Showing posts with label EEA workers. Show all posts
Showing posts with label EEA workers. Show all posts
Friday, 14 August 2015
How to solve EU benefits problem: punish the young?
If you've kept your eye on recent developments in the benefits world, you'll know that two groups of people are having a hard time: European migrants to the UK; and young people. So it may or may not come as surprise that, if the BBC is correct, the government is currently considering plans that resolve its need to appear tough on migrants by punishing British young people. Its either a scheme of floundering desperation or breathtaking cynicism. Or possibly both.
Here's the article, if you want to look at it yourself: EU migrant benefit plan 'could hit thousands of young Britons'
Here's the proposal in a nutshell. The government wants to prevent people from Europe from getting any child benefit or tax credits (and, possibly, housing benefit) until they've been in the UK for at least four years. But to meet EU equality rules, these restrictions will also have to be applied to British nationals (and foreign nationals who are settled in the UK). As children cannot get benefits in their own right, the four years start ticking when British people are old enough to claim benefits in their own right. So a young person would be unable to claim these benefits until he or she reaches the age of 22.
Before I comment further, I should reassure you: this is, as far as I can tell, just a proposal: it's not going to affect anything anytime soon. And note that we're only talking about child benefit and tax credits here, not other benefits (yet). But it's still disturbing.
It's important to understand the context here.
The government wants to restrict benefits for EU migrants. The Labour government started the restrictions, by introducing a 'right to reside' test into the rules for many means-tested benefits. Since then there has been a progressive tightening of the rules, with the overall effect that, if you are an EU migrant, you are likely to find it very hard to get any help from the state unless you are actually working or in a short period of job-seeking (for more info about the introduction and development of right to reside rules, have a look at www.benefitsowl.info/abroad-eea-history.html, for information about how this pans out in practice, check out www.benefitsowl.info/abroad-eea-cit.html)
But it's hard to restrict entitlement further. One of the basic principles of the European Union is that it is a free market: there must be no restriction to the movement of goods, services, and labour between member states. This means that no country can make it harder for people from another EU state to work than its own citizens. David Cameron, and others, have made a lot of noise about renegotiating the treaty rules to change this, but it's hard to see how this can happen: logically it defeats the object of the EU, and practically many other countries object strongly to any restriction of this kind.
So, unsurprisingly, lawyers have advised the government that making EU citizens wait until they have been in the UK for four years would be unlawful: 'Imposing additional requirements on EU workers that do not apply to a member state's own workers constitutes direct discrimination which is prohibited under current EU law'.
According to the BBC, the government has responded to this by proposing making everyone wait four years before they can claim child benefit and tax credits.
The frustrating thing about all this is that this isn't really about a rational response to a real problem: the evidence is that migrants bring more money into the country than they take in benefits (see, for example, http://www.theguardian.com/uk-news/2014/nov/05/eu-migrants-uk-gains-20bn-ucl-study). Instead it's about political manoeuvring and pandering to UKIP and some elements of the press. This new proposal seems almost purpose built to divide and rule - set young British people against EU migrants. I hope, and believe, that this won't happen, and even dare to hope that it has the opposite effect.
An odd thing that is missing here, either in the government's thinking or the BBC's reporting of it, is Universal Credit (UC). By the time any change of this sort came into force UC would have presumably replaced tax credits for new claimants anyway. I presume that the child-related parts of Universal Credit would be removed for the first four years. But I cannot be sure.
If these changes were to go through, the young people who would suffer would be the ones with children. How would they cope, or be expected to cope? Who knows? And what about the children: how does this proposal square with the proclaimed intention to reduce child poverty?
A government spokeswoman approached by the BBC declined to speculate on the matters raised. But, at the risk of pushing the boat of my opinion a bit too far out, I ask this: what have young people done, for the government to be apparently willing to sacrifice their wellbeing to satisfy the imagined needs of bigots and xenophobes?
Thursday, 23 October 2014
The EU and David Cameron - some observations
On 20th October David Cameron was visiting the Ford motor plant in Dagenham, and said this:
'What we need in Britain is a renegotiation of our relationship with the EU and then a referendum where the British people decide do we stay in this reformed organisation or do we leave it.
'That’s what I will pursue, that’s what I will deliver, and at the heart of that renegotiation we need to address people’s concerns about immigration. I’m very clear about who the boss is, about who I answer to and it’s the British people. They want this issue fixed, they are not being unreasonable about it, and I will fix it.'
(Source: The Guardian: http://www.theguardian.com/world/2014/oct/20/eu-leaders-conservative-plan-free-movement-cap-migrants-barroso)
This statement, and others like it, left me angry, but also perplexed. On many of the matters raised, Cameron is either being disingenuous, or he is deluded.
So instead of a tiresome rant, I'm going to try to look, calmly, at the facts.
Firstly, an encouraging fact: at least for me. According to a recent IPSOS-MORI poll, support for staying in the EU is currently at its highest level since 1991: 56% of Britons are in favour of staying in the EU, against 36% who want to leave.
Of course, this doesn't ncessesarily mean that all of the 56% who want to stay are completely happy with the status quo, but it does suggest that the image presented by Cameron of an angry majority demanding radical reform is exaggerated.
Next, let's look at this issue of 'renegotiation of our relationship with the EU'.
For once, I agree with Nigel Farage:
'It is impossible to change the free movement of peoples within Europe without a fundamental treaty change with 27 other European countries. Nobody wants it, nobody is interested, and the prime minister knows it's not possible.'
(Source: The BBC: http://www.bbc.co.uk/news/uk-politics-29642604)
Freedom of movement for workers, and those seeking work, is a fundamental principle of the European Union. It was part of the original treaty of Rome that set up the (then) EEC in the first place, and can now be found as Article 45 of the Treaty on the Functioning of the European Union (TFEU). This is what it says:
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;
(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in regulations to be drawn up by the Commission.
