DWP failure to make a habitual residence test decision and decide a claimant’s UC claim within a reasonable time

You can use this template if all of the following apply:

• your client has applied for universal credit and no decision has been made because DWP have not yet decided whether your client satisfies the habitual residence test. There has been an unreasonable delay
• your client has a right to reside and is habitually resident and has provided evidence of this to DWP, ie - your client is not British or Irish and has:
  • EU Settled Status, or
  • EU Pre-Settled Status and a qualifying Right to Reside under the EEA Regs, or
  • applied to the EU Settlement Scheme and is awaiting a decision and has a qualifying Right to Reside under the EEA Regs, or
  • leave to enter or remain in the UK other than pre-settled status or leave to enter as a holder of an EUSS Family Permit of Travel Permit
  • non-EEA leave to remain
• your client is experiencing financial hardship as a result of the delay
• your client has provided all the evidence that DWP has asked them for

Do not use this template if:

• your client has received a mandatory reconsideration notice, the correct route is to appeal, or
• there has not been an unreasonable delay, you must need a quicker decision, not only want one, or
• your client has been asked to provide evidence or information and they have not yet provided it (even if they have provided it before)

These letters are for advisers in England and Wales. Please be aware that the pre-action protocol doesn't apply in Scotland. See our document explaining some of the changes needed to use them in Scotland.

The DWP is under a duty to consider all claims for benefit within a "reasonable time" (R(C and W) v Secretary of State for Work and Pensions [2015] EWHC 1607 (Admin)). What constitutes a "reasonable time" depends on the circumstances, including the impact on the claimant and the complexity of the case. The duty to make decision within a reasonable time applies to decisions under section 8 of the Social Security Act 1998 which requires the Secretary of State to "decide any claim for a relevant benefit." 

The claimant's case is not complex, their right to reside is clear and they have provided sufficient evidence, making the extended delay unreasonable. The impact on the claimant is severe as they have little or no other income to fall back on. 

The delay in deciding the claimant’s UC claim due to a delay in deciding whether the claimant satisfies the habitual residence test may constitute unlawful discrimination contrary to Article 14 with Article 1, Protocol 1 of the European Convention on Human Rights since delays in habitual residence test decisions disproportionately affect non-UK nationals, their partners, children and dependants, while UK nationals are unlikely to experience similar delays. While operating a habitual residence test is justified, unreasonable delay in completing it is not, and it is for the DWP to justify such differential impact.

Information about your client:

• name
• address
• national insurance number (NINo)
• date of birth (DOB)
• nationality/immigration status

Background facts, such as:

• your client’s right to reside and how and when this has been evidenced to the DWP
• your client’s family, housing and work situation
• any health difficulties or disabilities your client has
• any capacity issues or vulnerability your client has
• what financial hardship your client is experiencing as a result of the delay
• any risk that your client will be unable to afford to pay for their housing, heating or food, any need to use food banks
• any detriment to your client's health and welfare or to any of their family members' health and welfare

Information about the decision:

• the date your client applied for universal credit  
• dates of all relevant contacts and decisions
• whether and when your client notified the DWP of their hardship, and how and when the DWP responded, including dates
   

We've created this guide to help you successfully use our judicial review pre-action letter templates: Guide to using CPAG's judicial review pre-action letter templates

Once you've finished your letter, please email it to us at: [email protected] before you send it to the lawyers acting for DWP/HMRC/your local authority. We'll try to reply as quickly as possible and will do so within 7 days.