Right to reside based on self-sufficiency

• Current status
• Overview
• Background facts
• Upper Tribunal judgment
• What this means for claimants

Current status

The Court of Appeal dismissed the SSWP appeal against the Upper Tribunal decision on 29 November 2024. The Court of Appeal also refused the SSWP permission to appeal to the Supreme Court and the SSWP did not make a further application for permission to appeal to the Supreme Court so the case has now concluded. 

Overview

CPAG represented the claimant, WV, as he responded to an appeal by the Secretary of State for Work and Pensions (“SSWP”) to the Upper Tribunal. The FtT had, on 7 January 2021, allowed WV’s appeal against the decision of 13 August 2020 in which the SSWP which had refused to make an award of universal credit (“UC”) to WV and his British wife on the ground that WV, a Belgian citizen, did not have a right to reside. The FtT had held that WV, who had “pre settled status” was entitled to UC following the Court of Appeal’s decision in Fratila and Tanase v SSWP [2020] EWCA Civ 1741. The FtT decision was then shown to be wrong given that Fratila was reversed by the Supreme Court.

The Secretary of State for Work and Pensions (SSWP) sought and was granted permission to appeal to the Upper Tribunal. CPAG was instructed by WV and conceded that the reasons given by the FtT for allowing the appeal were wrong. It was instead submitted that WV had a right to reside because he was a self-sufficient person, as set out in art 7(1)(b) of Directive 2004/38. The Upper Tribunal decided that WV had been self sufficient when receiving carer’s allowance (which was not social assistance) and in reliance on his British wife’s benefit income (the elements of which that were social assistance not having increased due to his presence in the household). Given that, when the claim to UC was made an individualised assessment of the burden to the social assistance system that allowing the claim would constitute needed to be conducted. In conducting that assessment the Upper Tribunal ruled that there would not be an unreasonable burden and thus WV continued to have a right to reside as a self-sufficient person.

The SSWP's subsequent appeal against the Upper Tribunal decision was dismissed by the Court of Appeal on 29 November 2024.

Background facts

WV moved to the UK from Belgium on 17 May 2017. He married his British wife on 07 June 2017. His wife was severely disabled and received income related employment and support allowance (“ESA”) with the support component, housing benefit, the enhanced rates of both the mobility and the daily living components of personal independence payment, child tax credit and child benefit. WV became her carer and claimed carer’s allowance from 15 September 2017. From the date that he moved in with his wife, her ESA award was amended to reflect that she now had a partner. The standard allowance and the enhanced disability premium were increased to the couple’s rates, and a carer premium was added to the award. However, WV’s wife lost the severe disability premium, as WV was claiming carer’s allowance for her and was reduced by the amount of his carer’s allowance award. Overall, that meant that the amount of ESA which WV’s wife received decreased when WV joined her household.

The couple moved to a new property in July 2020. As they had moved to a new local authority area, they needed to make a claim for UC, which they did on 28 July 2020. On 13 August 2020, the SSWP refused to make an award to WV and his wife as a couple because WV had pre-settled status, which did not give him a right to reside for the purpose of claiming means-tested benefits and did not have another right to reside. Separately, his wife was awarded UC as a single person (award included only the single person standard allowance and did not include a carer premium). WV’s carer’s allowance was treated as unearned income and deducted from the maximum UC entitlement. WV appealed against the refusal to make an award to him and his wife as a couple.

WV was granted settled status 23 months later so the case concerned a closed period.

Upper Tribunal judgment

Read the Upper Tribunal's judgment

Upper Tribunal Judge Ward decided that:

1. WV did not need to demonstrate that he had sufficient resources for his wife and her child in addition to sufficient resources for himself. His wife was a British citizen who did not accompany or join WV in his move to the UK and by article 3(1) that meant the Directive does not apply to her. WV therefore needed to show only that he had sufficient resources for himself. (para 44)
2. The resources available to WV before the claim for UC were made up of his carer’s allowance and a proportion of the welfare benefits paid to his wife, as the couple should be regarded as having a pooled household income. It was not possible to state that these resources were not sufficient, because this was the amount that the government had decided that a couple in these circumstances needed to live on and thus met the minimum threshold in article 8(4) for sufficiency of resources. Provided WV was permitted to rely on his wife’s social assistance benefits and her social security payments and provided also that carer’s allowance was not itself social assistance, WV therefore had sufficient resources until the point that the couple moved to a new local authority area and had to claim UC.
3. WV was permitted to rely on the benefits paid to his wife: 
   1. not all of them were social assistance (para 40)
   2. crucially, those that were, were paid to his wife because she was a British citizen and the scheme of the Directive was that this could not constitute a burden on its social assistance scheme with which the Direcive was concerned (para 41). On the facts of this case, the social assistance she received did not increase due to WV’s presence.
4. Carer’s allowance that WV received was not social assistance (para 54- accepting a concession from SSWP).
5. Therefore, when WV’s circumstances changed such that additional social assistance would be paid due to his presence in the UK then, following the judgment in C-140/12 Pensionsversicherungsanstalt v Brey, an individualised assessment was required in order to determine whether the granting of a benefit to WV would place an unreasonable burden on the state’s social assistance system. 
6. In carrying out this assessment, the SSWP should compare the amount that the household were actually receiving (i.e. in this case, UC at a single person rate, reduced to take account of WV’s carer’s allowance), with the additional burden if the partner is taken as entitled to social assistance. In this case, the additional burden was c£347 per month. 
7. As WV was entitled to apply for settled status 23 months after the UC claim, the additional burden was also time limited, as he would be entitled to social assistance from this point. This was also relevant to assessing whether the additional burden was unreasonable.
8. In assessing whether the total burden on the social assistance system likely to be caused would be an unreasonable one, the cohort of people affected will be a narrow group, defined as follows:
   • EU nationals
   • Who are partners of UK nationals who are in receipt of social assistance
   • Who are eligible for EU settled status
   • Who do not have any other right to reside and
   • In consequence of whose presence in the household, the amount of social assistance paid out remained the same or decreased.
9. Taking those factors into account, Judge Ward determined that this would not be an unreasonable burden. 