Note that this gives freedom of movement, not just to people who are actually working, but those who move to another member state in order to look for work.
The only room for manoeuvre available to the government, as far as I can see, is provided by the qualifier at the beginning of paragraph 3: 'subject to limitations justified on grounds of public policy, public security or public health'. However, it is not clear that this allows sweeping restrictions that act against the spirit of the Article as a whole. This position appears to be supported by the fact that in the resultant legislation, the government uses the phrase quoted in a way that is clearly intended to refer to individuals (see, for example, Regulation 21 in The Immigration (European Economic Area) Regulations 2006).
There is a strange doctrinal conflict in the opposition to the principle of free movement. The most strident arguments against the principle seem to come from the conservative end of the political spectrum. As a rough generalisation, right wing thinkers tend to favour a free market, 'laissez faire', economic system. It is arguable that the EU is a textbook example of a this philosophy in action. And yet the proponents of this approach don't seem to like it so much when it doesn't work the way they want it to. If the free market is so great, why is it not appropriate to apply it to individuals looking for work?
However, whatever position you adopt on the matter, it's undeniable that there is net migration from other EU countries to the UK. But even here, the facts aren't quite how they are portrayed.
Here's a typical recent headline:
'One million MORE migrants will flood Britain before EU vote, warns Farage'
(Source: The Express: http://www.express.co.uk/news/uk/524125/EXCLUSIVE-One-million-MORE-migrants-will-flood-Britain-before-EU-vote-warns-Farage)
The argument seems plausible. The report states that net migration is currently 243,000 people per year. The referendum is due in three years' time. It follows from this that at that point the number of additional migrants will reach... 729,000. OK, that's not a million, but we won't quibble about the odd 271,000.
The figure quoted by Farage is correct, and comes from the Migration Statistics Quarterly Report, August 2014, from the Office of National Statistics. However it needs a bit of unpicking. Firstly, the figure quoted is for all migration, not just that from the EU, which accounts for 131,000 of the total.
Secondly, we need to ask: is the figure of 131,000 typical for recent years? Is it part of a trend? And if it is, where is the trend going? These are tricky questions to answer, partly because the figures from the ONS have a high (but specified) degree of uncertainty*. Here's a chart showing net EU migration over the last ten years.
(The error bars are based on the ONS data: according to their analysis, there is a 95% probability that the actual figure lies within the range.)
To be fair to the Euro-sceptics, and even allowing for the uncertainty in the data values, there is an apparent upwards trend over the last couple of years. The last three data points suggest that this increase has stabilised, but at around 130,000. The trend doesn't coincide with any of the big changes in access to the UK market: The last major change before then was April 2011, when the A8 countries (The Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia, and Slovenia) were given full access to the UK labour market.
On the other hand, a Europhile might argue that it's not possible to extrapolate a clear trend from this data, and would also note that the mean migration rate over both the first five years and the second five years is almost identical, at about 87,000.
In fact you could make either argument from the figures: the truth is we don't know. But I'd be reluctant to embark on major treaty reform on the basis on these figures.
It's also important to look at the bigger picture, that of the overall population growth of the UK. Again, according to the ONS (this time the Annual Mid-year Population Estimates, 2013, published in June 2014), the UK population reached 64.1 million by mid-2013, an increase of 401,000 since mid-2012.
Based on the mean EU migration rate quoted above, it follows that entire net EU migration over the last ten years represents just 1.4% of the current population.
But let's look breakdown the population growth into categories.
The majority of the increase is accounted for by natural change (births minus deaths). EU migration accounts for just over a quarter of the total. It's worth noting, also, that half of the EU migration is accounted for by citizens of the pre-enlargement EU states.
So, yes, EU migration does contribute to the pressure on our housing stock, transport infrastructure, and other resources, but not as much we contribute ourselves.
Conclusions
I have not considered two other issues at all. One is the reality of the restrictions currently faced by EU migrants in the UK: if you want more information about this, have a look at my website - http://www.benefitsowl.info/abroad-eea-cit.html
The other is a question that is rarely considered at all: why is it a given that net migration from the EU is necessarily bad?
I'll leave that hanging in the air.
*The raw migration data (which I've used for this post) is available from a link within the Migration Report, and also here: http://www.ons.gov.uk/ons/rel/migration1/migration-statistics-quarterly-report/august-2014/rft-table-1---provisional-estimates.xls
'What we need in Britain is a renegotiation of our relationship with the EU and then a referendum where the British people decide do we stay in this reformed organisation or do we leave it.
'That’s what I will pursue, that’s what I will deliver, and at the heart of that renegotiation we need to address people’s concerns about immigration. I’m very clear about who the boss is, about who I answer to and it’s the British people. They want this issue fixed, they are not being unreasonable about it, and I will fix it.'
(Source: The Guardian: http://www.theguardian.com/world/2014/oct/20/eu-leaders-conservative-plan-free-movement-cap-migrants-barroso)
This statement, and others like it, left me angry, but also perplexed. On many of the matters raised, Cameron is either being disingenuous, or he is deluded.
So instead of a tiresome rant, I'm going to try to look, calmly, at the facts.
Firstly, an encouraging fact: at least for me. According to a recent IPSOS-MORI poll, support for staying in the EU is currently at its highest level since 1991: 56% of Britons are in favour of staying in the EU, against 36% who want to leave.
Of course, this doesn't ncessesarily mean that all of the 56% who want to stay are completely happy with the status quo, but it does suggest that the image presented by Cameron of an angry majority demanding radical reform is exaggerated.
Next, let's look at this issue of 'renegotiation of our relationship with the EU'.
