A guide to dignity?

Introduction

In the recent SSWP v AT [2023] EWCA Civ 1307, the Court of Appeal upheld the decision of the Upper Tribunal in SSWP v AT (AIRE Centre and IMA Intervening) [2020] UKUT 330 (AAC).

The decision of the Court of Appeal does not disturb in any way the approach which the Upper Tribunal holds tribunals and decision makers should take in deciding whether someone with pre-settled status, but without a qualifying right of residence, can nonetheless obtain universal credit (UC), because not to award the benefit would result in a breach of their rights under the European Union (EU) Charter of Fundamental Rights (‘the Charter’). That approach was discussed in the article ‘Still unsettled but no longer undignified?’ (Bulletin 292).

Next steps?

Although the Secretary of State for Work and Pensions was refused permission to appeal further by the Court of Appeal, he has until 6 December 2023 to file a renewed application for permission directly with the Supreme Court. While the Secretary of State is considering whether to do that and has certified that this is the case (or assuming an application is made), what might happen? Formally, until an application for permission to appeal to the Supreme Court (and any resultant appeal if permission is granted) is determined, then section 25 of the Social Security Act 1998 allows for the ‘stay’ of decision making in cases where applying the judgment of the Upper Tribunal (and now the Court of Appeal) would make a difference – ie, leading to UC being awarded. It is highly likely a further attempt at an onward appeal will be mounted.

To stay or not to stay

As pointed out in the previous Bulletin article, the decision maker should not stay making a decision where to do so would cause hardship: that would be contrary to the DWP’s own Suspension and Termination Guide at paragraph 4100. It is difficult to imagine a case where a refusal of UC would risk leaving a claimant unable to meet their basic needs – ie, meeting the AT test set out by the Upper Tribunal, but where delaying making that decision awarding UC would not cause hardship.

Nonetheless, the actual practice of the DWP appears to be to stay making a decision in all cases as a default, but to ask claimants to get in touch if that causes them hardship and then to lift the stay (as provided for in paragraph 4053) only where that happens. Thus the decision maker does not appear to proactively consider whether staying would cause hardship but instead leaves it to claimants to alert them to this after their cases having been stayed. Unless and until that practice is itself ruled unlawful, as it arguably is, it is vital for advisers assisting claimants who have decisions about their entitlement stayed in circumstances that leave them without adequate income to help them make representations about the stay being lifted. CPAG’s guidance note for advisers and other resources can help with this.1

Operational guidance

A request under the Freedom of Information Act 2001 has now obtained a notice added to the DWP intranet on the ‘DMA Noticeboard’ (‘noticeboard guidance’) and detailed Operational Guidance called AT Charter Instructions – decision making steps (‘steps guidance’) issued to decision makers on how to approach cases where AT might make a difference while the litigation is ongoing. The guidance is available on the CPAG website.2 Consideration of the guidance is useful for three reasons.

• Firstly, there is much that is helpful in terms of setting out the procedure the DWP should follow to which advisers may wish to refer in correspondence to ensure that their clients’ cases are properly dealt with.
• Secondly, the guidance contains a detailed explanation of the DWP approach to the test for whether a claimant can satisfy their basic needs (and hence might be at risk of a breach of their Article 1 right to dignity under the Charter) and the sort of evidence that can be provided. Advisers can assist their clients by pointing to this where it assists.
• Thirdly, the guidance reveals the rather limited, and possibly unlawful, view of the Secretary of State about who can potentially benefit from AT. Should the Secretary of State maintain those positions it is likely to mean further cases challenging the approach will have to be brought.

Procedure set out in the DMA Noticeboard

The noticeboard guidance clarifies what decision makers should do with cases following the AT decision by the Upper Tribunal. It applies to decision making on new claims for UC and on revision or supersession. It is said to apply only to those with pre-settled status who are EU citizens (see below on whether that is lawful).

Where the guidance applies, decision makers are told to first determine whether the claimant has a qualifying right to reside in the usual way and award benefit if they do.

Only if they are found not to have such a right to reside should AT be considered. At this stage, decision makers are told first to consider whether the claimant is within the scope of AT (see below). If the claimant is not within scope, UC can at that point be refused. If the claimant is within the scope of AT, then decision makers are told also to refuse the claim if the claimant is able to work. For those in scope but not able to work, decision making is to be stayed. If a claimant, having been notified of this (and the guidance contains the standard wording that should be used) then raises the fact this could cause hardship, consideration should be given to lifting the stay and giving effect to AT – ie, awarding UC.

It is worth considering each step of that procedure.

Scope of AT – what does that mean?

