Right to reside after AT

Introduction

The refusal of permission means that the position as declared by the Upper Tribunal on 12 December 2022 in SSWP v AT (Aire Centre and IMA intervening) (UC) [2022] UKUT 330 (AAC) and the Court of Appeal (in its judgment upholding that decision – [2023] EWCA Civ 1307) is now settled law. At least some European Union (EU) citizens and their family members with pre-settled status will have an entitlement to benefit even though they lack the requisite preserved EU law right of residence, if to refuse that benefit would breach their EU right to live in ‘dignified conditions’ – ie, risk them being without the ‘basic necessities’ of life.

The Welfare Rights Bulletin article Still unsettled but no longer undignified? sets out the test that needs to be satisfied in order to determine whether there is such a risk. The subsequent article A guide to dignity? highlighted the DWP guidance that was in force while the litigation was pending and discussed the rather limited view the DWP seemed to have about the scope of AT.

Following the refusal of permission to appeal by the Supreme Court, the following should apply.

• On any new claim for universal credit (UC) the decision maker will have to apply the law as declared in AT. That is also true for claims for pension credit (PC) or housing benefit (HB): it is no longer an option to stay decision making in these cases.
• The DWP must now work through the cases where decision making had been stayed and make decisions in line with the AT judgment.
• If any cases were stayed at tribunal level, then the tribunal should get on with deciding those cases (again applying AT as necessary).

New claims

Where a person with pre-settled status makes a claim for UC, PC or HB, then before refusing to make an award on the grounds the person does not have a right to reside the decision maker must determine, firstly, whether they are within scope of Article 10 of the Withdrawal Agreement and, secondly, if so whether a refusal would risk them being without the basic necessities – as described in Still unsettled but no longer undignified?. The latter step must involve gathering evidence of the likely effect of a refusal of UC.

CPAG would be interested in hearing1 about any case after 7 February 2024 where a claim is refused for a person who clearly does fall within the scope of AT without first gathering evidence to enable consideration of the risk to the claimant without the basic necessities of life due to a refusal of benefit.

Dealing with stockpiled cases

Once the Upper Tribunal gave its judgment on 12 December 2022, the DWP commenced ‘stockpiling’ (or ‘staying’) decision making in cases where, in its view, AT applied but the claim would be refused (or the award ended) if it was decided without applying AT, but there might be an award if AT applied.

The DWP must now decide the roughly 3,000 stayed cases. Given that the stays appear to have been imposed without first seeking information from the claimants about whether the effect of a stay would produce hardship or whether the claimant would be at risk of not having the basic necessities of life as a result of the refusal of UC, the DWP will, in order to determine these cases, need to seek evidence from the claimant as to the effect or likely effect of not having had UC awarded before making the decisions. It is not known what process the DWP will adopt in order to gather this information (although a freedom of information request is seeking that information).2 One issue that may arise, given how long some of these cases have been stayed, is that a claimant’s situation will have changed (perhaps several times) since the stay was imposed. The principle in these cases is that the decision maker will need to consider the claimant’s circumstances from when the claim was made right down to when it is decided – ie:3

• there may be periods during which such a claimant had a qualifying right to reside – benefit should be awarded for those periods;
• there may be other periods during which there was a risk of destitution without UC, and again benefit will need to be awarded for those periods;
• it is the situation at the date of decision that will determine whether there should be an ongoing award put in place.

Claimants whose cases have been stayed may now wish to provide evidence about their circumstances to show their dignity risked (or risks) being breached by a refusal of UC. That can be done using the template witness statement on the CPAG website, which may need some adapting to deal with different periods between the date of claim and now.4

CPAG is interested to hear from advisers assisting claimants whose cases have been stockpiled and to learn what steps the DWP is now taking in those cases.

Stayed and newly arising First-tier Tribunal cases

It is unclear how many cases have been stayed at First-tier Tribunal level. Certainly, it is difficult to see how such stays can have been fair and just in cases where the claimant was, while the appeal was ongoing, at risk of destitution.

In cases (whether newly arising or resulting from decisions being made for stockpiled cases) where the DWP decides a claimant is not assisted by AT, then advisers can continue to pursue appeals and, in appropriate cases (eg, if without the UC award your claimant is entirely destitute), should seek to have them expedited by the tribunal, as appropriate (the template for an expedition application may assist5). CPAG is interested in understanding how the First-tier Tribunal is responding to such expedition requests and would welcome contact from advisers on this issue. It should be possible and is certainly desirable that First-tier Tribunals decide such cases within a matter of days not weeks or months.

Anti-test case rule and official error challenges

The DWP position is that it does not have to apply AT in respect of periods prior to 12 December 2022, as the Upper Tribunal decision is a relevant decision under the ‘anti-test case rule’ at section 27 of the Social Security Act 1998. It is important to remember:

• at appeal, the anti-test case rule only applies in situations where the DWP decision in the case was made prior to 12 December 2022. So if the claimant has had their claim refused before that and is now at appeal, AT should be applied in any event (that is because section 27(1) only applies where ‘after the date of the relevant determination a decision falls to be made by the Secretary of State’. Whereas, in these cases the decision falls to be made by the First-tier Tribunal;
• refusals of UC made prior to 12 December 2022, where the claimant would have had an award were the AT judgment to have been applied, are still wrong in law (AT declared the law; it did not create it). The DWP will take the position that these will only be errors of law shown to be such by AT and so official error revision is not appropriate. However, such decisions can still be superseded – and the supersessions should take effect from 12 December 2022 (regulation 35(5) of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013);
• additionally, it may be arguable that the anti-test case provisions, or the limitation that stops errors of law counting as official errors if that is only shown to be such by a test case, should not be applied where to do so would deprive a person of a remedy for a breach of their fundamental right to dignity – where the Withdrawal Agreement protects EU law fundamental rights, it is difficult to see how the anti-test case rule can be used to prevent a remedy for those rights.

New issues that may arise

Given the DWP position on the narrow scope of AT (in terms of excluding third-country nationals, and its view of who falls within Article 10 of the Withdrawal Agreement), it is likely those issues will eventually have to be decided by the Upper Tribunal. It is arguable that all EU nationals with pre-settled status (or their family members) are within the scope of Article 10 and advisers should take that approach in challenging decisions. CPAG is happy to advise on such cases at an early stage.

Additionally, while AT provides a remedy for some pre-settled status holders who would be destitute without appropriate means-tested benefits, there remains an (untested) argument for those with no other right to reside and who cannot rely on AT (eg, because they are able to work) that the equal treatment rule in Article 23 of the Withdrawal Agreement results in a right to benefit, even though that was not the result arrived at applying Article 24 of Directive 2004/38 in Case C-709/20 CG v Dept for Communities. The argument here is that the UK, by adopting a constitutive scheme which confers rights as allowed by Article 18 of the Withdrawal Agreement, has now put pre-settled status holders in a different, and better, position than that which was obtained prior to 31 December 2020.