Right to Reside UC retaining self employed status

Hi All

I’m looking at a case where the client stopped self employed work in November due to ill health and claimed UC in March.
The DWP are arguing that
1. he wasn’t self employed (he was) and
2. even if he was self employed, the gap between working and claiming UC means that he does not satisfy the rules to retain self-employed status.

the Regs say

(4) A person who is no longer in self-employment must continue to be treated as a self-employed person provided that the person—

(a)is temporarily unable to engage in activities as a self-employed person as the result of an illness or accident;
(b)is in duly recorded involuntary unemployment after having worked as a self-employed person in the United Kingdom for at least one year provided the person—
(i)has registered as a jobseeker with the relevant employment office; and
(ii)satisfies conditions D and E;
(c)is in duly recorded involuntary unemployment after having worked as a self-employed person in the United Kingdom for less than one year, provided the person—
(i)has registered as a jobseeker with the relevant employment office; and
(ii)satisfies conditions D and E;
(d)is involuntarily no longer in self-employment and has embarked on vocational training; or
(e)has voluntarily ceased self-employment and has embarked on vocational training that is related to the person’s previous occupation.
(4A) A person to whom paragraph (4)(c) applies may only retain self-employed person status for a maximum of six months.

(4B) Condition D is that the person—

(a)entered the United Kingdom as a self-employed person or in order to seek employment as a self-employed person; or
(b)is present in the United Kingdom seeking employment or self-employment, immediately after enjoying a right to reside under sub-paragraphs (c) to (e) of the definition of qualified person in paragraph (1) (disregarding any period during which self-employed status was retained pursuant to paragraph (4)(b) or (c)).
(4C) Condition E is that the person provides evidence of seeking employment or self-employment and having a genuine chance of being engaged.]

I can see that a jobseeker needs to register ‘immediately’ in order to retain self-employed status but I cannot see that a person who would be covered by 4(a) has such a requirement.

Am I missing something?

Thanks in advance.

No you aren’t. Undue delay can defeat a claim to be able to rely on retention of worker status as a person who is in ‘duly recorded’ involuntary unemployment and who has registered themselves as a work-seeker (see SSWP v MK (ESA) [2013] UKUT 163 (AAC) and FT v LB Islington (HB) & SSWP (JSA) [2015] UKUT 121 (AAC)) but delay in claiming is completely irrelevant to reliance on retention as a result of incapacity (or under St Prix rights for that matter c.f. what a DM said in a decision notice I was recently looking at).

The difference is that retaining status by being a work-seeker is dependent on claiming benefit for that purpose. Retaining status as a result of temporary incapacity has nothing to do with whether or not you even claim a benefit at all - it just depends on whether you are in fact sick. Your client could have retained their status as a worker without ever claiming UC; so what sense does it make to describe them as having ‘delayed’ their claim?

See also: https://www.rightsnet.org.uk/forums/viewthread/13399/

Brilliant, thanks Elliot