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  • FIRST POST
    • simonr1603
    • By simonr1603 11th Oct 18, 11:28 AM
    • 11Posts
    • 1Thanks
    simonr1603
    JSA & HRT Again!
    • #1
    • 11th Oct 18, 11:28 AM
    JSA & HRT Again! 11th Oct 18 at 11:28 AM
    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
Page 1
    • pmlindyloo
    • By pmlindyloo 11th Oct 18, 12:16 PM
    • 12,074 Posts
    • 13,917 Thanks
    pmlindyloo
    • #2
    • 11th Oct 18, 12:16 PM
    • #2
    • 11th Oct 18, 12:16 PM
    So what has happened during the last year or so?

    Have you been working?

    Have you been abroad again?
    • simonr1603
    • By simonr1603 11th Oct 18, 12:18 PM
    • 11 Posts
    • 1 Thanks
    simonr1603
    • #3
    • 11th Oct 18, 12:18 PM
    • #3
    • 11th Oct 18, 12:18 PM
    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
    • By pmlindyloo 11th Oct 18, 12:39 PM
    • 12,074 Posts
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    pmlindyloo
    • #4
    • 11th Oct 18, 12:39 PM
    • #4
    • 11th Oct 18, 12:39 PM
    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
    • By simonr1603 11th Oct 18, 12:48 PM
    • 11 Posts
    • 1 Thanks
    simonr1603
    • #5
    • 11th Oct 18, 12:48 PM
    • #5
    • 11th Oct 18, 12:48 PM
    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
    • By Tomsdottir 11th Oct 18, 12:58 PM
    • 47 Posts
    • 29 Thanks
    Tomsdottir
    • #6
    • 11th Oct 18, 12:58 PM
    Jumping fences
    • #6
    • 11th Oct 18, 12:58 PM
    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
    • By simonr1603 11th Oct 18, 1:12 PM
    • 11 Posts
    • 1 Thanks
    simonr1603
    • #7
    • 11th Oct 18, 1:12 PM
    • #7
    • 11th Oct 18, 1:12 PM
    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.
    Last edited by simonr1603; 11-10-2018 at 1:14 PM.
    • Alice Holt
    • By Alice Holt 11th Oct 18, 1:16 PM
    • 2,635 Posts
    • 3,056 Thanks
    Alice Holt
    • #8
    • 11th Oct 18, 1:16 PM
    • #8
    • 11th Oct 18, 1:16 PM
    Put in a compliant?
    https://www.gov.uk/government/organisations/department-for-work-pensions/about/complaints-procedure
    Alice Holt Forest situated some 4 miles south of Farnham forms the most northerly gateway to the South Downs National Park.
    • simonr1603
    • By simonr1603 11th Oct 18, 1:19 PM
    • 11 Posts
    • 1 Thanks
    simonr1603
    • #9
    • 11th Oct 18, 1:19 PM
    • #9
    • 11th Oct 18, 1:19 PM
    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
    • By pmlindyloo 11th Oct 18, 1:37 PM
    • 12,074 Posts
    • 13,917 Thanks
    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
    • By simonr1603 11th Oct 18, 2:01 PM
    • 11 Posts
    • 1 Thanks
    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).
    • _shel
    • By _shel 11th Oct 18, 2:31 PM
    • 1,663 Posts
    • 2,988 Thanks
    _shel
    There is no 3 months law. 3 months relates to some case law which doesn't apply to every case.

    It's an acceptable time and you can gain or lose it in a day. https://www.housing-rights.info/habitual-residence-test.php
    • Tomsdottir
    • By Tomsdottir 11th Oct 18, 2:53 PM
    • 47 Posts
    • 29 Thanks
    Tomsdottir
    The Guardian article will be referring to the 3 month "living in" test which was introduced in 2013 as an amendment to the JSA Regs (reg 85A of the JSA Regs 1996). (The online JSA Regs on the legislation website aren't kept current, so you can find this particular amendment in SI (Statutory Instrument) 2013 No. 3196.)

    This 3 month living in test says that most claimants have to have been living in the CTA for the previous 3 months - that is, the 3 months preceding their claim. The 3 month living in test also applies to child tax credit and child benefit.

    But that's a separate requirement from the habitual residence test, which you'll find referred to in reg 85 of the JSA Regs 1996. This test applies to all of the means tested benefits and not just income based JSA. For income based JSA you have to satisfy the 3 month living in test as well as the habitual residence test (which includes having a right to reside).

    "Habitual residence" is not defined in the regulations (which simply say you must be habitually resident to qualify). Instead its meaning has been worked out in case law, in common with many other key concepts in social security law.
    Last edited by Tomsdottir; 11-10-2018 at 2:56 PM.
    • simonr1603
    • By simonr1603 11th Oct 18, 2:59 PM
    • 11 Posts
    • 1 Thanks
    simonr1603
    On the CAB website it says,

    "You should not be subject to the test if you've simply been abroad on a long holiday. In these cases you should be treated as a 'returning resident'. However, if you've spent three months or more living or working abroad you could find yourself subject to the test when you return to the UK"

    Where/what do they base the three months on?
    Last edited by simonr1603; 11-10-2018 at 3:06 PM.
    • _shel
    • By _shel 11th Oct 18, 3:08 PM
    • 1,663 Posts
    • 2,988 Thanks
    _shel
    On the CAB website it says,

    "You should not be subject to the test if you've simply been abroad on a long holiday. In these cases you should be treated as a 'returning resident'. However, if you've spent three months or more living or working abroad you could find yourself subject to the test when you return to the UK"

    Where do they base the three months on?
    Originally posted by simonr1603
    "Should not" doesn't mean Can not. Your problem now is that you keep leaving the Uk for prolonged periods giving rise to thoughts it's benefits tourism and you are not in fact habitually resident.

