Domestic abuse survivor wins universal credit appeal case that will help destitute EU citizens and families residing in the UK live with dignity
A landmark ruling in the Court of Appeal has held that the government is required to consider the fundamental rights of EU citizens and their families residing in the UK, including their right to live in dignified conditions, before refusing universal credit support.
- A domestic abuse survivor and lone parent of a young child brought the case with assistance from Child Poverty Action Group and her support worker in the women’s refuge where she stayed after fleeing her home. AT is an EU national with pre-settled status (limited leave to remain) under the EU Settlement Scheme but – at the time of her universal credit claim – had no qualifying EU right to reside in the UK for the purposes of being entitled to universal credit (UC).
- The Court’s ruling applies to people with pre-settled status (PSS) in the UK. PSS was set up under the Withdrawal Agreement, which the UK negotiated when it left the EU. Under current benefits rules, people with pre-settled status under the EU Settlement Scheme are entitled to apply for UC, but are required to have an additional preserved EU law right to reside—on top of their PSS—in order to be eligible.
- This universal credit rule often means that people who have barriers to working, for example, as a result of recently fleeing domestic violence, having health conditions or disabilities, and caring for young children, are not able to access support. This is because they do not have an EU law right to reside as a worker or as self-employed, which is required for them to qualify for benefits in addition to their pre-settled status.
- Those within this group who would be left destitute if they were refused universal credit by DWP will be able to rely on this case to access support.
The Court of Appeal held that the Secretary of State for Work and Pensions was required to consider whether AT and her young child were at risk of not being able to live in dignified conditions before refusing her claim for universal credit and leaving her without any other support.
Child Poverty Action Group brought the case on behalf of AT who had fled her home along with her young daughter, following domestic abuse, with no cash at all. She was temporarily placed in a hotel by the police and then went to a refuge run by a charity. After arriving at the refuge, her resources comprised £200 in a bank account, a £25 voucher and £15 cash from a fellow refuge resident.
AT has been lawfully resident in the UK since 2020. Although she had previously worked in the UK, she had no additional ‘qualifying’ right to reside in the weeks after fleeing her home due to domestic abuse as a result of the fact that she was unable to work whilst caring for her young daughter and living in the refuge provided by a charity.
AT could not access universal credit via an application to the Destitution Domestic Violence Concession (DDVC) run by the Home Office because it is not open to people, like AT, who have pre-settled status under the EU Settlement Scheme. So, despite her pre-settled status permitting her to access public funds, she had no way of accessing universal credit due to the universal credit entitlement rules.
The Court agreed with AT and Child Poverty Action Group that the First-tier Tribunal was right to not apply the government’s restrictive rule that prevents people with pre-settled status from accessing universal credit in cases where refusing the claim for universal credit would leave the claimant or their children destitute or at risk of being unable to meet their basic needs of adequate food, shelter, hygiene and clothing.
The Court rejected the government’s position that the “in principle” availability of (non-UC) support from local authorities such as support under section 17 of the Children Act 1989 which imposes a general duty on local authorities to safeguard and promote the welfare of “children in need” in their areas (which AT was not, as a matter of fact, receiving) was sufficient to protect a violation of AT’s rights. The Court agreed with the First-tier Tribunal that in AT’s case, “section 17 [Children Act 1989] was not an answer”  and with the Upper Tribunal which said it was important to “focus on the concrete factual position, not the theoretical legal one” when looking at what support AT and her child had available to them.
Although AT relied on her right to dignity under the Charter of Fundamental Rights, the Court noted that the principle of dignity has a “long-standing counterpart” in the “constitutional traditions” of England & Wales known as the “law of humanity” [35, 183]. The Court noted that government was right to point out that “the true position is that human dignity pervades all [rights under the European Convention on Human Rights]” .
This judgment means that DWP must provide help to households with PSS under the EU Settlement Scheme (but no additional preserved EU law right to reside) who would otherwise be left at risk of being without adequate provision for their basic needs.
