Social Security Case Law - Spring 2025

Headnote

The Upper Tribunal ruled that the claimant was wrongly denied Universal Credit because the rules unfairly discriminated against domestic abuse victims with pre-settled status under the EU Settlement Scheme.

Background

The claimant was a non-EU/EEA national who had pre-settled status under the EU settlement scheme. However, they separated from their partner due to domestic abuse and applied for Universal Credit in August 2022.

However, DWP determined that they did not have the right to reside for the purposes of Universal Credit and disallowed the claim.

They noted that the UK has special rules to help domestic abuse victims access benefits, but these only applied to people with a specific immigration status under Appendix FM (used for family members of British citizens).However, as the claimant had been granted leave to remain in the UK by virtue of Appendix EU she fell outside of the regulations when it came to making a claim for Universal Credit.

The claimant submitted an appeal to the First-tier Tribunal (FTT) arguing that the decision was unfair and discriminatory stating victims of abuse need support regardless of whether they are a British citizen or not. The decision was upheld at the FTT and the claimant submitted an appeal to the Upper Tribunal.

Legal Issue

Did the rules under Regulation 9(3)(c)(i) of the 2013 Regulations unlawfully discriminate against the claimant by denying her Universal Credit claim because of her immigration status, while allowing other domestic abuse victims (with a different immigration status) to claim it?

Decision

The Upper Tribunal ruled in the claimant’s favour and determined that the Government’s rules were unfair and discriminatory.

Judge Wright accepted the concession from the Secretary of State that the claimant had been discriminated against because she was unable to benefit from the Destitution Domestic Violence Concession (DDVC) and that she should have been able to make a successful Universal Credit claim like those who had joined their partners under Appendix FM to the Immigration Rules. Judge Wright also highlighted the Secretary’s positions on the discrimination claim which agreed that Regulation 9(3)(c)(i) should have been disapplied:

‘… the refusal of universal credit was unlawfully discriminatory, contrary to Article 14 ECHR, on the grounds that the matter fell within the ambit of Article 1 Protocol 1; [the appellant] had a relevant status as a person with Appendix EU leave who had suffered domestic abuse; that she was in an analogous situation to persons with Appendix FM leave who had suffered domestic violence (who would have benefited from the DDVC and been eligible for universal credit accordingly); and that there was no justification for treating [the appellant] differently.’

Judge Wright allows the appeal and replaces the decision under appeal with a decision that the claimant is entitled to an award of Universal Credit on the claim she made on the 16^th August 2022.

Relevant Legislation

• Universal Credit Regulations 2013 (Regulation 9(3)(c)(i))
• Welfare Reform Act 2012 (Sections 4(1)(c) and 4(5)(a))
• Tribunals, Courts and Enforcement Act 2007
• Social Security Act 1998
• European Convention on Human Rights (ECHR) (Article 14 – Protection against discrimination)
• Domestic Abuse Act 2021
• Immigration Rules – Appendix FM (Family Members) and Appendix EU (EU Settlement Scheme

Relevant Case Law

• Secretary of State for Work and Pensions v AT [2023] EWCA Civ 1307
• R v Secretary of State for Social Security ex parte Sarwar and Getachew [1997] CMLR 648
• RR v Secretary of State for Work and Pensions [2019] UKSC 52; [2019] 1 WLR 6430
• AT and CG v Department of Communities [2021] 1 WLR 5919
• Fertré v Vale of White Horse District Council [2024] EWHC 1754 (KB)