Social Security Case Law - Spring 2024

Headnote

Universal Credit and claimants with pre settled status.  When deciding whether to refuse Universal Credit for claimants with pre settled status, the Department of Work and Pensions must carry out individualised assessments as to whether the refusal would breach the claimant’s right to live in dignity.

Background

The Applicant (AT) is a Romanian national who came to the UK in August 2016 at which time she lived with her then partner, V, also a Romanian national. The Applicant obtained employment in October 2016.  In February 2018 their daughter, D, was born in the UK and she has Romanian citizenship.  In June 2018, AT and D returned with V to Romania for what was said to be a holiday. When they arrived V cut up AT’s passport and told her that she had to remain in Romania with D whilst he returned to the UK. AT however obtained new travel documents. In October 2020, V returned to Romania and brought AT and D back to the UK with him. After their return to the UK, V prevented AT from working by refusing to pay for childcare and he destroyed the passports of both AT and D. V made threats to kill AT if she returned to Romania. He held her captive and subjected her to emotional and physical abuse.

On 6 November 2020, AT applied for Pre-Settled Status (“PSS“). She was granted PSS on 14 December 2020 under the EU Settlement Scheme pursuant to Appendix EU of the Immigration Rules – a limited leave to remain.  Both the application and grant occurred during the transition period when EU law applied under the Withdrawal Agreement to its fullest extent.

In January 2021, following expiry of the transition period, there was a domestic incident at the home AT shared with V as a result of which police were called. V was arrested, though not ultimately charged. AT and D were temporarily placed in a hotel facilitated by the police and then moved to a refuge run by a charity. At this stage, AT’s total resources amounted to £200 in a bank account into which her child benefit had been paid, a £25 Tesco voucher, and £15 gifted to her by a fellow resident in the refuge. She continued to receive child benefit at the rate of £84.20 paid every 4 weeks which was insufficient to cover her basic needs and those of her child.

The Applicant applied for Universal Credit but was refused on the basis that she was unable to demonstrate a qualifying entitlement.  The Applicant was treated as though she was not ‘in Great Britain’ because she only had limited leave to remain, granted by Appendix EU to the Immigration Rules.

Relevant Legislation

Welfare Reform Act 2012 – claimants are entitled to UC if they meet:

(a) the “basic conditions” and

(b) the relevant “financial conditions“.

Section 4(1)(c) the “basic conditions” include a condition that the claimant must be “in Great Britain“.

Section 4(5) provides that regulations may be made in order to “specify circumstances in which a person is to be treated as being or not being in Great Britain“.

Universal Credit Regulations 2013 – Regulation 9 provides:

9. Persons treated as not being in Great Britain

(1) For the purposes of determining whether a person meets the basic condition to be in Great Britain, except where a person falls within paragraph (4), a person is to be treated as not being in Great Britain if the person is not habitually resident in the United Kingdom …

(2) A person must not be treated as habitually resident in the United Kingdom … unless the person has a right to reside in one of those places.

(3) For the purposes of paragraph (2), a right to reside does not include a right which exists by virtue of, or in accordance with—

(c) a person having been granted limited leave to enter, or remain in, the United Kingdom under the Immigration Act 1971 by virtue of—

(i) Appendix EU to the immigration rules made under section 3(2) of that Act;…”

The Applicant appealed the decision not to award her Universal Credit.  The FfT applied the findings of the Law Centre NI case – Case C-709/20 CG v Department of Communities for Northern Ireland.  In CG it was held that the refusal of Universal Credit must not infringe on an individual’s right to human dignity under the EU Charter of Fundamental Rights.  In the Applicant’s case, the FfT decided that if there was no award of Universal Credit, the Applicant and D would not be able to live in dignified conditions.   The Judge stated that it would not be unfair to describe the position of AT as having been subject to inhuman or degrading treatment within the meaning of Article 3 ECHR, with the result that AT’s continuing right to reside in the UK had been violated by the refusal to provide support.  The Judge considered himself bound by Section 5(5) of the European Union (Withdrawal Act 2018) and disapplied regulation 9(3)(c)(i) of the Universal Credit Regulations 2013.  AT’s appeal was allowed and the Judge set aside the Secretary of State’s decision, and found that AT was entitled to Universal Credit.