    Most of the info you find on the HRT applies to EU nationals in the UK not returning British nationals. Hence the 3 months being quoted.
    • Tomsdottir
    • By Tomsdottir 11th Oct 18, 3:48 PM
    • 47 Posts
    • 29 Thanks
    Tomsdottir
    Not sure what page you're looking at, but the Citizens Advice pages are simply a summary of regulations and case law that take up several large volumes (google Sweet and Maxwell social security law, for example). I assume that what they are getting at is that although you haven't been here for three months (so that it looks as though you may not satisfy the 3 month living in test) it's still the case that some categories of claimants are treated as if they had never left during a temporary absence.
    If someone has been living here for years and they go abroad for a period of three months ( so that they don't appear at first to satisfy the three month living in test when they claim upon their return) and it's obvious from the outset that it's a temporary absence, they may not have lost their habitual residence during that temporary absence. In that situation, they can be treated as though they were actually present during their absence. It's as though they never left
    Consider the following two scenarios:
    Claimant A has been living part of the year here and part of the year in Australia, and this has been the case for 5 years. He hands in his notice at work, gives up his flat, gets rid of all his furniture and goes to Australia on a one way ticket to marry his fiancee. Things don't work out and he returns to the UK just under three months later.
    Claimant B has lived his entire life in the UK. His job sends him to work in France for just under three months, and pay his NI contributions while he is away. He buys a return ticket, gets special leave from his work to take an extended holiday, arranges for a friend to water his plants whilst he's away and keep an eye on his flat.
    It wouldn't be surprising if a decision maker decided that one claimant was subject to the HR test and the other wasn't. (Though these decisions can be challenged by claimants).
    If your library has a copy of the CPAG Welfare Benefits and Tax Credits Handbook you can read about the relevant rules, case law and legislation in detail there (or the Disability Rights Handbook - doesn't just deal with disabled claimants). You can also see the guidance used by decision makers at the DWP themselves by googling "DWP decision makers guide" and looking in volume 2 chapter 7, part 3, which covers the residence and presence tests. This is not an authoritative statement of the law - just the DWP's interpretation, just as the Handbooks cited are an interpretation for claimants.
    • Tomsdottir
    • By Tomsdottir 11th Oct 18, 4:21 PM
    • 47 Posts
    • 29 Thanks
    Tomsdottir
    To save you wading through the entire volume in the decision maker's guide, the most relevant paras are 073729 (returning residents) and 072986 (three month living in test).
    • simonr1603
    • By simonr1603 11th Oct 18, 5:29 PM
    • 11 Posts
    • 1 Thanks
    simonr1603
    The last line of that paragraph

    "This is a different situation to that where a person is temporarily absent from the UK and does not lose their habitual residence during that period of absence."

    I wonder what they are classing as temporarily absent. In Example 1 a 12 week absence was temporary yet my 11 week absence isn't.
    Last edited by simonr1603; 11-10-2018 at 5:34 PM.
    • Tomsdottir
    • By Tomsdottir 11th Oct 18, 6:22 PM
    • 47 Posts
    • 29 Thanks
    Tomsdottir
    But have the DWP actually made a decision that you are not habitually resident or have they just asked for information to allow them to make that decision?
    If you are out of the country before you claim benefit, they have to ask you for information about this to decide whether a) you were habitually resident before you left and if so b) whether the absence was a temporary one. Otherwise, how can they be in a position to decide whether you satisfy the test in the regulations?
    You might be habitually resident, but that's not the same as saying you can't be subjected to the habitual residence test or the three month living in test. You might be a very good driver, but unless you have actually passed the driving test, the DVLA aren't going to be satisfied about that fact. They won't just take your word for it or accept testimonials from all of your passengers (otherwise I would never have passed, I suspect!) You have to take the test to pass it.
    An advice organisation may with good reason tell you that in their opinion you have remained habitually resident based on the information you give them during what was probably quite a probing interview. But how can the DWP determine this? They weren't at your interview at the CAB. They need to gather the same information that the CAB did in order to draw conclusions, and they have specific forms and processes to allow them to do so. They have to ask you for information. In the examples in the DMG, those claimants would also have been given the same forms to complete that you received so that the DM can make a decision.
    The process can be made much less stressful if JC staff are respectful and helpful, explaining what tests are being applied and why. It doesn't sound as though that happened in your case. Sometimes it helps to complain about the way you have been treated - a lot depends on how you feel personally about this. And it can be valuable for JC+ staff to be aware that they are being scrutinized (even if a complaint isn't upheld!) and held to account.
    • tomtom256
    • By tomtom256 11th Oct 18, 7:48 PM
    • 1,035 Posts
    • 1,846 Thanks
    tomtom256
    So you have effectively been out of the country for potentially three - six months in a 12 month period as you have been out of the country for 2 consecutive summers?


    If so this is what is possibly tripping you up as they will be trying to decided if you live in the UK or America full time and what your intentions going forward are.


    I.e. are you doing seasonal work in America in the summer then coming back to claim benefits out of season and then going back to America to work again.
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