Court of Appeal Judgment

Read the Court of Appeal's judgment

The Court of Appeal dismissed the SSWP appeal against the Upper Tribunal decision and has refused permission to appeal to the Supreme Court. The Court of Appeal held:

1. That Ground 1 of the SSWP's appeal (that the Upper Tribunal erred in law in taking into account resources from social assistance when assessing self sufficiency) failed. The Court reasoned that "that the critical part of the Judge’s reasoning was that, on the unusual facts of this case, there would be no increase in the burden on the UK social assistance system as a result of the First Respondent joining the Second Respondent’s household.  The Judge was (in my view correctly) applying a causal link test, in other words that there has to be a causal link between the exercise of free movement rights by an EU national and the imposition of a burden on the social assistance system of the host State." (para 69) and that in this case "there was no increase, but rather a decrease, in the burden on the UK’s social assistance system by reason of the fact that the Respondent had exercised his free movement rights.  It is that fundamental feature of this case which both makes it unusual and also means that the UT did not fall into error as suggested under Ground 1 in this appeal."
2. Ground 2 (that the Upper Tribunal had erred in various ways in assessing whether the amount of income the couple had was enough to make WV self sufficient even if it was permissible to take account of social assistance his British wife received) was also dismissed. Firstly, the Upper Tribunal had not erred in minsinterpreting article 8(4) of Directive 2004/38 as setting a ceiling amount which if the claimant had they would have to be regarded as self sufficient. Secondly, the Upper Tribunal had not erred by assessing WV had sufficient resources by including within those amounts which were calculated by reference to his wife. Thirdly, the Upper Tribunal was correct to hold that WV's resources did not need to be sufficient to provide for his wife's needs as she was a British citizen.
3. Ground 3 which challenged the Upper Tribunal's assessment of the burden that WV and other similar cases would place on the social assistance system also failed. That was primarily because it was an impermissible challege to the facts found by the Upper Tribunal. The issue of law the ground raised (that the Upper Tribunal had been wrong to measure the burden only up to the point WV and others like him would obtain settled status) failed because "once [WV] attained EU settled status, it could no longer be said that there was a burden being imposed on the UK social assistance system in any relevant sense.  From the point in time when the First Respondent attained settled status, his entitlement to social assistance would be derived from his own rights in this country rather than being a burden on the social assistance system of the UK as a result of his exercise of free movement rights."

CPAG represented Isla Jarvis-Wingate in the proceedings before the Court of Appeal and instructed Tom Royston and Alexa Thompson of Garden Court North.

What this means for claimants

The judgment will be relevant where a UK national has been receiving legacy benefits and has an EEA national partner and the couple then need to claim UC. In most cases, the effect of the EEA partner on the legacy benefit award will have been to increase the amount of social assistance received and in those cases the judgment will not assist. However, in cases such as that of WV, where additional legacy benefits were not paid as a result of the presence of the EEA national partner then on transitioning to UC, a self sufficiency right to reside can be asserted to obtain a couple award of UC.

Additionally, an EEA national who resided with a partner in receipt of legacy benefits where their presence did not cause an increase in the total amount paid, will be able to use that period towards accruing 5 years residence to acquire permanent residence (alongside for example periods when they were a worker or retained that status).

The DWP published guidance on how its Decision Makers should deal with cases in ADM Memo 04/24. That guidance instructs Decision Makers not to stay decisions on similar cases but instead to decide them as if WV had not been decided in favour of the claimant (allowing an award to the UK citizen as a single person to be made). The guidance does not make the point that a case would only be a WV lookalike if the presence of the EEA national did not cause the social assistance of their partner to increase (and so seems to have a wider view of the scope of WV than is warranted from the terms of the judgment). 

Following the exhaustion of SSWP's appeal rights in January 2025, DWP will need to update their guidance for decision-makers.