For once, I agree with Nigel Farage:
'It is impossible to change the free movement of peoples within Europe without a fundamental treaty change with 27 other European countries. Nobody wants it, nobody is interested, and the prime minister knows it's not possible.'
(Source: The BBC: http://www.bbc.co.uk/news/uk-politics-29642604)
Freedom of movement for workers, and those seeking work, is a fundamental principle of the European Union. It was part of the original treaty of Rome that set up the (then) EEC in the first place, and can now be found as Article 45 of the Treaty on the Functioning of the European Union (TFEU). This is what it says:
1. Freedom of movement for workers shall be secured within the Union.
2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;
(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in regulations to be drawn up by the Commission.
Note that this gives freedom of movement, not just to people who are actually working, but those who move to another member state in order to look for work.
The only room for manoeuvre available to the government, as far as I can see, is provided by the qualifier at the beginning of paragraph 3: 'subject to limitations justified on grounds of public policy, public security or public health'. However, it is not clear that this allows sweeping restrictions that act against the spirit of the Article as a whole. This position appears to be supported by the fact that in the resultant legislation, the government uses the phrase quoted in a way that is clearly intended to refer to individuals (see, for example, Regulation 21 in The Immigration (European Economic Area) Regulations 2006).
There is a strange doctrinal conflict in the opposition to the principle of free movement. The most strident arguments against the principle seem to come from the conservative end of the political spectrum. As a rough generalisation, right wing thinkers tend to favour a free market, 'laissez faire', economic system. It is arguable that the EU is a textbook example of a this philosophy in action. And yet the proponents of this approach don't seem to like it so much when it doesn't work the way they want it to. If the free market is so great, why is it not appropriate to apply it to individuals looking for work?
However, whatever position you adopt on the matter, it's undeniable that there is net migration from other EU countries to the UK. But even here, the facts aren't quite how they are portrayed.
Here's a typical recent headline:
'One million MORE migrants will flood Britain before EU vote, warns Farage'
(Source: The Express: http://www.express.co.uk/news/uk/524125/EXCLUSIVE-One-million-MORE-migrants-will-flood-Britain-before-EU-vote-warns-Farage)
The argument seems plausible. The report states that net migration is currently 243,000 people per year. The referendum is due in three years' time. It follows from this that at that point the number of additional migrants will reach... 729,000. OK, that's not a million, but we won't quibble about the odd 271,000.
The figure quoted by Farage is correct, and comes from the Migration Statistics Quarterly Report, August 2014, from the Office of National Statistics. However it needs a bit of unpicking. Firstly, the figure quoted is for all migration, not just that from the EU, which accounts for 131,000 of the total.
Secondly, we need to ask: is the figure of 131,000 typical for recent years? Is it part of a trend? And if it is, where is the trend going? These are tricky questions to answer, partly because the figures from the ONS have a high (but specified) degree of uncertainty*. Here's a chart showing net EU migration over the last ten years.
(The error bars are based on the ONS data: according to their analysis, there is a 95% probability that the actual figure lies within the range.)
To be fair to the Euro-sceptics, and even allowing for the uncertainty in the data values, there is an apparent upwards trend over the last couple of years. The last three data points suggest that this increase has stabilised, but at around 130,000. The trend doesn't coincide with any of the big changes in access to the UK market: The last major change before then was April 2011, when the A8 countries (The Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia, and Slovenia) were given full access to the UK labour market.
On the other hand, a Europhile might argue that it's not possible to extrapolate a clear trend from this data, and would also note that the mean migration rate over both the first five years and the second five years is almost identical, at about 87,000.
In fact you could make either argument from the figures: the truth is we don't know. But I'd be reluctant to embark on major treaty reform on the basis on these figures.
It's also important to look at the bigger picture, that of the overall population growth of the UK. Again, according to the ONS (this time the Annual Mid-year Population Estimates, 2013, published in June 2014), the UK population reached 64.1 million by mid-2013, an increase of 401,000 since mid-2012.
Based on the mean EU migration rate quoted above, it follows that entire net EU migration over the last ten years represents just 1.4% of the current population.
But let's look breakdown the population growth into categories.
The majority of the increase is accounted for by natural change (births minus deaths). EU migration accounts for just over a quarter of the total. It's worth noting, also, that half of the EU migration is accounted for by citizens of the pre-enlargement EU states.
So, yes, EU migration does contribute to the pressure on our housing stock, transport infrastructure, and other resources, but not as much we contribute ourselves.
Conclusions
- Firstly, the majority of British citizens appear to want to stay in the EU.
- Secondly, the concept of renegotiating our relationship with the EU so as to restrict access to the UK for EU nationals doesn't seem to have any connection with reality.
- Thirdly, although there is net UK migration into the UK, the actual figures are complex, open to misreading, and provisional.
- Fourthly, EU migration accounts for only about a quarter of recent population growth (assuming the figures for year ending June 2013 are typical.
I have not considered two other issues at all. One is the reality of the restrictions currently faced by EU migrants in the UK: if you want more information about this, have a look at my website - http://www.benefitsowl.info/abroad-eea-cit.html
The other is a question that is rarely considered at all: why is it a given that net migration from the EU is necessarily bad?
I'll leave that hanging in the air.
*The raw migration data (which I've used for this post) is available from a link within the Migration Report, and also here: http://www.ons.gov.uk/ons/rel/migration1/migration-statistics-quarterly-report/august-2014/rft-table-1---provisional-estimates.xls
Monday, 17 March 2014
EEA nationals - the changes summarised
You would have to be living in a closed monastic order not to aware of the furore about European migrants over the last few months, apparently precipitated by the removal of restrictions for Bulgarian and Romanian nationals on 1st January 2014. Whether the government was responding to public concern - as expressed in some parts of the media - or opinion was being shaped by a government agenda is not clear, at least to me, but what we can be certain of is that a lot of legal changes have been applied to European citizens in the UK.
