CPAG search

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.

Summary

In this decision, the Court of Appeal dismisses the appeal by the Secretary of State against the decision in the Upper Tribunal of Judge Ward in SSWP v WV (UC) [2023] UKUT 112 (AAC). There it had been held that, on the facts, the claimant had a freedom of movement right to reside as a self-sufficient person where he relied not only on his carer’s allowance but also in part on the means-tested benefits paid to his British partner, where those benefits were not paid at a higher rate due to him.

The claimant was an EU national married to a British citizen. He came to the UK in 2017. He was a carer for his wife who was a severely disabled person in receipt of income-related employment and support allowance (ESA), child tax credit and housing benefit as well as personal independence payment. His presence in the couple meant that his wife’s income-related ESA was reduced by the loss of the severe disability premium and by his carer’s allowance. When he and his wife claimed universal credit (UC) as a couple in 2020, he had pre-settled status under the EU Settlement Scheme – ie, insufficient in itself for UC purposes. The claimant was held not to have a European freedom of movement right to reside. However, Judge Ward found that in principle the claimant could rely on the means-tested benefits paid to his wife to establish such a right as a self-sufficient person. On the facts, the claimant had suff cient resources not to become a burden on the social assistance of the UK down to the point of claim for UC. The extra UC that would therefore be paid to them as a couple was £347 a month. The judge considered that was a relatively small amount, that the claimant was due to acquire settled status in about 23 months, that the numbers of other claimants with sufficiently similar facts to benefit from this finding was small, and so there was no unreasonable burden on the social assistance system of the UK from so concluding. 

The Court of Appeal unanimously dismissed the Secretary of State’s further appeal. Giving the lead decision, LJ Singh held that on the facts Judge Ward had not erred in law, including in holding that in principle a claimant could rely in part on the means-tested benefits made available to him by his partner. However, the facts were particular and unusual: ‘It is clear therefore, in my view, that the critical part of the judge’s reasoning was that, on the unusual facts of this case, there would be no increase in the burden on the UK social assistance system’, as a result of the claimant having joined his British wife in the UK, with the ‘reasoning and impact’ of the decision being ‘relatively narrow’ (paragraphs 69 and 70). The ‘crucial point’ was that, on the facts, ‘there was no increase, but rather a decrease, in the burden on the UK’s social assistance system’ by reason of the claimant having exercised his European freedom of movement rights (paragraph 71).

Summary

Following completion of attendance on the Work Programme, the claimant was required to agree to an amendment to her jobseeker’s agreement, increasing the number of ‘steps’ she would take from three a week to 14. She was then told she was being referred to a mandatory two-week training scheme called Skills Conditionality. The claimant objected and eventually lodged an application for judicial review. Subsequently, the claimant was required to sign another amendment to her jobseeker’s agreement, increasing the number of weekly work-seeking steps to 20. Before that could be subject of a challenge, the claimant ceased claiming jobseeker’s allowance.

Judge Hickinbottom rejected arguments by the claimant that the Skills Conditionality scheme was not adequately described in the relevant regulations (the Jobseeker’s Allowance (Schemes for Assisting Persons to Obtain Employment) Regulations 2013 No.276), and that the requirement on her to participate failed to comply with the notice requirements in those regulations. Skills Conditionality was adequately (even if only quite generally) described in regulation 3(7), and the case was therefore distinguishable from the 2011 scheme that was the subject of decisions culminating in that of the Supreme Court in R (Reilly and Wilson) v Secretary of State for Work and Pensions [2013] UKSC 68 (30 October 2013) (paragraphs 74–75). The notice to participate sent to the claimant fulfilled the requirements of regulation 5(2)(c) to contain ‘details of what the claimant is required to do by way of participation in the Scheme’, even though it did not contain details of the required hours of attendance, given the surrounding circumstances which included that requirement was to attend a specific course at a college over an 11-day period, and the nature and content of the course had been explained to the claimant (paragraphs 79–83).

