A10/2024 Revised: The AT Court of Appeal judgment and the EU Charter of Fundamental Rights assessment
Updated 27 November 2024
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Who should read
All Housing Benefit staff
Action
For information
Subject
The AT Court of Appeal judgment and the EU Charter of Fundamental Rights assessment
Revisions
This circular is being reissued as paragraph 13 has been revised to provide clarity. We apologise for any inconvenience caused.
Guidance Manual
The information in this circular does not affect the content of the HB Guidance Manual.
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Crown Copyright 2024
Recipients may freely reproduce this circular.
Introduction
1. This circular clarifies the position for Decision Makers (DMs) following the judgment of the Court of Appeal (“CoA”) handed down on the 8 November 2023 in the case of SSWP v AT [2023] EWCA Civ 1307[footnote 1] (“AT”). The Secretary of State applied for permission to appeal to the Supreme Court, which was refused on 7 February 2024. This means the CoA judgment is now final and needs to be implemented.
2. This judgment relates to European Union (EU) national claimants with pre-settled status (PSS) under the EU Settlement Scheme (EUSS) who have no other legal right to reside for the purpose of the habitual residence test (HRT) when claiming for social assistance such as Universal Credit (UC) or Housing Benefit (HB).
3. This affects new claims, existing cases at the mandatory reconsideration stage, and HRT review cases (both single and joint claimants) which relate to entitlement of EU nationals with PSS from 12 December 2022 onwards.
4. This judgment does not affect:
- claims from non-EU national claimants, including those from Norway, Iceland, Liechtenstein and Switzerland
- claimants who were not in scope of the Withdrawal Agreement at the end of the transition period (31 December 2020) - see paragraph 14
- claims from those with Settled Status, a Certificate of Application, or any other form of leave
- decisions considering entitlement before 12 December 2022
5. Those claims not affected by the judgement should be decided in accordance with existing processes.
Background
6. The case of AT concerns an EU national with PSS who claimed Universal Credit (UC) in 2021. As she had no qualifying right to reside for the purposes of UC, her claim was disallowed as she was not considered to be in Great Britain (GB). AT appealed to the First-Tier Tribunal (FTT) who allowed her appeal on the grounds that without UC, AT and her daughter would not be able to live “in dignified conditions” in accordance with the judgment of CG v the Department for Communities in Northern Ireland C-709/20[footnote 2] (CG).
7. In law, the FTT found that the EU Charter of Fundamental Rights (“the Charter”) applied through the Withdrawal Agreement and that the case of CG meant AT’s individual circumstances should be assessed. The FTT found on AT’s particular facts that it was a breach of her Charter rights not to grant her UC and, accordingly, regulation 9(1), (2) and 3(c)(i) of the Universal Credit Regulations 2013 (the provisions that require the claimant to be in GB) were disapplied on Charter grounds, meaning that the Secretary of State was wrong to disallow the UC claim.
8. In the Upper Tribunal (UT) decision[footnote 3] dated 12 December 2022, the UT dismissed the Secretary of State’s appeal but gave permission to appeal to the CoA. On 8 November 2023, the CoA dismissed the Secretary of State’s appeal against the decision of the UT, finding that the Charter rights continued to apply to EU citizens in scope of the Withdrawal Agreement. The CoA held that, where the case of AT applies, the Secretary of State was required to consider if a refusal of social assistance such as UC or HB would put a person at risk of destitution.
9. On the 7 February 2024 the Supreme Court refused the Secretary of State’s permission to appeal.
Local authority Decision Maker action for HB claims
10. The UT findings in AT are declaratory in law, meaning that they can be applied to new cases from the date of the decision (12 December 2022 onwards) and this date is the relevant determination date.
11. Any cases stayed under s.25(2) of the Social Security Act 1998 should now be processed and an appropriate decision made.
12. Each claim should first and foremost be considered under the usual HRT rules. This means that all new claims for Housing Benefit (HB), for which an HRT is needed, should first proceed with an HRT assessment in the usual way. In either case, if the claimant passes the HRT, the HB claim/existing award continues on this basis.
13. Note: HRT is applicable where claimant(s) have only claimed HB. In any case where claimant(s) are receiving income based Jobseeker’s Allowance, income related Employment Support Allowance, Income Support or Pension Credit, an additional HRT assessment will not be necessary as it can be passported to HB.
14. For claimants who do not meet the HRT, DMs must consider whether they come within the scope of the AT judgment. For those not in scope of the AT judgment, their HB claim should be refused for not passing the HRT.
