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Decision in brief

Child with autism needing attention for more than one and a half hours per day – tribunal needed to explain why it did not consider attention for that amount of time was not for a ‘significant portion of the day’ given findings in CDLA/58/1993 and Ramsden v Secretary of State for Work and Pensions [2003] EWCA Civ 32; R(DLA) 2/03 that attention for an hour would reasonably be regarded as a significant portion of the day.

Decision in brief

Activity can take different forms (SSWP v MM [2019] UKSC 34) – does not include difficulty interacting with a crown (AM v SSWP [2017] UKUT 7) – implies engaging with people you do not know (HJ v SSWP [2016] UKUT 487) – if a claimant limits her/his engagement with others substantially to avoid the risk of substantial harm, it may mean s/he cannot engage socially (SSWP v AM [2015] UKUT 215) – must be able to engage safely and to an acceptable standard (SSWP v AM [2015] UKUT 215 and AB v SSWP [2017] UKUT 217).

Decision in brief

Co-ordination rule at Article 67 of Regulation EC 883/04 provides that child (as a family member) is treated as if residing in UK – but does not provide that domestic CTC rule that child is ‘normally living with’ the claimant is satisfied – claimant not entitled to CTC for the child

Decision in brief

Tribunal wrong to hold refuse points on basis claimant could avoid the problem by adapting the food she eats – implies consuming liquid or mashed food only – definition of ‘take nutrition’ includes reference to cutting food into pieces and chewing and swallowing – indicates expectation of ability to eat solid food – even if food is blended or mashed, that would require use of an aid to do that – also must consider whether activity can be carried out ‘to an acceptable standard’ with reference to claimant’s pain and discomfort.

Decision in brief

Claimant’s MP had written to the tribunal on his behalf requesting clarification – that was legitimately considered a request for a review and in turn treated as an application for permission to appeal (under rule 41 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008) – decision was legitimately set aside as internally incoherent – second First-tier Tribunal was able to correct that incoherence.

Decision in brief

Although claimant had indicated that she wished for a decision on the papers, the tribunal had not properly considered why she could not attend a hearing and there was evidence that she had been told by the Tribunals Service that it was better to opt for a decision on the papers without an attempt to enable her attendance at a hearing.

Decision in brief

Ground for set-aside under rule 37(2) of the Tribunal Procedure Rules potentially made out – set-aside application refused as claimant allegedly then failed to send an accompanying letter from the Home Office – but, in fact, tribunal letter requesting that letter was sent to the wrong address – in these circumstances, the district tribunal judge could not have correctly concluded that the claimant had ignored the request – refusal of set-aside was therefore unlawful.

Decision in brief

First-tier Tribunal has the power to decide on appeal that claimant should have been treated as having limited capability for work (ie, for significant worsening or new medical condition) from date of repeat claim under regulation 30 of the Employment and Support Allowance Regulations 2008 – tribunal not limited to considering only whether claimant does or does not in fact have limited capability for work (ie, if work capability assessment actually satisfied or not) – EI v SSWP (ESA) [2016] UKUT 397 (AAC) wrongly decided on these points.

Summary

The claimant was a Romanian national living in the UK with her partner and young daughter. In December 2020, she was granted pre-settled status under the European Union Settlement Scheme (EUSS). That was her only source of a right to reside in the UK. In January 2021, she and her daughter left the home she shared with her partner, having been subjected to domestic violence (involving both emotional and physical abuse) throughout the course of their relationship. The claimant went to a refuge run by a charity. She had no cash, and her only source of income was child benefit. Her application for UC was refused on the basis that she had no qualifying right to reside for UC. The First-tier Tribunal allowed her appeal (so as to hold that she was entitled to UC) on the basis that without UC, on the facts of the case, the claimant and her daughter would not be able to live in ‘dignified conditions’. That was her right under European law, specifically under Article 1 of the EU Charter on Fundamental Rights (‘the Charter’). That right had been referred to, in the context of claimants without a qualifying right to reside, in the decision of the Court of Justice of the European Union (CJEU) in Case C-709/20 CG v Department of Communities for Northern Ireland [2022] 1 CMLR 26. The Secretary of State appealed, arguing that the tribunal judge was wrong to regard CG as applicable to those with pre-settled status after 31 December 2020, the end of the ‘transition period’ in the Withdrawal Agreement between the UK and EU. The Secretary of State also argued that, in any case, the refusal of UC did not violate any right to live in dignified conditions. 

A three-judge panel of the Upper Tribunal rejected the Secretary of State’s appeal. Mr Justice Chamberlain and Judges Ward and Wright held that the First-tier Tribunal had not erred in law. On the applicability of the Charter to those (like the claimant) within its personal scope after the end of the transition period, there was no doubt that ‘the UK’s exit from the EU brought about a fundamental change in the UK’s legal order’. But there was also no doubt that the Withdrawal Agreement continued to make certain parts of EU law applicable, often with modifications as to its scope (paragraph 90). The decision in CG did not apply a limit, regarding the Charter right to live in dignified conditions, to the transition period. Any doubts were resolved by Article 4(1) of the Withdrawal Agreement, where the intention regarding someone within its personal scope was ‘to produce, more generally, the same legal effects in the UK as in the EU and its Member States’ (paragraph 108). 

