thing is: no JSA claim has been made yet so no entitlement for 31/03/2014 to be covered by the saving clause to have HB on IB-JSA. First 3 days of a claim is a waiting period for which no JSA is awarded.

 

Got 30 mins before midnight to make a claim today as backdating is usually not allowed. First need to sign off the sick to be able to claim JSA so quite a task. Government is winning, it seems.

[AnnaR.]

Thanks for your very informative three posts Beatrice Bee, they are truly very much appreciated.

 

Yes, I can see now I should have stayed on jsa. However, without going into details the reason my gp signed me off was I became genuinely ill and was unable to leave bed and function for most of the week, because I couldn't physically move. I was unfortunately completely uninformed and unaware of the new law starting today, but the truth is, even if I had been aware, I wouldn't have been able to do a jsa rapid reclaim before now since I was very ill and would most likely have had to miss appointments, not to mention the incapability to look for work as required when being a jobseeker. Now, for the past two weeks and after new treatment received at hospital thankfully I began to feel well enough on most days to do some jobsearch, and applied for a few part-time jobs, with a view to either finding part-time work and go off esa immediately, or to go back to jsa and continue to jobsearch.

 

I suppose my best option now is to continue doing my best at recovering and jobsearching for part-time jobs and hope to start work asap. As you say a rapid reclaim for jsa would leave me homeless, and at the very least I want to keep having a home. You say "Stay in the borough to keep your HB.", do you know if a change in rent amount to pay is something that might be a problem to keep my HB, as my landlord wants to slightly increase my rent from next month, and I will have to sign a new contract? I am also not sure at all about my status right now with regards to my HB, it's not clear to me, as in February I got a new award for HB based on my change of circumstance (esa claim).

 

I'd like to ask you, based on the new law do you think if I find work now, which hopefully I will, will I continue to receive HB or will I stop receiving it and have to wait three months to receive it again (after working and meeting the Minimum Earnings Threshold?

 

And what would be the case for a friend who is also an eea national in receipt of jsa and hb, if he he finds work soon, will his HB be stopped as well until he works for three months?

Many thanks in advance.

[Beatrice Bee]

Please read attached HB circular to see what council HB staff is to do.

 

You will be fine even if amount of rent changes, just submit the new tenancy agreement to be photocopied.

 

Only take a job that pays minimum £153pw and provides a 12 month written contract. Sign on immediately if you lose the job to retain HB with a retained Worker status. Short-term work means you keep looking for work and you are classified as a Jobseeker while doing the temp job so no unless absolutely necessary.

 

Move within the borough only to avoid suspension or disallowance of HB. Current borough is unlikely to suspend your HB for 3 months after you start working. If the HB Circular does not say so then they won't.

 

Reading the info on the links above you will know where you stand and less stress means you get better sooner.

 

The UK ignored the EU case law saying worker status can not be determined by the amount earned but work has to be genuine and effective as opposed to marginal and ancillary.

 

DWP says it is not genuine and effective unless getting £153pw. If it is not applied to the British.. EC Directive says no discrimination btwn member state workers..

 

It won't be overturned for a couple of years as a case would need to reach Brussels after going through the British courts. Don't know if a judicial review can be done or would be called for. Earn £153pw for three months before getting the same in-work benefits as the British is not that harsh so we have to live with it.

[Beatrice Bee]

The same out of work benefits, I meant. In-work benefits are the same already. Hence the UK desperate to define what genuine and effective work is. Member states are not allowed to define Worker status so Britain came up with "earn at least £153pw otherwise you are a Jobseeker and not eligible for HB".

[Beatrice Bee]

They are not allowed to define the meaning of Worker. Define status they do. Language barriers so read the links, not my blurb.

[**Margaret**]

:Benefits and Migrants:

 

There is a lot of very complex and interwoven legislation to determine entitlement to United Kingdom benefits for migrants. And consequently, unlimited potential for mistakes if the rules are not interpreted correctly.

 

Consequently, any 'legal advice' offered by contributors to CAG should be checked by professionally trained advisers; Citizens Advice, Welfare Rights, Solicitors, Etcetera.

 

Margaret.

[AnnaR.]

Thank you for your new replies Beatrice Bee. I have been very sick and completely unable to be on the computer for a few days. To my surprise today I have received a job offer to work only three days a week, which is something I think I could at least try to manage, with a long term contract and just within the Minimum Earning Threshold. However I have been told the contract itself would be of 8 hours per week, even though I would actually be working 24. I am not sure what to do and wanted to receive some advice, because I am thinking if the contract is for 8 hours but in my payslip it will state I have worked 24, then would the payslips be enough proof that I am working within the Minimum Earnign Threshold and therefore retaining Worker status, or do I need for the contract to be 24 hours as well?

 

Thanks in advance for any replies.