Still unsettled but no longer undignified?

The saga so far

In Case C-709/20 CG v Department for Communities, the Court of Justice of the European Union rejected the nationality discrimination argument advanced by the claimants and held that regulations excluding pre-settled status under the European Union (EU) Settlement Scheme from being a qualifying right to reside for benefit were not unlawful. That meant the Supreme Court was compelled to allow the Secretary of State’s appeal in Fratila ([2021] UKSC 8). However, CG also appeared to provide, after years of legal challenges seeking to find ways around the right to reside test in ‘hard cases’, a route, via the EU Charter of Fundamental Rights (‘the Charter’), to benefit entitlement for people who do not satisfy the test but where refusal of benefit would risk rendering them destitute.

In Star Wars fashion, that new hope for EU nationals was dashed, as the DWP struck back by adopting a position that the end of the implementation period, on 31 December 2020, meant no one could rely on CG, as the Charter was not a part of retained EU law. Now though, SSWP v AT (Aire Centre and IMA intervening) UC [2022] UKUT 330 (AAC) represents the return of the Charter and therefore the principles in CG: the Upper Tribunal has held that the Withdrawal Agreement, given direct effect in UK law, continues to mean decision makers cannot refuse universal credit (UC) where to do so would risk a claimant not living in ‘dignified conditions’ – ie, being without the basic necessities needed in order to exercise their rights under the Withdrawal Agreement in conditions compatible with human dignity (Article 1 of the Charter). In addition, the Upper Tribunal in AT provides clear guidance on when the test in CG will be met.

The continuing story

However, the series looks like it will continue with a sequel: the government is appealing to the Court of Appeal against the decision of the Upper Tribunal in AT. While that appeal, anticipated to be listed for 9 and 10 March, is ongoing, it is seeking not to implement the decision by using its anti-test case powers to stockpile decision making in cases where pre-settled status holders would otherwise fail the right to reside test. That approach is arguably unlawful generally and, even if that is wrong, the DWP policy is not to use those powers where they would result in hardship which, given the threshold set by the Upper Tribunal in AT, is likely to be most, if not all, of those who stand to gain from application of the judgment.

Who does the judgment in AT apply to?

Almost all those with pre-settled status (whether EU nationals or third-country nationals) can potentially rely on the judgment in AT if their core facts are similar to those of AT (see below).

The possible exceptions to that are for those who have pre-settled status because they have a ‘Zambrano’ right to reside (ie, obtained pre-settled status as the primary carer of British children) or a ‘Surinder Singh’ right to reside (ie, obtained pre-settled status as the third-country national family member of a British citizen who had worked in the EU). Those persons are not exercising rights conferred via the Withdrawal Agreement and so probably cannot rely on the Charter.

Of course, a claimant with pre-settled status who has another, qualifying, right to reside (for example, is the primary carer of the child of a worker who now receives education) will not need to rely on AT. Advisers should identify whether any possible alternative rights have been identified before turning to AT.

Test to be satisfied

However, AT requires a claimant’s circumstances to be pretty grim before it can apply: those who are not at risk of being in a situation where they cannot, or risk not being able to, meet their and their children’s most basic needs cannot rely on the judgment.

Advisers will need to be able to help claimants make the case that there is such a risk. That can most easily be done in a statement from the claimant, accompanied by any supporting evidence which addresses the headings given below. CPAG has prepared a template witness statement to guide an adviser to assist a claimant cover the relevant headings and provide the best possible evidence.1

Unable to meet basic needs

The Upper Tribunal provides guidance on what it means to be unable to live in dignified conditions at paragraph 125 of the judgment. Although needs vary from person to person, they include housing (adequately heated), food, clothing and hygiene. Even a limited period without these things may breach the Article 1 right, particularly if the claimant is vulnerable.

Risk assessment

The legal test is whether there is an actual and current risk that they might not have such resources.

Unable to work

Most people will be able to avoid such a risk because they are able to obtain an income through work (see paragraph 117 of the judgment). Inability to work could be due to health problems or to caring responsibilities.

No sufficient and regular support from a third party

The Upper Tribunal did not decide whether charitable support could ever obviate a need for UC as AT was not getting such support at the required levels. In any case where the evidence shows the claimant cannot get ‘regular and reliable payments from a charitable source which were adequate to meet their most basic needs’, that should mean the issue does not arise. The same approach should apply in relation to support from friends or family.

No other adequate support from a local authority

The decision maker cannot refuse to provide UC using the argument that social services support (typically section 17 of the Children Act 1989 for families with children) might or ought to be available at a level that enables the claimant and their children to meet their most basic needs. Decision makers are directed to ‘focus on the concrete factual position, not the theoretical legal one’ (paragraph 151). Cases may exist where section 17 support is adequate (see paragraph 152 of the judgment) and so everything will depend on what the evidence shows.

