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EEA Unfit for Work: Temporarily Sick
KEY FACTS:

  • Still 'in work'?
  1. If an EEA national is off work but is still under a contract, or if self-employed they have kept the business open, then they keep their worker status. - and so have a right to reside and can claim Universal Credit. 
  2. (CIS /4237 /2007).
  • Temporarily sick when they've been in employed work, and their job has ended?
    EEA nationals who have had to finish work because they are temporarily unfit for work may be able to retain their worker status (assuming their work was genuine and effective) and will be able to claim UC for as long as they remain temporarily unfit. They must provide a sick note but do not need to pass the work capability assessment as unfit for work.

  • Temporarily sick when been in self-employment, but closed the business?
    EEA nationals retain their ‘self-employed worker’ status if they are an EEA national who has been in self-employment who Is temporarily unable to work due to illness or accident. (No definition of 'temporary - this is up to the DWP to accept - caselaw has accepted 4 years as temporary).  

 

  • When will they lose this status?
    The EEA nationals in the above situations can generally claim UC, however if an EEA worker has lost or does not have retained worker status - eg they become well whilst unemployed or their work was not 'genuine and effective' - then they may also lose their right to claim UC unless they have an alternative status that allows this - see right to reside.
    A self-employed person who closes their business for any reason other than illness will not retain their worker status and will only be able to claim HB if they have a different status that allow this - see right to reside.

  • Pregnancy / Maternity reasons for being unable to work?
    "Temporary sickness" can include women who have a pregnancy related illness that prevents them from working - see below.  And it may include having to give up work to care for a partner who is temporarily ill.

Example 1:

Genevieve is a self employed French accordion player who trapped her fingers in a door and has been unable to play for five months but is now ready to return to work. She was able to claim UC while temporarily incapable of work as she did not close the business - but would still have counted as having retained worker status even if she had.
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Example 2:

Juan from Spain developed pneumonia after a bad case of flu and has been off work for 14 weeks. He was able to keep his UC as he retained his Right to Reside as he kept retained worker status.  He then developed further respiratory complications and put in for a Work Capability Assessment but failed. However as he was submitting sick notes he retained his worker status.
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