Legal test cases

In a judgment of 15 May 2023 the Upper Tribunal ruled that an EEA national who was a carer for his disabled wife who was in receipt of income related ESA, in circumstances where the amount of ESA decreased due to his presence in the household (loss of some premiums and taking account of carer's allowance more than offset increase to couple rates), had a right to reside as a self sufficient person. When the couple then claimed universal credit, the additional cost of £347.07 a month which awarding that benefit to the couple rather than just awarding it to his British wife as a single person, along with the cost of similar such claims which would also now fall to be allowed, was not an unreasonable burden on the UK social assistance system and therefore the claimant continued to have a right to reside as a self sufficient person and was therefore entitled to a joint award of universal credit. The Secretary of State appeal to the Court of Appeal was dismissed on 29 November 2024

The Upper Tribunal considered whether VB, a Norwegian national with pre-settled status, had a right to reside for the purposes of claiming Universal Credit because she was i) a self-employed person, ii) a self-sufficient person with comprehensive sickness insurance, and iii) had retained worker status.

Judgment of the Upper Tribunal three judge panel dismissing the Secretary of State’s appeal against the decision of the First-tier Tribunal was given on 12 December 2022. The Secretary of State appealed to the Court of Appeal The case was heard in the Court of Appeal from 8 - 10 March 2023. A further hearing took place on 10 October 2023. The judgment of the Court of Appeal was handed down on 8 November 2023, dismissing the appeal. The Secretary of State applied for permission to appeal to the Supreme Court and this was refused on 7 February 2024, meaning that the Court of Appeal’s judgment is now final. DWP amended guidance on 3 February 2025 indicating they now accept that third country national family members of EU nationals can also benefit from the judgment.

This case concerned entitlement to widowed parent’s allowance (WPA) where the appellant and her partner had undergone a religious ceremony some years prior to his death and considered themselves to be, and held themselves out as being, legally married but were not in fact married under English law. The First-tier Tribunal found that the appellant had no entitlement to WPA as she did not meet the marriage requirement, and permission to appeal to the Upper Tribunal was refused, first by the FtT and then, on renewal, by the UT itself. Following a successful Cart style judicial review of the decision not to allow permission to appeal, the case was remitted to the UT for a decision on the WPA entitlement. The case was heard in the UT before a three judge panel on 13/02/20 and, on 26/05/20, the UT dismissed the appeal.

Current status: The High Court heard the case on 16 June 2021 and handed down judgment in favour of the claimant on 5 July 2021. HMRC appealed to the Court of Appeal and a hearing took place on 25 January 2022. The Court of Appeal dismissed HMRC's appeal and judgment was handed down on 8 February 2022 ([2022] EWCA Civ 120).

CPAG brought judicial review proceedings on behalf of two EU nationals, a severely disabled man and his carer, who were refused universal credit on the basis that their limited leave to remain in the UK under Appendix EU to the immigration rules (‘pre-settled status’) was not a qualifying right of residence for the purposes of means-tested benefits. On 27 April 2020, the High Court dismissed the claim. The Claimants sought permission to appeal and, following the grant of permission by the Court of Appeal, the Court found in favour of the Appellants/Claimants in a judgment handed down on 18 December 2020. The Secretary of State appealed to the Supreme Court. Meanwhile on 15 July 2021, the Court of Justice of the European Union, in a judgment which the parties in the case brought by CPAG accept is binding on the Supreme Court, ruled that it was not unlawfully discriminatory to have such a rule (i.e. that the basis on which the Court of Appeal allowed the appeal was wrong). The Supreme Court gave a final decision allowing the Secretary of State's appeal on 1 December 2021.

On 7 February 2020, the High Court handed down judgment in this case. It was held that the requirement under the Pensions Act 2014, in conjunction with the Bereavement Support Payment Regulations 2017, to be married or in a civil partnership in order to claim higher rate bereavement support payment (BSP) was not compatible with the European Convention on Human Rights. The SSWP did not appeal that judgment. The Bereavement Benefits (Remedial) Order 2022 came into effect on 9th February 2023 and extends eligibility for bereavement support payment and widowed parent's allowance to cohabiting partners with children.

The Upper Tribunal held that when a worker has worked for over 12 months then they do not need to show a genuine chance of being engaged after 6 months of unemployment in order to retain worker status and the associated right to reside.

CPAG has brought a challenge in the Upper Tribunal to HMRC's refusal to backdate payments of the disability element of child tax credit (CTC), following underpayments of benefit prior to April 2016. A decision is currently awaited. 

In August 2018, the Supreme Court handed down its judgment that denying bereavement benefits to unmarried, cohabiting partners with children is incompatible with human rights law. Separately, CPAG is representing a Muslim woman with two young children who was also denied WPA following the sudden death of her partner with whom she had been through an Islamic marriage ceremony and believed herself to be lawfully married.