I will try and hide my own opinions about all this for this post. My aim, instead, is to summarise the main details of all the different changes, and where all this leaves European Economic Area (EEA) migrants in the UK today when it comes to claiming social security benefits.
For a more detailed, and possibly more accessible, description, please read my web site pages on this subject, which have been subject to considerable reworking over the last few weeks:
http://www.benefitsowl.info/abroad-eea-cit.html for general information about the rules for EEA citizens in the UK
http://www.benefitsowl.info/abroad-eea-history.html for a brief history lesson covering developments for EEA citizens in the UK up to the present.
The changes I will be looking at are:
Removal of restrictions for Bulgarian and Romanian nationals
When these two countries joined the European Union on 1st January 2007 the UK got a special concession, or derogation, which allowed it to impose extra restrictions on people from these countries. The key right of freedom of movement for workers was, in effect, watered down. Romanians and Bulgarians could come here to work, but only in certain types of work and only in a strictly regulated way. They also were not allowed, in effect, to claim Jobseeker's Allowance and any other benefits that result from that (like Housing Benefit), until they had worked for at least a year (they were allowed to claim appropriate benefits if they were working, such as Child Benefit, Child Tax Credit, and Housing Benefit).
EU law does not allow this kind of derogation to continue for more than 7 years, so the British government had no choice but to end the restrictions[1]. They therefore now have the same rights as citizens of other EEA member states.
From 1st January, therefore, Bulgarians and Romanians can take up any employment that's available, and, if they get a job but later lose it, they will be able to claim Jobseeker's Allowance.
Had there been no other legal changes, they would also be able to claim Jobseeker's Allowance before they found their first job, but this is now not possible for EEA migrants anyway, as you will see.
Three months residence requirement for Jobseeker's Allowance claimants
From 1st January 2014 anyone claiming Jobseeker's Allowance will not be treated as habitually resident, and therefore unable to get Jobseeker's Allowance, until they have been in the UK for three months[2].
Although this change was presumably brought in as a reaction to the feared 'influx' of Bulgarian and Romanian jobseekers, it applies to all new entrants, including UK citizens who have been abroad for a while.
In practice, the effect of this change is likely to be marginal, as even under the previous rules it was not unusual to have to wait for three months to satisfy the habitual residence test anyway.
Tougher rules for Jobseeker's Allowance claimants for EEA nationals
This is where is gets a bit tricky; partly because the underlying legislation is extraordinarily labyrinthine, and partly because (paradoxically) some of the key terms are very poorly defined.
The government describes the changes as follows (from its press release):
'After 3 months [see above], migrants will also have to take a stronger, more robust test if they want to claim income-based JSA.
In order to pass the improved Habitual Residence Test migrants will have to answer more individually tailored questions, provide more detailed answers, and submit more evidence before they will be allowed to make a claim. For the first time, migrants will be asked about what efforts they have made to find work before coming to the UK and whether their English language skills will be a barrier to them finding employment.
If they pass the Habitual Residence Test, EEA jobseekers will then only be able to claim JSA for 6 months. After 6 months, only those who have compelling evidence that they have a genuine chance of finding work will be able to continue claiming.'
Frustratingly, none of the following aspects of this are laid out in the legislation[1]:
There are also a number of issues related to the distinction between people who are defined as jobseekers and those defined as workers who are 'involuntarily unemployed' (but are also jobseekers), and how people move between these definitions. This feeds into the new rules about Housing Benefit (see below).
Minimum earning threshold for EEA migrants
As stated in a previous post (http://benefitsowl.blogspot.co.uk/2014/02/a-busy-week-for-benefit-watchers-part-2.html) I actually disagree with some other commentators in that I think this is probably a change for the better. The change may be a useful clarification, and doesn't, as the change is worded, restrict anyone's rights compared to what they were before.
The clarification has not come in the form of any new law, but as a memo added to the Decision Makers Guide (Memo DMG 1/14). It uses something called the 'minimum earnings threshold', which is, broadly speaking, the amount you need to earn before you have to pay class one National Insurance Contributions (£153 for 2014/15). The guide says that if an employee or a self-employed person has been earning at least this for the three months before a claim for benefit is made they will 'automatically' be considered a worker. If this test is not satisfied, the decision maker 'will need to examine each case as a whole, taking account of all circumstances, to determine whether the EEA national’s activity was genuine and effective'. This second bit is what the DWP was supposed to be doing with all EEA worker claimants anyway, before this memo.
So for people who have been earning above the minimum earnings threshold they can be certain that they will be treated as workers. Those who are earnings less will continue to be assessed as they were before.
Note that this guidance is unlikely to be applicable to people claiming Jobseeker's Allowance, Income Support, or Employment and Support Allowance, as they won't normally fit the rules for these benefits anyway, but will be relevant to claimants of Housing Benefit and Universal Credit.
Restrictions to Housing Benefit for some Jobseeker's Allowance claimants
This change comes in later than the others, on 1st April 2014.
The main effect of the new law is that although new EEA arrivals in the UK may be able to get Jobseeker's Allowance after three months, but even then they will not normally be entitled to Housing Benefit. On the other hand, an EEA resident in the UK who has been working, and then loses their job, will be able to get Housing Benefit with their new claim for Jobseeker's Allowance.
That might seem reasonable enough (or perhaps not). But there is another problem, related to my final comments in the section on 'tougher rules...' above.
The way in which the law preferentially targets newer arrivals is by removing access to Housing Benefit from 'plain' jobseekers, as opposed to workers who have become unemployed.
This needs some explanation. The treaty of Rome, which created the then European Community, gave freedom of movement to workers. It also included the freedom to move between European countries to seek work. However subsequent European directives have made it clear that these two freedoms are not equal. The effect is that EU countries, such as the UK, have more obligations to workers than to work seekers.
