EU carer owed thousands by DWP after winning legal battle to be included in disabled wife’s universal credit award

An EU citizen (WV) who is a carer for his severely disabled British wife (J) has – with support from Child Poverty Action Group - won a legal battle with the DWP after a Tribunal found the couple were wrongly underpaid universal credit for nearly 2 years while he had pre-settled status, since the couple’s joint claim was refused by the DWP in 2020.

When WV claimed universal credit (UC) in 2020, he was one of around 2 million people in the UK with pre-settled status – the form of limited leave to remain granted to EU citizens and their families under the EU Settlement Scheme, which was set up as part of the deal agreed between the UK government and the EU as part of Brexit.

WV moved to the UK in 2017 and he and his British partner, J, married shortly after. WV has since been granted settled status (indefinite leave to remain), the form of permanent leave that people granted pre-settled status become eligible for after 5 years in the UK.

To receive universal credit, claimants must be "in Great Britain" as well as "habitually resident in fact" in the UK. This means that, in addition to demonstrating that the UK is your home, non-UK nationals also need to show they have a residence right (ie. they are legally resident in the UK).

However, not long after the government launched the EU Settlement Scheme in 2018, a new rule was introduced that meant that pre-settled status no longer counted as a right of residence for the purposes of UC. This means that everyone with pre-settled status must demonstrate an additional preserved EU law right of residence in order to be treated as if they are "in Great Britain". For example, claimants must demonstrate they are an EU worker or self-employed person in order to access support, despite having a domestic right of residence granted by the UK government.

Those either in or recently in the labour market, or with EU family members who are working in the UK, can in theory meet this test without too much difficulty. But for people with pre-settled status who have caring responsibilities or have disabilities that impact their ability to work, it is a much harder task to establish they have an additional right of residence. WV was one such person due to being a full-time carer for his wife J, who is severely disabled.

Problems first arose for the couple when WV and J moved house in 2020 and were forced to claim UC, due to the government’s policy of phasing out ‘legacy benefits’ to replace them with UC. The couple’s joint claim for UC was refused by the DWP, because WV was treated as "not being in Great Britain" under the UC rules, despite having lived consistently in the UK with J since 2017; being married to a British citizen; and having pre-settled status. DWP instead awarded J the single person rate of UC, reduced further to take account of WV’s Carer’s Allowance, meaning that the couple missed out on £347 every month compared to the couple rate plus the carer premium they would have received had WV and J been awarded UC as a couple.

Up until they were required to claim UC, the family had been covering their living costs with J’s "legacy" disability benefits, as well as relying on WV’s Carer’s Allowance. WV was included on J’s Employment and Support Allowance ("ESA") award without issue because there was no equivalent "right to reside" test that he needed to pass for him to be added to the existing award. When WV joined J’s household in 2017, this meant that J’s ESA amounts were lower than they would have been had he not been caring for her, as they were adjusted to account for the fact that she had her care needs covered by him. The Upper Tribunal found that this meant WV had a preserved EU law right to reside, which he did not lose when he and J made their joint claim for UC which the judge said amounted to a "time-limited top-up". As a result, ‘WV’ was entitled to receive universal credit since he and J made a joint claim in 2020. 

The tribunal’s decision amounts to a recognition that the couple have missed out on around £8000 of UC over the course of 2 years, in between claiming UC and WV getting settled status. With UC levels set already so low, the couple report that they have been forced into credit card debt as a result of this injustice. WV’s case adds to the growing number of cases where the DWP has been found by the tribunals to have incorrectly refused UC to EU citizens and their families.

Claire Hall, Head of Strategic Litigation at Child Poverty Action Group said: 

Most people would find it shocking that someone in Mr V’s circumstances, who has lived in the UK since well before Brexit and who is a carer for his British spouse, is excluded from the universal credit safety net by the government’s benefit rules for people with pre-settled status, unless he can also identify some other 'right to reside' under preserved EU law.

The 'right to reside' test in UC for people with pre-settled status is a bureaucratic hurdle that is a hangover from pre-Brexit times, is complex and time-consuming for the DWP to administer, and no longer makes any sense where the government has chosen to grant a right of residence to pre-settled status holders as part of the deal it struck when leaving the EU, with an expectation that they will be able to settle permanently in the UK.

As this case demonstrates, when DWP gets it wrong – which happens all too often - even people who are properly entitled to support can miss out for months or even years while they go through the appeal process.

Martin Williams, Welfare Rights Adviser at Child Poverty Action Group said: 

In a cost-of-living crisis, the last thing the state should be doing is making life harder for disabled people and their carers, without whose support cash-strapped local authorities would be required to provide care.

The Upper Tribunal has previously recognised that the government is failing some of the most vulnerable groups in society, including domestic violence survivors, by refusing to provide UC to people with pre-settled status who are facing destitution without adequate food, accommodation, or clothing. This latest legal loss for the government highlights that the ‘right to reside’ test in UC also impacts other groups who most people would never expect to be excluded from the social security system.

It’s high time the government abandons it entirely and treats EU citizens on a route to settlement in the UK, like Mr V, with dignity and respect.

Notes for editors: 

The case is Secretary of State for Work and Pensions v WV (UC) [2023] UKUT 112 (AAC).
https://cpag.org.uk/welfare-rights/test-cases/test-case-updates/right-r…

This new judgment will be relevant to UK nationals with EEA national partners, where the UK national has previously received so-called 'legacy benefits' (eg. Employment Support Allowance) but the couple need to claim UC due to a change in circumstances. In particular, EEA carers who care for their British partners may be able to rely on this case, given that their presence in the household may have actually decreased the amount of 'legacy benefit' received by their partner. 

WV relied on his preserved EU law right to reside as a self-sufficient person and was permitted to include his British wife’s legacy benefits and his own Carer’s Allowance in the tribunal’s analysis of the resources he had access to prior to claiming UC. He successfully argued that awarding the couple rate of UC would not constitute an "unreasonable burden" on the social assistance system of the UK, in circumstances where he was expected to – and did in fact - become eligible for benefits within 2 years in any event, as a result of acquiring settled status.

This case is the first time 'self-sufficiency' has been accepted by the courts for the purposes of claiming benefits, and the argument was made possible in WV’s case by a European court ruling in March 2022 that recognised that the UK government had for decades been wrongly requiring EU citizens to have private health insurance before accepting certain rights of residence under EU law (including self-sufficiency); a position that was incompatible with the UK’s decision to allow EU citizens free access to the NHS (C-247/20 VI v The Commissioners for Her Majesty’s Revenue & Customs).

CPAG previously brought a case on behalf of a domestic abuse survivor with pre-settled status - SSWP v AT (AIRE Centre and IMA intervening) [2022] UKUT 330 (AAC). The SSWP's appeal to the Court of Appeal in that case was heard in March 2023 and judgment is awaited (case no. CA-2023-000085). CPAG previously unsuccessfully challenged the general rule that excludes pre-settled status as a 'right to reside' for the purposes of UC in Fratila and another (Respondents) v Secretary of State for Work and Pensions (Appellant) [2021] UKSC 53.

CPAG press office: 07816 909302.