The Secretary of State appealed to the Upper Tribunal on the basis that the FfT had erred by regarding CG applicable to those with Pre Settled Status after the end of the transition period in the Withdrawal Agreement (31 December 2020).  The Secretary of State further submitted that CG did not require an individual assessment of claimants as there were other sources of state support to which they were in principle entitled, such as the Children Act 1989 – Section 17 which would provide sufficient protection against breach of rights.

The Upper Tribunal found that the Withdrawal Agreement incorporated the Charter of Fundamental Rights, stating:

‘Article 4(3) of the [Withdrawal Agreement] provides that provisions of the [Withdrawal Agreement] “referring to Union law or to concepts or provisions thereof” are to be “interpreted and applied in accordance with the methods and general principles of Union law” and the definition of “Union law” in Article 2 includes the Charter. So, the “methods” in accordance with which the provisions of the WA are to be interpreted and applied include those of the Charter.”

The Upper Tribunal then applied the reasoning in CG and found (1) that AT had exercised her rights under the Treaty on the Functioning of the European Union – Article 21 (right to move and reside freely) to move to the UK before the end of the transition period when EU law applied, and that AT was granted Pre Settled Status under national provisions.  Article 13 of the Withdrawal Agreement (residence rights), modified Article 21 of the Treaty on the Functioning of the European Union to the right to reside freely (removing the right to move).  AT exercised her right to reside freely as she moved before the end of the transition period.  The Withdrawal Agreement therefore meant that she could rely on Article 21 rights to continue to reside in the UK.  (2) Re individual assessment. The Upper Tribunal found that Section 17 support is varied and this would not meet the requirement of an individual assessment.  The Upper Tribunal found that alternative support is relevant only if an individual actually and currently benefits from the support.  The Upper Tribunal found that the decision in CG imposes an obligation on the Department of Work and Pensions to carry out an individual assessment of whether the refusal of Universal Credit to claimants would infringe the right to dignity under Article 1 of the Charter of Fundamental Rights.

Legal Issue

The Secretary of State appealed the decision of the Upper Tribunal on the following grounds:

1. To what extent the Charter applies to any rights set out in the Withdrawal Agreement which have become part of domestic law and which AT can invoke to obtain support
2. Grounds 2 and 3 concern aspects of the duty to provide protection. Whether “in principle” suffices as compliance with fundamental rights, including Article 1 of the Charter, for the UK to set up a default framework of support that, taken in the round, is capable of being applied for a person with PSS; the role played in the overall scheme by section 17 Children Act 1989 (“CA 1989“); whether any assessment of need must be “individualised” and as to the meaning of this term; the point in time at which the duty to provide support arises; whether the duty to protect “dignity” is the same as a duty to protect the “vulnerable“; and, whether there is any difference in law between Articles 1 on “dignity” and Article 4, on degrading and inhuman treatment, of the Charter.
3. Whether the threshold for the triggering of the duty of protection in a case under Article 1 of the Charter is the same as that in Article 4 and does AT met this threshold.

Decision

The Court of Appeal dismisses the Secretary of State’s appeal on all grounds.  In February 2024 the Supreme Court refused the Department of Work and Pensions permission to appeal against the Court of Appeal’s judgment.

1.The Court of Appeal rejected the Secretary of State’s submission that the Charter of Fundamental Rights does not apply following the UK’s departure from the EU. The Court of Appeal stated at paragraph 113:

‘The Charter applies to Article 13 of the Agreement and to Article 21 TFEU which is made applicable by cross-reference. Those rights are directly effective. Both must be construed by reference to the Charter. Both have become part of domestic law through section 7A EU(W)A 2018 and this includes their application in conjunction with the Charter. The relevant provision of the Charter is Article 1 as it applies to AT (in conjunction with Articles 7 and 24 as it applies to her and her child). Article 1 is not legally coextensive with Article 4 (and Article 3 ECHR), albeit that in some and possibly many cases there will be a significant evidential overlap. The benchmark determining whether there is a breach of Article 1 (alone and/or in conjunction with Articles 7 and 24) is the approach taken by the CJEU in CG.’