Furthermore, the EU requires that workers do not lose their 'worker' status for at least six months if they lose a job, provided that they register as a jobseeker.
The upshot of all this is that people who claim Jobseeker's Allowance and want Housing Benefit will be able to get it if they are regarded as worker, and won't if they aren't.
But here's the thing. Ex-working jobseekers will not be able to have the 'worker' status indefinitely. In accordance with EU law anyone who was employed for less than a year does not have to be treated as worker after they have been off work for six months. They will then become an 'ordinary' jobseeker, and therefore lose the right to Housing Benefit.
And even people who have worked for more than a year in the UK risk losing their right to Housing Benefit after six months unless they can 'provide compelling evidence that [they are] continuing to seek employment and [have] a genuine chance of being engaged'.
So we could be seeing people who have been in the UK a while, have taken up tenancies, and will lose their ability to get Housing Benefit if they are unemployed for too long.
I note that the legislation creating this restriction was neither referred to Parliament's Social Security Advisory Committee (SSAC), nor were the proposals sent out to consultation, as 'it appears to [the Secretary of State] that by reason of the urgency of the matter it is inexpedient to do so'. This is disturbing.
Conclusion
You might wonder why most of these changes seem to be targeted as jobseekers (and workers) and nobody else. The reason is simple. Most EEA migrants to the UK who are not in the labour market are not entitled to any income-based benefits already.
People in the labour market will need to get used to a regime where no benefits are available until they get work, and where they will not be able to rely on retaining benefits for more than six months of unemployment.
Having said that, some of the changes (the initial three month prohibition on claiming Jobseeker's Allowance, for example) are not as significant as they appear: it is hard to escape the feeling that they were introduced to give an impression of action.
Nevertheless the changes do matter, and people will undoubtedly experience hardship and anxiety because of them.
[1] The Immigration (EEA)(Amendment)(No.2) Regulations 2013
[2] The Jobseeker's Allowance (Habitual Residence) Amendment Regulations 2013
[3] The Housing Benefit (Habitual Residence) Amendment Regulations 2014
I will try and hide my own opinions about all this for this post. My aim, instead, is to summarise the main details of all the different changes, and where all this leaves European Economic Area (EEA) migrants in the UK today when it comes to claiming social security benefits.
For a more detailed, and possibly more accessible, description, please read my web site pages on this subject, which have been subject to considerable reworking over the last few weeks:
http://www.benefitsowl.info/abroad-eea-cit.html for general information about the rules for EEA citizens in the UK
http://www.benefitsowl.info/abroad-eea-history.html for a brief history lesson covering developments for EEA citizens in the UK up to the present.
The changes I will be looking at are:
- Removal of restrictions for Bulgarian and Romanian nationals
- Three months residence requirement for Jobseeker's Allowance claimants
- Tougher rules for Jobseeker's Allowance claimants for EEA nationals
- Minimum earning threshold for EEA migrants
- Restrictions to Housing Benefit for some Jobseeker's Allowance claimants
First, though, in case you haven't got the time to check out those links, there are two key concepts you need to be aware of:
- 'Habitual residence': in essence, if a claimant come to the UK to live, they are generally barred from claiming means-tested benefits until the state is satisfied that they are really intending to stay here, and not just visit. This applies to UK citizens who have lived abroad as well as to EEA nationals. When a person has become habitually resident is decided as a case by case basis, but it normally takes between about one and three months.
- 'Right to reside': Since 2004, the UK government will not regard a person as being habitually resident unless they have a right to reside here. This lets British citizens off the hook, but is a real problem for people from the EEA. The rules setting out who has the right to reside are extraordinarily complex: however it's safe to say that, in general, workers do have this right, as freedom of movement for workers is enshrined in the original treaty setting up the European Union.
Note: in the rest of this post, when I write Jobseeker's Allowance you should take this to mean income based Jobseeker's Allowance unless otherwise stated. There are no restrictions on claiming contribution based Jobseeker's Allowance, but in general most recent migrants are not able to get this.
Removal of restrictions for Bulgarian and Romanian nationals
When these two countries joined the European Union on 1st January 2007 the UK got a special concession, or derogation, which allowed it to impose extra restrictions on people from these countries. The key right of freedom of movement for workers was, in effect, watered down. Romanians and Bulgarians could come here to work, but only in certain types of work and only in a strictly regulated way. They also were not allowed, in effect, to claim Jobseeker's Allowance and any other benefits that result from that (like Housing Benefit), until they had worked for at least a year (they were allowed to claim appropriate benefits if they were working, such as Child Benefit, Child Tax Credit, and Housing Benefit).
EU law does not allow this kind of derogation to continue for more than 7 years, so the British government had no choice but to end the restrictions[1]. They therefore now have the same rights as citizens of other EEA member states.
From 1st January, therefore, Bulgarians and Romanians can take up any employment that's available, and, if they get a job but later lose it, they will be able to claim Jobseeker's Allowance.
Had there been no other legal changes, they would also be able to claim Jobseeker's Allowance before they found their first job, but this is now not possible for EEA migrants anyway, as you will see.
Three months residence requirement for Jobseeker's Allowance claimants
From 1st January 2014 anyone claiming Jobseeker's Allowance will not be treated as habitually resident, and therefore unable to get Jobseeker's Allowance, until they have been in the UK for three months[2].
Although this change was presumably brought in as a reaction to the feared 'influx' of Bulgarian and Romanian jobseekers, it applies to all new entrants, including UK citizens who have been abroad for a while.
In practice, the effect of this change is likely to be marginal, as even under the previous rules it was not unusual to have to wait for three months to satisfy the habitual residence test anyway.
