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Summary

In this High Court judicial review case, a reference has been made to the Court of Justice of the European Union (CJEU) for a preliminary ruling, and consequently no substantive decision has yet been made by the High Court. 

The case concerns a claimant (a Bangladeshi national) who came to the UK in 2021 as a dependant of her adult son (a Spanish national) who was a worker and had gained settled status in 2019. The claimant had pre-settled status. Initially she lived with him and was dependent on him, but following domestic abuse she left his home in 2023 and ceased to be dependent on him. She was refused universal credit (UC) on right to reside grounds. She applied for judicial review on grounds of discrimination. 

Mr Justice Chamberlain needed to consider a related but distinct point, namely whether the claimant had a freedom of movement right to reside (ie, under European law) as a dependant family member of a European Union (EU) citizen who had retained her right to reside as a family member after the dependency ceased, by virtue of Article 17(2) of the Withdrawal Agreement. But that involved a question as to whether Article 17(2) of the Withdrawal Agreement could apply to a person, like the claimant, who was a dependant family member outside the host state (in this case, the UK), but had only actually entered the UK after the end of the ‘transition period’ following the UK’s exit from the EU, after 31 December 2020. The judge referred this question to the CJEU.

Summary

The landlord required eight weeks rent in advance, and where that was not paid regarded the claimant as eight weeks in arrears from the outset, and requested direct payments of HB (ie, to her) immediately. The local authority refused to commence direct payments for arrears, arguing that arrears arising out of rent in advance did not count. The First-tier Tribunal agreed and dismissed the landlord’s appeal.

Judge Gray allowed the landlord’s further appeal and remitted the case for rehearing by a fresh tribunal. The tribunal had erred in holding that arrears arising from rent due in advance could not count as arrears. Rent was in arrears once the contractual date for payment had passed, irrespective of whether or not it was due in advance. The plain words of the relevant regulation (regulation 95 of the Housing Benefit Regulations 2006, No.213), mandated payment directly to the landlord where rent is the equivalent of eight weeks in arrears, subject to the required consideration of whether it was in the ‘overriding interest’ of the claimant not to make direct payments (paragraph 41). The only issue for the new tribunal was to consider the overriding interest question (paragraphs 2–3).

The judge was considering the direct payment for arrears rule at regulation 95, not the rule at regulation 96 allowing direct payment in wider circumstances (and where regulation 95 does not apply). The judge held that whether or not the eight-week-in-advance rental provision in the tenancy agreement was set with the intention of defeating the eight-week arrears rule in regulation 95 (as argued by the local authority) was irrelevant. There was a contrivance rule at regulation 9, but that concerned the issue of a tenancy contrived to take advantage of the HB scheme (paragraph 17). The judge adopted the analysis of regulation 95 made by Commissioner (now Judge) Jacobs in CH/1821/2006 and in R(H) 1/08, where he held that regulation 95, where applicable, imposes a mandatory duty to make direct payment, and that consideration of whether it is in the overriding interest of the claimant not to make direct payments was also mandatory both for the local authority and the tribunal (paragraphs 22–26). The phrase ‘overriding interest’ was to be given its natural meaning, but set a ‘high hurdle’ (paragraph 28). A policy of financial inclusion or other ‘generic’ reason cannot be the basis for deciding the question; although such issues could be ‘part of the picture’, individual criteria must also be considered, including ‘the interest in the tenant retaining the accommodation they have secured’ (paragraph 31).

Comment from CPAG

The judge said that the issue of whether arrears of rent due in advance could count was apparently a matter which arose frequently, and had been told that a binding decision will be of practical assistance. The decision must now be regarded as the key authority on the question.

Decision in brief

Activity 12(c) ‘reduced awareness of everyday hazards’ leading to significant risk of injury or damage to property or possessions – claimant vulnerable in social situations and had been subject to exploitation for sex – such hazards are not ‘commonplace or ordinary’ and so are not within the ambit of the descriptor, which is concerned with commonplace hazards encountered when going about daily life such as when making hot drinks or chopping food, crossing roads or using electric plugs

Decision in brief

Claimant already entitled to contributory ESA – awarded from date of PIP award, not from later date of award of income-related ESA – the ‘relevant benefits’ involved are ESA and PIP – regulations 6(2)(e) and 7(7)(a) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 No.991 apply

Decision in brief

Claimant may need prompting to take nutrition although (applying MM and BJ v SSWP (PIP) [2016] UKUT 490 (AAC)) that did not include a need for prompting to include a healthy or nutritious diet – but if claimant ‘prompted’ by felling weak due to lack of food, that might be indicative of not performing the activity to an acceptable standard – claimant may have difficulties with budgeting decisions even if there is sufficient intellectual ability and also an ability to motivate about other tasks

Decision in brief

EU right to reside rules on family member retaining right to reside on death or departure from UK (Article 12 of EC Directive 2004/38/EC) – does not provide a simple continued right to reside for the surviving EEA national – it merely provides than any independent right to reside they still have is unaffected by the death/departure, and a permanent right to reside is dependent on such a right

Note from CPAG

See also GA v SSWP (SPC) [2018] UKUT 172 (AAC)

Decision in brief

EU right to reside rules on family member retaining right to reside on divorce (Article 13 of EC Directive 2004/38/EC) can only apply if the British citizen had exercised European freedom of movement rights – even where it does apply, Article 13 does not provide a simple continued right to reside for the now divorced EEA national – it merely provides that any independent right to reside they still have is unaffected by the divorce, and a permanent right to reside is dependent on such a right

Note from CPAG

See also JP v SSWP (ESA) [2018] UKUT 161 (AAC)

Decision in brief

A ‘wide range of simple meals for one person can be prepare and cooked in 20 to 30 minutes without needing the cook to be standing over it or perching next to it during the process’ – logic of CW v SSWP [2016] UKUT 197 applies to Activity 1 as it does to dressing and cooking – unless a claimant ‘is unable to stand safely for more than a few minutes’ he is ‘unlikely’ to require a perching stool – the way in which the need for using a perching stool is assessed ‘needs to be revisited’

Comment from CPAG

This decision, on the judge’s own comments, is obiter (not formally binding) on this point. In any case, it seems to focus on the idea that food often does not need to be watched over while it is cooking. Arguably, it neglects the absolute need to be watched over food while it is being prepared. Also, it fails to take into account, or at least to mention, the decision in EG v SSWP (PIP) [2015] UKUT 275 (AAC), which did find that perching stools can be an aid for preparing food.

Decision in brief

Work capability assessment descriptor 4(c) ‘cannot transfer a light but bulky object such as an empty cardboard box’ – although may be achieved with one arm by wedging the object under the arm (KH v SSWP (ESA) [2014] UKUT 455) test still involves use of the upper body, and so ‘the effect on a back condition of picking up and moving a light, bulky object, using the one arm wedging technique, must be taken into account’