Challenging anti-test case stays

The DWP has decided that it can exercise its power to stockpile cases which might benefit from the judgment in AT rather than deciding them while the appeal in the Court of Appeal is pending. This can happen when a new claim for UC is made, or a claim has been refused and the claimant has requested a mandatory reconsideration of that decision.

Given the desperate situation of claimants who may benefit from the judgment, that approach is disappointing. While the Court of Appeal is due to hear the case on 9 and 10 March, its judgment may take some time to hand down (or the court could even decide to refer a question to the Court of Justice, which would add further time). Furthermore, even if the Secretary of State’s appeal is dismissed, then there is the possibility of a further attempt to appeal to the Supreme Court.

A further problem is that we understand the DWP to be staying making decisions in all cases where it is not satisfied the claimant has a qualifying right to reside. That means claimants who have an arguable case that they do have a qualifying right to reside (for example, that they retain worker status) are deprived of an opportunity to challenge that decision (by revision or appeal). It also means that the DWP is making no assessment of whether the individual facts are such that they are at risk of destitution should UC be refused. That throws up a logical difficulty in the DWP’s approach. On the one hand, the only claimants who can benefit from the judgment in AT are those where not giving them UC does risk meaning they will be without the basic necessities of life. On the other hand, the DWP’s own guidance in the Suspension and Termination Guide, which explains how this power to stay should be used, says at paragraph 4053: ‘If the claimant is suffering hardship, a determination on the substantive benefit issue should be made, and any payments due from that award must then be made.’

Arguments

It is difficult to see that there will be any cases where the claimant could benefit from AT but would not be in hardship due to a stay in making the decision. Because of that, it is arguable that the DWP blanket approach in applying the stay is unlawful. It can be argued that:

1. The Secretary of State for Work and Pensions’ (SSWP) policy in the Suspension and Termination Guide means a stay should not be used as it is causing hardship (paragraph 4053 of the guidance, as cited above). Evidence of this can be provided now but should have been considered by the SSWP before imposing the stay (paragraph 4100).
2. The Charter of Fundamental Rights provides at Article 47 that claimants have a right to an ‘effective remedy’ before a tribunal within a ‘reasonable time’. Given the nature of the rights at issue (immediate risk of breach of Article 1 of the Charter), then staying the decision is a breach of that right as well – the decision maker must either provide UC or refuse it and allow an expedited onward appeal to the First-tier Tribunal.
3. The Secretary of State agreed to and did pay AT ongoing UC once she had succeeded at the First-tier Tribunal and prior to the appeal being dealt with in the Upper Tribunal. There is a requirement to treat like cases alike, and in many of these cases there will be no difference between the claimant’s situation and that of AT.

Advisers may encounter three different situations.

• Claimants with an arguable qualifying right to reside but whose facts are not such that they could benefit from AT if that is rejected – eg, a person who arguably is the primary carer of child of a worker in education but whose partner works and so is not at risk of destitution. For this category, representations for the qualifying right to reside should be made in addition to saying simply that AT does not apply as they do not risk destitution.
• Claimants with such an arguable qualifying right to reside, whose situation is arguably such that without UC they will lack the basic necessities. Here, in addition to representation on the qualifying right to reside, representations can be made that the stay decision will cause hardship and so should be lifted. In getting the stay lifted, a positive UC entitlement decision on the basis of the qualifying right to reside should nonetheless be pursued, given that awards paid due to AT being found to apply may be recovered if the appeal in that case is successful. However, if this is not accepted (whether by the DWP or on appeal by a tribunal), entitlement on the basis of AT should be the fallback.
• Claimants who clearly have no right to reside but who do lack basic necessities without UC. Again, the argument will be that hardship means the stay should be lifted. It should then be possible to obtain a positive UC entitlement decision on the basis of AT

What if the argument is rejected?

If the decision maker refuses to make the decision, then the above points can be made in pre-action correspondence threatening judicial review (template letters are available on CPAG website).

Appeals

Where arguably AT applies and a case has already received a mandatory reconsideration request, then appeals ought to be dealt with on an expedited basis. Advisers will of course need to have the case well prepared and be able to provide evidence if asking for this (template on CPAG website).

The First-tier Tribunal could attempt to stay such appeals using its case management powers, given the ongoing appeal of the Secretary of State against AT. Arguably, this would not be a proper use of the power as it would effectively undermine the appellant’s Article 47 Charter right to an effective remedy (what is a reasonable time in such a case is very short, given the claimant is without adequate income to live a dignified life). It is arguably not consistent with the overriding objective to deal with cases fairly and justly, given the importance of the issue to the claimant. Any directions staying an appeal to await the outcome of an appeal in AT can be challenged by making a further application for that direction to be set aside (rule 6).