Tougher rules for Jobseeker's Allowance claimants for EEA nationals
This is where is gets a bit tricky; partly because the underlying legislation is extraordinarily labyrinthine, and partly because (paradoxically) some of the key terms are very poorly defined.
The government describes the changes as follows (from its press release):
'After 3 months [see above], migrants will also have to take a stronger, more robust test if they want to claim income-based JSA.
In order to pass the improved Habitual Residence Test migrants will have to answer more individually tailored questions, provide more detailed answers, and submit more evidence before they will be allowed to make a claim. For the first time, migrants will be asked about what efforts they have made to find work before coming to the UK and whether their English language skills will be a barrier to them finding employment.
If they pass the Habitual Residence Test, EEA jobseekers will then only be able to claim JSA for 6 months. After 6 months, only those who have compelling evidence that they have a genuine chance of finding work will be able to continue claiming.'
Frustratingly, none of the following aspects of this are laid out in the legislation[1]:
- details of the 'stronger, more robust,' test;
- what 'evidence' will be required;
- what evidence will be required to meet the threshold of 'compelling'.
There are also a number of issues related to the distinction between people who are defined as jobseekers and those defined as workers who are 'involuntarily unemployed' (but are also jobseekers), and how people move between these definitions. This feeds into the new rules about Housing Benefit (see below).
Minimum earning threshold for EEA migrants
As stated in a previous post (http://benefitsowl.blogspot.co.uk/2014/02/a-busy-week-for-benefit-watchers-part-2.html) I actually disagree with some other commentators in that I think this is probably a change for the better. The change may be a useful clarification, and doesn't, as the change is worded, restrict anyone's rights compared to what they were before.
The clarification has not come in the form of any new law, but as a memo added to the Decision Makers Guide (Memo DMG 1/14). It uses something called the 'minimum earnings threshold', which is, broadly speaking, the amount you need to earn before you have to pay class one National Insurance Contributions (£153 for 2014/15). The guide says that if an employee or a self-employed person has been earning at least this for the three months before a claim for benefit is made they will 'automatically' be considered a worker. If this test is not satisfied, the decision maker 'will need to examine each case as a whole, taking account of all circumstances, to determine whether the EEA national’s activity was genuine and effective'. This second bit is what the DWP was supposed to be doing with all EEA worker claimants anyway, before this memo.
So for people who have been earning above the minimum earnings threshold they can be certain that they will be treated as workers. Those who are earnings less will continue to be assessed as they were before.
Note that this guidance is unlikely to be applicable to people claiming Jobseeker's Allowance, Income Support, or Employment and Support Allowance, as they won't normally fit the rules for these benefits anyway, but will be relevant to claimants of Housing Benefit and Universal Credit.
Restrictions to Housing Benefit for some Jobseeker's Allowance claimants
This change comes in later than the others, on 1st April 2014.
The main effect of the new law is that although new EEA arrivals in the UK may be able to get Jobseeker's Allowance after three months, but even then they will not normally be entitled to Housing Benefit. On the other hand, an EEA resident in the UK who has been working, and then loses their job, will be able to get Housing Benefit with their new claim for Jobseeker's Allowance.
That might seem reasonable enough (or perhaps not). But there is another problem, related to my final comments in the section on 'tougher rules...' above.
The way in which the law preferentially targets newer arrivals is by removing access to Housing Benefit from 'plain' jobseekers, as opposed to workers who have become unemployed.
This needs some explanation. The treaty of Rome, which created the then European Community, gave freedom of movement to workers. It also included the freedom to move between European countries to seek work. However subsequent European directives have made it clear that these two freedoms are not equal. The effect is that EU countries, such as the UK, have more obligations to workers than to work seekers.
Furthermore, the EU requires that workers do not lose their 'worker' status for at least six months if they lose a job, provided that they register as a jobseeker.
The upshot of all this is that people who claim Jobseeker's Allowance and want Housing Benefit will be able to get it if they are regarded as worker, and won't if they aren't.
But here's the thing. Ex-working jobseekers will not be able to have the 'worker' status indefinitely. In accordance with EU law anyone who was employed for less than a year does not have to be treated as worker after they have been off work for six months. They will then become an 'ordinary' jobseeker, and therefore lose the right to Housing Benefit.
And even people who have worked for more than a year in the UK risk losing their right to Housing Benefit after six months unless they can 'provide compelling evidence that [they are] continuing to seek employment and [have] a genuine chance of being engaged'.
So we could be seeing people who have been in the UK a while, have taken up tenancies, and will lose their ability to get Housing Benefit if they are unemployed for too long.
I note that the legislation creating this restriction was neither referred to Parliament's Social Security Advisory Committee (SSAC), nor were the proposals sent out to consultation, as 'it appears to [the Secretary of State] that by reason of the urgency of the matter it is inexpedient to do so'. This is disturbing.
Conclusion
You might wonder why most of these changes seem to be targeted as jobseekers (and workers) and nobody else. The reason is simple. Most EEA migrants to the UK who are not in the labour market are not entitled to any income-based benefits already.
People in the labour market will need to get used to a regime where no benefits are available until they get work, and where they will not be able to rely on retaining benefits for more than six months of unemployment.
Having said that, some of the changes (the initial three month prohibition on claiming Jobseeker's Allowance, for example) are not as significant as they appear: it is hard to escape the feeling that they were introduced to give an impression of action.
Nevertheless the changes do matter, and people will undoubtedly experience hardship and anxiety because of them.
[1] The Immigration (EEA)(Amendment)(No.2) Regulations 2013
[2] The Jobseeker's Allowance (Habitual Residence) Amendment Regulations 2013
[3] The Housing Benefit (Habitual Residence) Amendment Regulations 2014
Tuesday, 25 February 2014
A busy week for benefit watchers... (Part 2)
In my last post, I looked at developments (mostly bad) with regard to the bedroom tax and the benefit cap.
