Advising Migrant Groups eBulletin - January 2023
In this issue
- Destitute persons with pre-settled status – Upper Tribunal victory
- EU citizen guide to claiming benefits in the UK
- Higher rate pregnancy and baby Best Start Grants for refugees
- UC advances while waiting for a NI number
Destitute persons with pre-settled status – Upper Tribunal victory
CPAG recently won an Upper Tribunal case where the Judges upheld a decision that destitute people with only pre-settled status (PSS) under the EU Settlement Scheme (EUSS) may be entitled to universal credit (UC).
CPAG argued that even though the UK has left the EU, the EU Charter on Fundamental Rights (‘The Charter’) still applies to those covered by the Withdrawal Agreement, eg those who have status under the EUSS. Most significantly in this case the first article of the Charter says “Human dignity is inviolable. It must be respected and protected”. The three judges making up the Upper Tribunal agreed.
The case before the Upper Tribunal concerned a Romanian woman living in a refuge with her child while escaping domestic abuse. She had been left destitute after being refused UC. She had PSS but no other right to reside that would allow her to pass the habitual residence test for UC. All she had to survive on was child benefit and small amounts of help from social work and elsewhere.
Her appeal to the First-tier Tribunal had been successful. The judge accepted that the Court of Justice of the EU (“CJEU”) decision in the case CG v Department of Communities for Northern Ireland [2022] (C-709/20) (the CJEU decision which was also applied by the Supreme Court to the Fratila case) applied in her circumstances. As such, her exclusion from UC due to her only right to reside being her PSS was disapplied, as to do otherwise would mean she and her child could not live in dignified conditions. The Secretary of State for Work and Pensions (SSWP) disagreed, arguing that this protection found in The Charter no longer applied in the UK after the end of the Brexit ‘transitional period’ on 31 December 2020, and appealed.
The three-judge panel of the Upper Tribunal rejected the SSWP’s appeal and essentially confirmed the First-tier Tribunal’s decision. The SSWP has been granted permission to appeal but pending the outcome of any such application, the Upper Tribunal’s decision is the leading authority on these matters. Significantly the claimant was awarded UC following the First-tier Tribunal’s decision and has continued to receive it, indicating that in similar cases UC may also be awarded despite the SSWP’s appeal (but also note that CPAG has heard of such claims being ‘stockpiled’ pending the outcome of the SSWP’s appeal).
It should be noted that this decision does not mean that all those with PSS refused UC due to not having a qualifying right to reside must be awarded it. It does not ‘strike down’ the amendments made to the UC Regulations excluding those whose only right to reside is PSS. What it does do is hold that the SSWP must make an ‘individualised’ assessment of whether a claimant(s) and their dependants would have their human dignity violated by not being able to meet their basic needs if UC is not awarded. These basic needs will vary between individuals but typically include food, hygiene, accommodation and clothing. The assessment of support available to prevent such a violation can include local authority duties to children under the Children Acts applicable in the UK and an ability to work, but must take account of what is ‘actual and current’ and not what might just be theoretically available or only available after going through legal challenges.
Further information about the judgment and advice about what advisers should do in similar cases can be found on CPAG’s test case page: Destitute EU nationals with PSS.
EU citizen guide to claiming benefits in the UK
CPAG in Scotland has collaborated with the Migrant Essential Workers research project to produce a basic guide to claiming benefits for EU and EEA nationals. The guide is aimed at potential claimants rather than advisers and only provides a very general overview of the main entitlements. However, it will be of use to advisers and support workers who do not specialise in benefits advice, as well as clients.
It is available to download for free here: EU citizen guide to claiming benefits in the UK. Further CPAG resources for those working with migrant groups can be found on our Benefits for Migrants topic page, and other information and resources are available on from the Migrant Essential Workers.
Best Start grants for refugees
From 14 November 2022, those with refugee status, humanitarian protection or who have been resettled under the schemes for Afghan and Ukrainian nationals can get the higher rate of the pregnancy and baby payment Best Start Grant (BSG), even if it is not for their first child. The policy is to help those with other children born outside the UK but who are now ‘starting from scratch’ due to the circumstances under which they came to the UK. So, if such a parent applies for a BSG and it is for their first child born in the UK, they will get the higher rate of the pregnancy and baby grant rather than the lower rate that usually applies to those who already have a child under 16.
See CPAG’s website for more information about this rule and who can qualify for BSGs: Pregnancy and baby payment.
UC advances while waiting for an NI number
CPAG recently challenged a decision where a Vietnamese woman granted leave to remain in the UK was refused a UC advance payment because she had applied for a national insurance number (NIno) but she had not yet been allocated one. CPAG lost before a three-judge panel Upper Tribunal, but the case is due to be heard by the Court of Appeal by the end of March 2023.
CPAG argued that the wording of the NIno requirement in the legislation that applies to most GB-wide benefits does not actually require a NIno to have been allocated. It can be satisfied by making an application for a NIno and providing all the information and evidence necessary for one to be allocated, but the NIno itself does not need to have been allocated. Previous Upper Tribunal decisions appear to support this. CPAG also argued that the refusal violated the claimant’s human rights and was indirect racial discrimination contrary to the Equality Act 2010.
In this case, after some misadvice from DWP, a NIno application had been made following the UC application, but there was then a delay in the processing of the NIno application which left the claimant and her child destitute. DWP refused to pay a UC advance before the NIno was allocated, even though the requirement was arguably fulfilled by the application for one being made and the necessary evidence and information submitted. CPAG assisted the claimant to judicially review this refusal, the case then being transferred to the Upper Tribunal for a decision. The judges decided that even though a NIno application had been made and necessary information and evidence submitted, the latter was only sufficient once verified. They accepted that the DWP was entitled to refuse an advance until it had done so. It also dismissed the human rights and racial discrimination arguments.
Further information about the case and advice about what can be done in similar cases see CPAG’s test case pages here: National insurance numbers and universal credit