The noticeboard guidance at paragraph 3 states it does not (and therefore the DWP thinks AT does not) apply to:

• those who have a certificate of application to the EU Settlement Scheme (EUSS) but no grant of leave. Note: that might be wrong as Article 18(3) of the Withdrawal Agreement deems all the rights under the Agreement to apply to people waiting for decisions. But the sticking point could be that such persons, unlike AT, do not have a domestic law right of residence;
• non-EU citizen family members of EU citizens. Note: that is very arguably wrong in that Article 13(2) of the Withdrawal Agreement makes clear such persons are covered, and indeed the Court of Appeal reasoning proceeds on the assumption that is correct (see paragraph 95 of the judgment3). Advisers with non-EU national clients who are family members of EU nationals should argue they are covered by AT;
• European Economic Area (EEA) nationals from the non-EU countries of Norway, Iceland and Liechtenstein. Note: the EU Charter of Fundamental Rights does not technically apply to such persons. However, it may be that as respect for dignity is a general principle of EU law, then the need for a homogenous and reciprocal development of law in the EU and EEA allow the same result as if the Charter applied.

Additionally, in the steps guidance it is said that AT does not apply to those ‘not in scope of the Withdrawal Agreement at the end of the transition period meaning that they did not exercise a treaty right […] right before 31 December 2020’. Essentially, it seems that the approach is that only those who had an EU law right of residence on 31 December 2020 can benefit. That stems from the DWP interpretation of Article 10 of the Withdrawal Agreement, which sets out the personal scope (ie, who is covered) by the parts of the Agreement concerning citizens rights.

However, Article 10 may be interpreted differently. The phrase repeated through the Article is that it applies where there has been residence in accordance with EU law before the end of transition and where the person ‘continue[s] to reside there thereafter’. It is not clear that this means this later residence also needs to be in accordance with EU law. This is not an issue addressed by AT, as on her facts on 31 December 2020 she was within the initial three-month period of residence provided for under Article 6 of Directive 2004/38.

If the DWP applies its guidance to any of these cases it views as not covered by AT, it would refuse UC. Those decisions can then be challenged via revision and appeal. Advisers should contact CPAG for advice on submissions and may want to try to get appeals expedited (see the template for this).

AT and ability to work

The steps guidance at paragraph 6 explains that ‘In light of […] AT […] where a claimant is able to work, refusal of UC will not violate their Charter rights as they are themselves able to avoid destitution by working’.

Paragraph 7 of the guidance lists factors which should be considered when determining if someone is able to work, including physical or mental health conditions, homelessness, having childcare or other caring responsibilities, being a victim of domestic violence and other complex needs. This acceptance of a wide range of factors which might make someone unable to work is to be welcomed. Paragraphs 8 and 9 deal with how the conditionality group for UC a claimant is in might effect the decision on whether they are able to work: those not in a group where a work search requirement could be imposed should be accepted as not able to work and while being in the ‘intensive work search regime’ group is a strong indicator of ability to work, decision makers should check whether conditionality is currently applied with a work coach. Paragraph 10 gives further questions a claimant could be asked about ability to work. Advisers will be aware that many claimants might be put on full conditionality for UC despite having significant difficulties working and so should ensure these are raised when AT is considered.

One area the guidance does not consider is those who might only be able to work so few hours that any wages would not give them sufficient income to avoid destitution. Similarly, it overlooks third-country nationals for whom being a worker would not give rise to an alternative right to reside. Such persons could easily find themselves in a situation where even working full time, the income from work alone would not allow them to meet the basic needs of themselves and their children – for example, because rent and childcare cost so much. It must be arguable that the Upper Tribunal did not mean to say the dignity of such persons did not need to be protected when it declared that an ability to work would usually end an Article 1 claim.

AT and the Charter threshold

Section D of the steps guidance sets out the approach decision makers should take to decide whether the claimant’s situation is sufficiently dire that UC must be allowed. Paragraph 15(e) is unfortunate in that it expressly states the situation must equate to ‘inhuman and degrading treatment’ under Article 3 of the European Convention on Human Rights (ECHR) (Article 4 of the Charter). That must be wrong, given the Court of Appeal ruled there was an independent content to the Article 1 dignity right such that not all breaches of dignity need meet the ‘inhuman and degrading treatment’ threshold.

More generally, if the guidance is not read carefully, it could be thought the claimant needed to show actual and current hardship at paragraphs 13 to 16. However, paragraph 18 makes clear that the test is on ability to meet most basic needs, not just now but ‘in the immediate future’ – ie, whether there is a risk of that situation arising. Advisers should find paragraphs 19 and 20, which go through the sort of issues to consider when deciding whether a claimant can meet their most basic needs, helpful and may wish to prepare with a claimant what the answers to those questions are when making representations or providing evidence.