In this post, I'll look at
Food Poverty
In my post of 23rd December last year (http://benefitsowl.blogspot.co.uk/2013/12/the-food-bank-debate.html) I noted that the government has commissioned Warwick University to write a report about food poverty, but had been sitting on the report for months.
The report has finally been published, possibly partly as a result of a campaign by 38 degrees.
The Guardian comments on the report's release here: www.theguardian.com/society/2014/feb/20/food-bank-review-undermines-ministers-claim
The report itself is available here: www.gov.uk/government/uploads/system/uploads/attachment_data/file/283071/household-food-security-uk-140219.pdf
To be honest, the report isn't that earth-shattering, and in fact raises more questions than it answers. Much of the material in the report is based on findings from a Rapid Evidence Assessment (REA), essentially a meta-analysis of more detailed research, often from other countries. However some original work was also done. The writers are frank about the limitations of the project.
The report confirms that providers of food aid report an increased demand, and that this appears to be driven by 'on-going problems of low income, rising food (and other) costs and increasing indebtedness'. It says that 'there is no systematic evidence on the impact of increased supply and hypotheses of its potential effects are not based on robust evidence'. This looks to me like subtle criticism of the argument (advanced by ministers) that more people are using food banks because more food banks are available.
If ATOS is replaced by another company tomorrow, that company will still be applying the same rules. The medical assessors will still be required to complete the same flawed (ESA85) forms, and, crucially, they will still be working under the same set of government priorities. In some respects ATOS has provided a useful smokeshield for the government, obscuring the reality that it is government policy that is the main problem.
The problems with ATOS may give some respite to ESA claimants in the short-term, though. The benefitsandwork.co.uk website reports that the DWP has instructed its staff not to refer any more repeat cases for medical assessments for the time being.
Restrictions for EEA Workers
The treaty of Rome and subsequent EU directives give freedom of movement to workers. The question this leaves is, of course: what is a worker? Until we have relied on the principle that the work must be 'genuine and effective'. The government has now given DWP offices new guidance as to how this should be determined.
The government's press release on the change says:
'Migrants from the European Economic Area (EEA) who claim to have been in work or self-employed in order to gain access to a wider range of benefits will face a more robust test from 1 March 2014'. [www.gov.uk/government/news/minimum-earnings-threshold-for-eea-migrants-introduced]
This sounds like another draconian restriction is coming in, but, having looked at the details, I think that it might actually be a useful clarification, and doesn't, as the change is worded, restrict anyone's rights compared to what they were before.
The clarification has not come in the form of any new law, but as a memo added to the Decision Makers Guide (Memo DMG 1/04). It uses something called the 'minimum earnings threshold', which is, broadly speaking, the amount you need to earn before you have to pay class one National Insurance Contributions (£149 for 2013/14, and £153 for 2014/15). The guide says that if an employee or a self-employed person has been earning at least this for the three months before a claim for benefit is made they will 'automatically' be considered a worker. If this test is not satisfied, the decision maker 'will need to examine each case as a whole, taking account of all circumstances, to determine
whether the EEA national’s activity was genuine and effective'. This second bit is what the DWP was supposed to be doing with all EEA worker claimants anyway, before this memo.
So for people who have been earning above the minimum earnings threshold they can be certain that they will be treated as workers. Those who are earnings less will continue to be assessed as they were before.
Note that this guidance is unlikely to be applicable to people claiming Jobseeker's Allowance, Income Support, or Employment and Support Allowance, as they won't normally fit the rules for these benefits anyway, but will be relevant to claimants of Housing Benefit and Universal Credit.
Proposed fees for benefit tribunals
This is only a proposal: so don't get too scared: yet...
A government document has been leaked in which it is proposed that people refused benefits will have to pay to take the cases to appeal [www.theguardian.com/politics/2014/feb/20/people-stripped-benefits-charged-decision].
This follows the introduction of charges to take employment cases to tribunal, and a recent high court decision upholding the lawfulness of that change.
Leaving aside the breathtaking cynicism of placing yet another hurdle in front of the most vulnerable in their search for justice, there also seems to have an illogicality at the heart of the proposal. In general, where fees are charged for taking cases to court fee remission is also available for those who cannot afford to pay.
But by their very nature benefit appeals are likely to be submitted by people who are on low incomes. Not always, of course. Disability Living Allowance and Attendance Allowance are not means-tested, so claimants might, in principle, have income high enough not to need fee remission, for example. In general, though, we are looking at people whose main source of income has stopped, and for whom any replacement is likely to be means-tested. So either most of the appellants will have their fees remitted anyway, or a right afforded in most courts will be withheld from benefit cases.
It is my fervent hope that proper research along these lines will lead to these proposals being quietly dropped, on the basis at least of a cost-benefit analysis, if not for humanitarian reasons.
In this post, I'll look at
- Food poverty
- ATOS and ESA medicals
- Restrictions for EEA Workers
- Proposed fees for benefit tribunals
Food Poverty
In my post of 23rd December last year (http://benefitsowl.blogspot.co.uk/2013/12/the-food-bank-debate.html) I noted that the government has commissioned Warwick University to write a report about food poverty, but had been sitting on the report for months.
The report has finally been published, possibly partly as a result of a campaign by 38 degrees.
The Guardian comments on the report's release here: www.theguardian.com/society/2014/feb/20/food-bank-review-undermines-ministers-claim
The report itself is available here: www.gov.uk/government/uploads/system/uploads/attachment_data/file/283071/household-food-security-uk-140219.pdf
To be honest, the report isn't that earth-shattering, and in fact raises more questions than it answers. Much of the material in the report is based on findings from a Rapid Evidence Assessment (REA), essentially a meta-analysis of more detailed research, often from other countries. However some original work was also done. The writers are frank about the limitations of the project.