Regarding the jobseeker’s agreement, the claimant argued that under sections 1 and 7 of the Jobseekers Act 1995 and regulation 18 of the Jobseeker’s Allowance Regulations 1996 No.207, as applied by CJSA/1814/2007, the agreement could not require her to take more than three steps a week. Rejecting that, the judge held that although the agreement ‘may of course assist in identifying what a claimant needs to do to demonstrate that he is actively seeking work’, that was not the only purpose of the agreement, and that failure to fulfil commitments in the jobseeker’s agreement did not in themselves lead to loss of entitlement (paragraph 94). Rather, section 7 and regulation 18 defined the requirement to be actively seeking work, so that it was where they were breached that entitlement was affected. Regulation 18 requires that ‘a person shall be expected to have to take more than two steps in any week unless taking one or two steps is all that is reasonable for that person to do in that week’. But the correct construction was that regulation 18 ‘set a presumptive norm for the minimum number of steps’ that could be required – ie, not a maximum of three. Consequently, a claimant could be required to take more than three steps per week to demonstrate that s/he is actively seeking work, and the adviser in the claimant's case had been entitled to increase the number of steps in the jobseeker's agreement (paragraphs 95–96).

Decision in brief

No specific such right to reside in the rules – no valid analogy with decision in Saint Prix v SSWP, Case C-507/12, reported as [2014] AACR 8 – that concerned stopping work in late-stage pregnancy and it being established that that was a ‘special’ case (ie, concerning pregnant women still in the labour market) rather than creating a category of workers forced to stop work – no argument based on proportionality – that only applies to ‘lacuna-filling’ an unintended gap in the relevant European Union law ( (SPC) [2017] UKUT 179 (AAC) and LO v SSWP (IS) [2017] UKUT 440 (AAC)) – giving up work in these circumstances not an unintended gap – clear authority that a parent who has left the labour market to care for her children does not retain the status of worker (SSWP v Dias [2009] EWCA Civ 809 cited).

Summary

Ms Mirga is a Polish national who had first come to the UK as a child, and she was aged 19 at the time of her claim for income support on the basis of pregnancy. Previously, she had worked in the UK for several months. Her claim was refused on the basis that she did not have a right to reside. Mr Samin, an Austrian citizen, was not a worker or looking for work by the time he applied for housing assistance under homelessness legislation, and had poor mental health including at a moderately high risk of suicide. His application was refused on the basis that he did not have a right to reside.

It was argued for the claimants that the refusals were unlawful as the domestic regulations under which right to reside was refused (the Immigration (European Economic Area) Regulations 2006 No.1003) infringed their rights under the Treaty, in particular the right under Article 21.1 to move and reside freely within the EU, and the prohibition under Article 18 of discrimination on grounds of nationality. It was also argued that the refusal of a right to reside to the claimants was flawed as it had made no reference to the proportionality of such a refusal, bearing in mind all the circumstances of their cases.

By a unanimous decision, the Supreme Court rejected both arguments and dismissed the appeals. Giving the decision for the Court, Lord Neuberger considered that the rights under Articles 21.1 and 18 only arose where the claimant lawfully resided under EC Directive 2004/38/EC ('the Directive'), which provided for the right to reside rules (paragraphs 43-47). Further, the Court considered that the decisions of the European Court of Justice (ECJ) in Dano and another v Jobcenter Leipzig (Case C-333/13) [2015] 1 WLR 2519 and Jobcentre Berlin Neukoln v Alimanovic (Case C-67 /14) [2016] 2 WLR 208 provided clear guidance that the rights relied on by the claimants only existed where they resided in accordance with the Directive - ie, had a right to reside (paragraphs 48-57).

The Court also dismissed the proportionality argument. In this context, the claimants had referred particularly to the decision of the ECJ in Pensionsversicherungsanstalt v Brey (Case C-140/12) [2014] 1 WLR 1080, in which the Court held that before finding that the residence of a claimant placed an unreasonable burden on its social assistance system, it was required to take account of the individual situation of the person concerned. But, in the present decision, the Court considered that Brey could not assist the appellants in the light of the subsequent reasoning of the ECJ in Dano and Alimanovic. Lord Neuberger commented: 'it seems unrealistic to require "an individual examination of each particular case'" (paragraph 69), and that 'where a national of another member state is not a worker, self-employed or a student, and has no, or very limited means of support and no medical insurance (as is sadly the position of Ms Mirga and Mr Sam in), it would severely undermine the whole thrust and purpose of the 2004 Directive if proportionality could be invoked to entitle that person to have the right of residence and social assistance in another member state, save perhaps in extreme circumstances' (paragraph 69). The claimants' applications represented precisely what the ECJ in Dano had said was the aim of the 2004 Directive to stop, namely 'economically inactive Union citizens using the host member state's welfare system to fund their means of subsistence' (paragraph 71).