2. Grounds 2 and 3 – the method of individualised assessment/implementation of framework of support. The Court of Appeal rejected the Secretary of State’s submissions, finding at paragraph 123:

‘There are a number of answers to the SSWP’s “in principle” or “statutory framework” submission.  First, it is inconsistent with the judgment of the CJEU in CG. Secondly, it is inconsistent with Article 4(1) of the Withdrawal Agreement. Thirdly, it is inconsistent with principles governing how fundamental rights are required to be protected. Fourthly, the system as presented by the SSWP does not seem even in principle to be capable of protecting a person such as AT. 

In considering the role played in the overall scheme by Section 17 of the Children Act 1989, the Court of Appeal found that Section 17 support was varied and complex, and that decisions under Section 17 can only be challenged by judicial review.  The Court of Appeal found at paragraph 143:

‘The SSWP has not adduced evidence to refute or address these wide ranging criticisms of the section 17 system and nor has it been argued that the observations in the 2015 Price and Spencer Report are incorrect or no longer hold true in 2023. Instead, the SSWP says, in effect, that all of this is irrelevant. What matters is that the section 17 system could in theory be more fulsomely applied and this is enough to defeat a claim based upon fundamental rights. There is though no explanation from the SSWP as to how that idealised position could or would come about. In my judgment the FtT was correct in its finding that section 17 was not an answer and the Upper Tribunal was correct to uphold the FtT.’

In considering whether any assessment of need must be “individualised” the Court of Appeal found that the Upper Tribunal was correct in stating that the CJEU in CG made individualised assessments mandatory.  The Court of Appeal states at paragraph 150:

‘I have no reason to doubt the conclusion of the FfT, upheld by the Upper Tribunal, that the decision taken by the SSWP in this case was insufficiently individualised.  Once AT’s application for Universal Credit was refused the SSWP erred in failing in any meaningful sense, as the FfT Judge found, to go on and address AT’s broader legal right to support.’

In considering when the duty to provide support in Article 1 of the Charter, the Court of Appeal found that it is engaged by risk.  The Court of Appeal states at paragraph 154:

The duty arises when it can be predicted that the applicant for relief is at risk of having to exercise their right of residence in an undignified manner.  This makes the duty prophylactic in the sense that it is designed to prevent the applicant falling into a position of indignity: it does not only arise once that personal predicament has materialised and, it also follows, the risk is not obviated by saying to the applicant ‘go to court.’

In considering whether the duty to protect “dignity” is the same as a duty to protect the “vulnerable“, the Court of Appeal stated at paragraph 159:

‘It is no doubt true that most of those within the Article 1 class will be vulnerable in some way, but vulnerability is not the judicial lynchpin of the Article 1 regime even if it will be a common feature of such cases.  There is no basis upon which the concept of ‘dignity’, which is foundational and deeply embedded in international law…….and which sits at the apex of the Charter, can, by a forensic side wind, be said to have been rewritten by the CJEU to mean vulnerability.  I agree with the Upper Tribunal that when the CJEU was describing in its judgment why CG and her child were within the scope of Article 1 the fact that they were considered vulnerable was simply one relevant factual consideration amongst others.  In short: vulnerability may be a relevant factor under Article 1, but it is neither a gateway condition nor its defining characteristic.’

1.The threshold for breach of Article 1 of the Charter.

The Secretary of State submitted that there is a high threshold that must be met in order for a breach to be found and that the threshold had not been met in AT’s case.  However, the Court of Appeal noted that the FFt Judge had found that Article 4 of the Charter (inhuman and degrading treatment) had been breached and that the Upper Tribunal agreed with this.  The Court of Appeal therefore dismissed this point, stating that the Secretary of State’s submission were not arguable and that there was no error of approach in the tribunals’ approach.