15. Claimants covered by the AT judgment are EU nationals with PSS who are in scope of the Withdrawal Agreement. EU nationals not in scope of the Withdrawal Agreement at the end of the transition period are those who did not exercise a Treaty right such as being a worker, self-employed person, a jobseeker, self-sufficient person, a student, having a permanent right to reside, being a family member of all of the above, being within the initial three months of arrival in the UK or having a retained or derived right of residence.
16. If the claimant is unable to demonstrate any qualifying right to reside, the DM must consider whether the claimant is able to work and, if not, whether the claimant meets the AT threshold identified in the UT decision and set out below.
17. For any cases, (at any stage) where the DM is unsure of how to proceed, the case (with all evidence) should be escalated to [email protected] for further consideration.
The EU Charter of Fundamental Rights DM assessment
Working Age HB claims
18. In light of the AT CoA judgment, where a claimant is able to work, refusal of HB will not violate their Charter rights as they themselves are able to avoid destitution by working. When determining a claimant’s inability to work, consideration should reasonably be given to factors preventing the claimant from working. Examples of these could be physical or mental health conditions, homelessness, having childcare or other caring responsibilities, being a victim of domestic violence, or having other complex needs which mean the claimant is unable to work at that moment.
19. For claimants assessed as unable to work, a DM must thoroughly assess and determine whether the claimant meets the AT threshold.
20. AT threshold test for this memo means the inability to ‘meet their most basic needs’ at present or in the near future and should be considered in all cases. The threshold is high, and the claimant’s position must amount to extreme material poverty incompatible with human dignity.
21. Areas to be considered for basic needs are:
- food
- personal hygiene
- clothing
- housing
- adequate heating
22. When looking at a claimant’s inability to meet their most basic needs, DMs should consider what alternative financial resources claimants are in receipt of and whether those are sufficient to meet their most basic needs at present or in the near future.
23. See Example 1 (Working Age claim to HB awarded):
Rosana is a Spanish national who separated from her Canadian spouse due to domestic abuse. Rosana came to the UK on 25 July 2019 and was granted Pre-Settled Status (PSS) on 29 October 2020. Since arriving in the UK, she worked between November 2020 to March 2021. The end of her employment was health related (seizures) which was aggravated by the abuse faced from her ex-spouse. The relationship also broke down resulting to separation in March 2021 and her ex-spouse kicking her out of the family home and being placed in a refuge. Consequently, Rosana applied for HB and was considered by the DM to have no qualifying right to reside.
Rosana is then contacted by the DM where she was able to evidence that she is unable to work due to ongoing seizures and explained that she had no savings, or any support in the UK. After careful consideration that DM accepts that Rosana is unable to work and meet her basic needs. The DM also accepts that at the relevant time Rosana had been covered by the Withdrawal Agreement as a worker given her employment history. The DM assesses Rosana as destitute and awards HB.
State Pension age HB claims
24. An assessment of the claimant’s ability to work is not required for State Pension age claimants. To determine whether a claimant is within the scope of the AT judgement, DMs should refer to paragraphs 21 to 23.
25. Note: This section also applies to couple claims where one person is not over State Pension age and the other person is over State Pension age.
26. See Example 2 (State Pension age claim to HB awarded):
Anna is a pension aged Polish national who applied for State Pension Credit (SPC) and HB on the 14 January 2023. Whilst the Decision Maker conducted the HRT the following information was gathered: she arrived in the UK in September 2018. Studied at University from 2018 until she graduated on 03 July 2021. She was granted PSS in 2020. She has declared health conditions. Anna has no dependents or family to derive a right to reside from in the UK.
Prior to her application to SPC she had been sectioned under the Mental Health Act. She is still recovering from psychosis and continues receiving treatment from her Mental Health team. In her claim disclosure, Anna declared to have housing costs. Anna contacted a SPC Decision Maker by telephone to state that she will be destitute if the decision is negative. The SPC DM contacts Anna to assess whether her basic needs can be met. During the call, Anna explains that she is a widower with only £200 in her account and does not have relationship with her children. The SPC DM determines that Anna is at risk of not meeting her basic needs in the immediate future and makes a decision to allow Anna’s SPC claim because at the relevant time she had been covered by the Withdrawal Agreement as a student. As Anna is receiving SPC, the HB DM also allows her claim to HB as the SPC DM’s decision is passported.