JSA & HRT Again!

simonr1603

Hi,

Just over a year ago I posted this seeking advice about whether I should be subject to a HRT test.
(Sorry cant post a link but the title was JSA & HRT Advice)
With your help I was able to argue that I wasn't subject to one.

A year later I'm in exactly the same position the only difference being that the Job Centre have forced me to do one refusing to submit my application for JSA without one.

I did try to argue that exact same points as last year with the manager but the became rude and dismissive.

Any advice on what I should do going forward?
Is there anyway to get the HRT removed from the application?

Many thanks,
Simon

pmlindyloo

So what has happened during the last year or so?

Have you been working?

Have you been abroad again?

simonr1603

Hi yes,
Got a job which ran Nov-June. Wen't back to America for the summer again. This time 80 days in total.

pmlindyloo

In that case they will want to do another HRT so they can determine the dates of your absence and when you will be eligible for JSA.

You just need to go through the due process.

lots of Christmas jobs available at the moment if you want to avoid this.

simonr1603

Thanks for your advice. I thought a HRT only had to be undertook when someone had been out of the country for three months or more.

Tomsdottir

Hallo Simon

Being habitually resident, including having a right to reside is one of the basic qualifying criteria for income based JSA, so the DWP decision maker needs to establish that you satisfy this test in order to qualify for benefit. The fact that a claimant satisfied the test on a previous claim doesn't mean they will satisfy it on a later claim.

I'm sorry I haven't seen your earlier thread so don't know whether you are a British national or an EEA national. If you are a British national, it's likely to be the "old" HR test being applied which simply looks at issues such as how long you have been in the common travel area (the UK, Isle of Man, Channel Islands and Eire) , whether you have made this your centre of interest, and so on. If this is the part of the test being applied to you and nothing has changed since the last time you were asked to provide your details, there's no reason why you wouldn't satisfy the test again. A short absence from the UK, for example, is unlikely to interrupt your habitual residence. If this is the case, you can claim at intervals of one month and appeal every refusal, arguing that since you are a returning resident, you never ceased being habitually resident.

If you are a (non UK) EEA national on the other hand, it may the right to reside part of the HR test which is the issue. (If you go to the Citizens Advice website, you can read about both aspects of the test in detail by typing in "habitual residence test".) Someone might have a "right to reside" as a jobseeker for example, but lose this after several months if they are still unemployed. This often happens if the decision maker decides that you do not have a "genuine prospect of work". They may have to establish a different right to reside in order to qualify for benefit, or alternatively argue that a) they do in fact have a genuine prospect of work or b) that the test is contrary to EU law. Or you might have a right to residence on the basis that you are the family member (eg the partner) of someone who has a right to reside, but then lose this right when you stop being their family member - for example, because you split up with them. These are just two examples of different types of right to reside - there are several others.) So it's not something that, once you have it, stays with you forever, no matter what.

Returning to your question about how to get the DWP to process your claim: a refusal to process a claim is not a decision which is subject to revision or appeal. Instead, you can either complain or seek judicial review of the refusal. However, given that being habitually resident is a normal part of the qualifying criteria for income based JSA, it's by no means certain that either of these approaches will succeed. The best chance of getting benefit into payment is by getting some expert assistance with your claim by an agency such as a CAB or law centre which can advice on the test and the basis on which you might satisfy it.

When it comes to EEA nationals in particular, decision makers may default to deciding that you are a jobseeker and do not qualify for more than a few months of JSA (which you may already have had), ignoring other types of right to reside you may have - for example as the family member of an EEA national who has a right to reside, or (where you have worked for a while) as someone who retains worker status whilst involuntary unemployed and looking for work.

Hope this helps.

simonr1603

Many thanks for this.

For the avoidance of doubt I am a British Citizen. Lived here my whole life, just wen't to visit the US for two summers.

I've spoken to CAB this morning who are adamant that I shouldn't have been forced to do the HRT. It's likely that I will be refused income based JSA as a result of the test, (although hopefully I still qualify for contributions based).

My frustration is that I don't believe that due process has been followed. Both the CAB and an adviser over the phone for the DWP have both said that the threshold is three months. It's only the manager at the JC that says otherwise.

Alice_Holt

Put in a compliant?
https://www.gov.uk/government/organisations/department-for-work-pensions/about/complaints-procedure

simonr1603

Have done Alice. Both about being forced to do one and about how the manager spoke to me. Was made to feel like absolute dirt as I tried to make my case.

pmlindyloo

What questions were you asked at your JSA interview as regards being absence for the summer?

I am trying to rack my brains about this 3 month 'rule' of being absent from GB before they do an habitual residence test. I cannot find any legislation about it. I know CAB mention it on their website.

I am wondering if the manager you spoke to knew little about the HRT as these are usually determined by a Decision Maker and just had a crib sheet of questions which determined that you had been absent form GB for a long period of time and therefore would need to take the HRT.

No need for rudeness I agree.

It would be useful to find the legislation about this so that it gives you something to quote.

Have you actually been back in GB for 3 months or less?

As regards your previous experience it is possible that you met the 3 month rule for residing in GB and 'passed' the HRT this way rather than having been in America for less than 3 months.

Anyone got time to find the legislation?!!!!!!!!!!!

simonr1603

I'm trying to find the guidelines now. The Guardian also have it as three months

"It means that people who travel for more than three months – including gap-year students, graduates and people taking career breaks – are being denied JSA to help them while they find a new job."

Both this year and last my circumstances were exactly the same. Summer absences of 81 days and 80 days. Both applications made within a month of return.

The manager of the JC even phoned up a decision maker, (though she refused to mention that I was away for less that three months).