The report confirms that providers of food aid report an increased demand, and that this appears to be driven by 'on-going problems of low income, rising food (and other) costs and increasing indebtedness'. It says that 'there is no systematic evidence on the impact of increased supply and hypotheses of its potential effects are not based on robust evidence'. This looks to me like subtle criticism of the argument (advanced by ministers) that more people are using food banks because more food banks are available.
Importantly, the research finds that people access food aid only as a last resort, when all other avenues are exhausted. It also notes that many people, especially many older people, do not access food aid at all.
The report also finds that even where good food aid provision is available, this is only a short-term fix, and does not 'address the underlying causes of household food insecurity'.
I feel the need to add to this last point myself. The picture given in the media suggests that visiting a food bank - one of the main sources of food aid - is a regular part of some benefit claimants routine. This is nonsense. The main provider of food banks, the Trussell Trust, can normally only give help to an individual or family three times a year, and each food parcel provides enough for three days food. So even where a person has access to a food bank, only 9 days of food are available each year.
As it happens, a report was also commissioned by the Scottish government, which appears to be more detailed than the Warwick report. You can find it here: www.scotland.gov.uk/Resource/0044/00440458.pdf
I haven't had a chance to study it in detail yet, but I do note that it reports that over half of the referrals to the Trussell Trust in Scotland were due to benefit delays, benefit change, or benefit withdrawal, and this was an 11% increase over the previous year.
ATOS and ESA Medicals
It turns out that ATOS seems to hate doing work capability assessments almost as much as claimants hate having ATOS assess them. It had just made public the fact that it has been in negotiations since October last year to extract itself from its Employment and Support Allowance contract. It cites as the main reason the amount of abuse inflicted on its staff, including death threats. However it has also been under pressure from the government for the quality of its work.
There'll undoubtedly be a lot of celebrating about the possibility of ATOS leaving early. However I won't be celebrating. Don't get me wrong. I've seen at first hand the damage caused by poor quality medicals conducted by ATOS (these include a one-armed person who was told they could pick up an object with either hand). But I'm not comfortable with anyone being bullied or trolled, even ATOS assessors. And, more pertinently, I don't think it will make much difference.
If ATOS is replaced by another company tomorrow, that company will still be applying the same rules. The medical assessors will still be required to complete the same flawed (ESA85) forms, and, crucially, they will still be working under the same set of government priorities. In some respects ATOS has provided a useful smokeshield for the government, obscuring the reality that it is government policy that is the main problem.
You can read more about this story here: www.bbc.co.uk/news/uk-politics-26287199
The problems with ATOS may give some respite to ESA claimants in the short-term, though. The benefitsandwork.co.uk website reports that the DWP has instructed its staff not to refer any more repeat cases for medical assessments for the time being.
Restrictions for EEA Workers
The treaty of Rome and subsequent EU directives give freedom of movement to workers. The question this leaves is, of course: what is a worker? Until we have relied on the principle that the work must be 'genuine and effective'. The government has now given DWP offices new guidance as to how this should be determined.
The government's press release on the change says:
'Migrants from the European Economic Area (EEA) who claim to have been in work or self-employed in order to gain access to a wider range of benefits will face a more robust test from 1 March 2014'. [www.gov.uk/government/news/minimum-earnings-threshold-for-eea-migrants-introduced]
This sounds like another draconian restriction is coming in, but, having looked at the details, I think that it might actually be a useful clarification, and doesn't, as the change is worded, restrict anyone's rights compared to what they were before.
The clarification has not come in the form of any new law, but as a memo added to the Decision Makers Guide (Memo DMG 1/04). It uses something called the 'minimum earnings threshold', which is, broadly speaking, the amount you need to earn before you have to pay class one National Insurance Contributions (£149 for 2013/14, and £153 for 2014/15). The guide says that if an employee or a self-employed person has been earning at least this for the three months before a claim for benefit is made they will 'automatically' be considered a worker. If this test is not satisfied, the decision maker 'will need to examine each case as a whole, taking account of all circumstances, to determine
whether the EEA national’s activity was genuine and effective'. This second bit is what the DWP was supposed to be doing with all EEA worker claimants anyway, before this memo.
So for people who have been earning above the minimum earnings threshold they can be certain that they will be treated as workers. Those who are earnings less will continue to be assessed as they were before.
Note that this guidance is unlikely to be applicable to people claiming Jobseeker's Allowance, Income Support, or Employment and Support Allowance, as they won't normally fit the rules for these benefits anyway, but will be relevant to claimants of Housing Benefit and Universal Credit.
Proposed fees for benefit tribunals
This is only a proposal: so don't get too scared: yet...
A government document has been leaked in which it is proposed that people refused benefits will have to pay to take the cases to appeal [www.theguardian.com/politics/2014/feb/20/people-stripped-benefits-charged-decision].
This follows the introduction of charges to take employment cases to tribunal, and a recent high court decision upholding the lawfulness of that change.
Leaving aside the breathtaking cynicism of placing yet another hurdle in front of the most vulnerable in their search for justice, there also seems to have an illogicality at the heart of the proposal. In general, where fees are charged for taking cases to court fee remission is also available for those who cannot afford to pay.
But by their very nature benefit appeals are likely to be submitted by people who are on low incomes. Not always, of course. Disability Living Allowance and Attendance Allowance are not means-tested, so claimants might, in principle, have income high enough not to need fee remission, for example. In general, though, we are looking at people whose main source of income has stopped, and for whom any replacement is likely to be means-tested. So either most of the appellants will have their fees remitted anyway, or a right afforded in most courts will be withheld from benefit cases.
It is my fervent hope that proper research along these lines will lead to these proposals being quietly dropped, on the basis at least of a cost-benefit analysis, if not for humanitarian reasons.
Subscribe to:
Posts (Atom)