Right to reside based on self-sufficiency
Current status
The Court of Appeal granted the Secretary of State permission to appeal and the case will be heard over 1.5 days starting on 22 or 23 October.
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.
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:
- 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)
- 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.
- WV was permitted to rely on the benefits paid to his wife:
- not all of them were social assistance (para 40)
- 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.
- Carer’s allowance that WV received was not social assistance (para 54- accepting a concession from SSWP).
- 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.
- 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.
- 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.
- 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.
- Taking those factors into account, Judge Ward determined that this would not be an unreasonable burden.
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).