Regarding whether the refusal of UC was capable of violating the claimant’s rights to live in dignified conditions, the Upper Tribunal held that, depending on the facts of the case, it could. Contrary to the Secretary of State’s submission, some consideration of this possibility was required in every case where the claimant was depending on their pre-settled status right to reside, even though it need not be a lengthy inquiry. 

‘In many cases, there will be nothing preventing the applicant from working; if so, that will provide a complete answer to the claim. In other cases, it may be obvious that there is some other source of state support, to which the claimant actually and currently has access, and that this is sufficient to meet the applicant’s “most basic needs”. It should be possible to elicit the relevant information by designing a relatively straightforward form. But in all cases where the claimant has PSS [pre-settled status], some information will have to be gathered and some form of assessment undertaken’ (paragraph 117). 

Regarding what the reference to dignified conditions meant, consideration of CJEU authority (Case C-233/18 Haqbin v Federaal Agentschap voor de opvang van asielzoekers EU:C:2019:956 [2020] 1 WLR 2633) led to the conclusion that ‘the range of matters with which Article 1 is concerned, albeit strictly limited, extends to the provision of support for a person’s “most basic needs”. These will no doubt vary from person to person, though typically they will include housing (which we take as including a basic level of heating adequate for a person’s health), food, clothing and hygiene’. That could apply even if a person would lack these things for a very limited time (paragraph 125). 

As to what support other than UC might be taken into account in an assessment, CG made it clear that it must be an individualised one, based on the facts of the claimant’s case. The assessment must be ‘directed to ensuring that refusal does not expose the people concerned to an “actual and current risk” of a violation of their rights as set out in the identified provisions of the Charter’ (paragraphs 127–128). Support that is merely potentially available (ie, if in practice it is unlikely to materialise) will not be enough. The Secretary of State pointed to support under section 17 of the Children Act 1989. But it was well known that in practice the actual availability of such support was variable between local authorities and: ‘What matters is whether such support will actually be provided by a local authority which may be subject to severe resource constraints’ (paragraph 134). On the particular facts of the claimant’s case, the First-tier Tribunal judge had legitimately concluded that her ‘potential’ to find work did not remove the actual and current risk of violation of her Charter rights. Lack of free childcare, the psychological impact of the domestic violence (which was apparent without the need for corroborative medical evidence) and the context of the Covid lockdown were all relevant here. Similarly, the potential availability of child maintenance from the ex-partner was not sufficient: the judge had reasonably concluded from the facts that there was no reliable prospect of such support being received or effectively enforced.

Comment from CPAG

This important decision is authority that before refusing UC to a claimant relying on pre-settled status for right to reside, there must be an assessment of whether that would violate their European rights to live in dignified conditions. That assessment is of their ‘most basic’ needs and what actual support they can get, with the outcome dependent on the individual facts. The Secretary of State has permission to appeal to the Court of Appeal, and is using his power to stay making decisions (ie, stockpile them) pending the outcome. See the article in Bulletin 292, p6 for more.

Note: the Secretary of State's appeal against this decision was dismissed by the Court of Appeal on 8 November 2023.  For further details, see our caselaw summary: Secretary of State for Work and Pensions v AT (AIRE Centre and IMA Intervening) [2023] EWCA Civ 1307 and our test case update: Destitute EU nationals with PSS can rely on EU Charter of Fundamental Rights to obtain universal credit.

Decision in brief

Appeal concerned time limit for claiming credits for a parent and possible extension of time for such period as HM Revenue and Customs ‘considers reasonable in the circumstances’ – tribunal erred in merely considering whether the decision was one the decision maker was entitled to make, rather than considering the judgment afresh – authority that nature of a tribunal rehearing requires the tribunal to exercise the judgment afresh.

Decision in brief

Ability to rely on partner’s as resources counting towards prior self-sufficiency and whether carer’s allowance is ‘social assistance’ – appellant (‘C’) a Belgian national with a UK partner (‘J’), made a joint claim for UC – held (reversing decision of tribunal) that C did have a right to reside as a self-sufficient person (with comprehensive sickness insurance, not in dispute) – before the claim for universal credit (UC), C’s resources consisted of the share of J’s benefits made available by her to him when he joined her – these included ‘social assistance’ in the form of her legacy means-tested benefits (which had not increased as a result of C joining her) and C’s own carer’s allowance for her (not in itself ‘social assistance’), both counted as part of his resources, so that he must be taken to have been self-sufficient before the claim for UC – that meant that the case fell within the scope of C-140/12 Brey, so that an individualised assessment was required of C’s position – C eventually became eligible for settled status in the UK, so the relatively small amount of additional UC involved in paying the full amount for a joint claim was a ‘time-limited top-up’ and not unreasonably burdensome

Note: the Secretary of State's appeal against this decision was dismissed by the Court of Appeal, for further details see our caselaw summary Secretary of State for Work and Pensions v Versnick [2024] EWCA Civ 1454.