Claire Hall, Head of Strategic Litigation at Child Poverty Action Group said:
As the court has recognised, there are basic minimum living conditions that the UK government cannot lawfully allow families, who it has chosen to put on a route to settlement in the UK, to fall below. Preserving a minimum level of dignity for people through our national support systems should be a given. Yet there are gaping holes in those systems, and where they do exist - such as local authority duties under section 17 of the Children Act 1989 – they are not adequately funded by government. As a bare minimum we should always provide the necessary basic protections to ensure children do not live in undignified conditions, without adequate food, clothing, or shelter, particularly when they have recently fled traumatic circumstances.
Nobody - whether of British, EU or any other nationality – should have to endure unacceptable living conditions in the UK.
AT’s support worker said:
In my work at the refuge where AT was accommodated, we see all too often that the system of support provided by under-funded local authorities is an inadequate safety net for survivors of domestic abuse and their children who need to rely on that system. Access to regular universal credit payments provides some much-needed security and stability at an otherwise highly disruptive time for families. It’s not right that EU nationals such as AT, who has been lawfully resident in the UK since before Brexit, are left without support simply because of their immigration statuses, particularly at a time when they are trying to rebuild their lives alongside caring for young children. It is fantastic that this judgment helps others facing the same situation as AT.
Current DWP policy is to stay all potentially similar cases behind AT’s case while the government appeals and only to lift those stays in cases where the universal credit claimant is facing hardship. Since all people who stand to benefit from the Court’s ruling will face current or imminent hardship, Child Poverty Action Group is calling for this policy to be reversed and for decisions to be made immediately by DWP on all stayed cases, irrespective of whether the government appeals further to the Supreme Court.
Notes to editors:
Two anonymity orders are in place: There is to be no disclosure or publication of any matter likely to lead members of the public to identify AT, her daughter, her support worker or the body providing the refuge used by AT without the permission of a judge of the Upper Tribunal and a judge of the Court of Appeal. Breach of these orders may constitute contempt of court and be punishable by a fine or imprisonment.
Permission to appeal to the Supreme Court: The Secretary of State for Work and Pensions (SSWP) applied to the Court of Appeal for permission to appeal to the Supreme Court and this was refused on 8 November 2023. The SSWP will have the opportunity to renew his application for permission to appeal to the Supreme Court.
- The ruling applies to EU citizens and their families with rights under Part 2 of the UK-EU Withdrawal Agreement. Pre-settled status is the form of limited leave to remain granted through the EU Settlement Scheme (the scheme set up to implement rights under the Withdrawal Agreement) under Appendix EU of the Immigration Rules to EU citizens and their families who have been in the UK less than 5 years. People with pre-settled status will become eligible for settled status (indefinite leave to remain) once they have reached 5 years of residence.
- The ruling confirms that people covered by the UK-EU Withdrawal Agreement are able to rely upon certain rights under the EU Charter of Fundamental Rights after the end of the Brexit “transition period” (ie after 31 December 2020) when claiming universal credit. In this context, their right to dignity, right to family life and best interests of children all must be considered by the government prior to refusing an application for universal credit.
- The Court of Appeal judgment upholds the decision of the Upper Tribunal taken in December 2022, which in turn upheld the decision of the First-tier Tribunal in May 2022.
The case is SSWP v AT (AIRE Centre and Independent Monitoring Authority for the Citizens’ Rights Agreements intervening)  EWCA Civ 1307.
A copy of the judgment is available here: https://cpag.org.uk/sites/default/files/files/Final-Judgment-CA-2023-000...
More information on the case is here: https://cpag.org.uk/destitutepss
Child Poverty Action Group acted as solicitors for AT in the Court of Appeal, and as her representatives in the Upper Tribunal and First-tier Tribunal previously.
Tom de la Mare KC (Blackstone Chambers) and Tom Royston (Garden Court North) were instructed to represent AT in the Court of Appeal, and in the Upper Tribunal previously.
CPAG press office - 07816 909302.