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Pre-settled status and access to benefits

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  • USEFUL REFERENCE Pre-settled status and access to benefits


    Back in 2019, the charity Child Poverty Action Group (CPAG) launched a legal challenge against the requirement for EEA nationals with pre-settled status, to have a right to reside under the EEA Regulations in order to claim most benefits.

    This case is refered to as Fratila v SSWP.

    The claimants chosen for this challenge are Ms Fratila and Mr Tanase, Romanian nationals who came to the UK in 2014 and 2019 respectively. Both were granted pre-settled status in 2019. Both claimants applied for universal credit and were refused on the grounds that their pre-settled status was not a sufficient right to reside to enable them to access means-tested benefits.

    CPAG argued that not being entitled to benefits despite having leave to remain in the UK withput any conditions restricting recourse to public funds, is in breach of the EU right not to be discriminated against on the ground of nationality in comparison with UK nationals.

    The case was heard on 18-19 February 2020 with judgment given on 27 April 2020, dismissing the claim and refusing permission to appeal. The High Court held that the discriminatory treatment they had suffered was lawful because it was justified.

    High Court judgment.

    However, the Court of Appeal granted permission to appeal against the High Court decision on 29 May 2020 and the hearing took place on 27-28 October 2020. Judgment was handed down on 18 December 2020, allowing the appeal.

    CPAG argued that EU nationals with a right of residence under domestic law cannot be treated differently to a UK national in relation to access to benefits and the Court found that the fact the UK government had granted a right of residence to Ms Fratila and Mr Tanase means they are entitled to rely on the EU Treaty’s prohibition on discrimination, including in relation to social assistance. A majority of the 3-judge Court found that the rule was discriminatory on the grounds of nationality. The decision meant that people with pre-settled status living in the UK could then rely on that status to meet the Habitual Residence Test (HRT) for means-tested benefits. The Court of Appeal also refused the DWP’s application for permission to appeal.

    Court of Appeal judgment.

    The Supreme Court has granted the DWP permission to appeal. There is another case now pending in the Court of Justice (C-709/20 Department for Communities)which is a referral from a Northern Ireland Appeal Tribunal and raises the same issue as in Fratila. For this reason, the Supreme Court hearing did not go ahead, as its decision has to await the judgment of the Court of Justice on this case.

    As a result of all the above, the case is still ongoing.

    CPAG article about the Fratila case.

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  • #2
    CPAG's advice for affected claimants
    • If you have pre-settled status and failed the habitual residence test, you should apply for a mandatory reconsideration, if you have not already done so.
    • If you already had a mandatory reconsideration refused, you should immediately appeal against the decision to the first-tier tribunal, relying on the Fratila Court of Appeal decision. These appeals may need to be stayed.
    • If you have pre-settled status and have not yet made a claim for benefit, you should make a claim as soon as possible.

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    • #3
      CPAG have also put together this document: Advice for claimants

      ...where they say:
      Claimants with pre-settled status who are now or have been within the last 13 months refused benefit

      This section applies where:
      • a decision refusing (or ending entitlement to) one of the benefits above, because they are said not to have had a sufficient right to reside, has been made on or after 01 January 2021; and
      • at or before the date of that decision the claimant had been granted pre-settled status
      A claimant to whom the above two points applies should now take the following action:
      • If the decision was made within the last 13 months and was about entitlement to housing benefit (where mandatory reconsideration does not apply) or did not state that a right of appeal would only arise once a request for revision had been refused then the claimant should immediately appeal. If the appeal is being made more than one month after the decision then reasons for lateness should be given- these could include that the claimant was unaware they had a case until they or their adviser became aware of this judgment.
      • If the decision refusing benefit has not yet been challenged and was made within the last 13 months (or for tax credits 30 days plus 12 months), they should immediately apply for a “revision” of the decision (i.e. a “mandatory reconsideration”).
        • They can do this over the phone, in writing or, if the benefit is universal credit, by posting a note on their online journal (if they have no online journal as their claim was refused and they have not reclaimed they can make a new claim and then when the new journal is created make an entry on this requesting a mandatory reconsideration of the decision refusing their previous claim.
        • Where the decision being challenged was made over 1 month ago but still within the last 13 months then the mandatory reconsideration note should explain why they could not bring the application earlier: one reason might be that it was only the result in this case which made them aware that they could do so.
        • It is important that if the claimant also has an alternative qualifying right to reside they additionally refer to this in any mandatory reconsideration request.
      • If the claimant has sought a mandatory reconsideration and it has been refused and the claimant has not yet appealed to the First-tier Tribunal then they should immediately appeal against the decision. The ground of appeal can be simply that the decision was wrong as at the time it was made they had pre-settled status which Fratila shows was a sufficient right to reside for them to obtain benefit.

      Note: Once the claimant appeals (or if they have already done so) then the First-tier Tribunal could decide to “stay” its consideration of the case pending the result of the Secretary of State’s appeal to the

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      • #4
        How to request a mandatory reconsideration

        Official webpage: Challenge a decision made by the Department for Work and Pensions (DWP) - GOV.UK

        ...where they say:
        Send your completed form and any relevant evidence to the address at the top of your decision letter. The notes document gives examples of evidence to provide.

        You can also challenge a decision by calling the benefit office, or by writing a letter.
        Direct link to mandatory reconsideration form.

        If you have no joy over the phone, you can still download the form above, fill it in and forward it to them.

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