Memo: Error in DWP guidance on pre-settled status, benefits and the Charter of Fundamental
Charlotte O’Brien and Alice Welsh submitted the following as a memo to the House of Commons Work and Pensions Committee on 10th May 2022 to highlight an error with the DWP guidance. The guidance fails to mention the duty of Universal Credit decision makers to assess whether a refusal of the benefit would risk violating fundamental rights under the EU Charter.
The guidance at issue
(1) In January 2022, the Department for Work and Pensions published a Memo 01-22 updating the Advice for Decision Makers on the impact of parallel cases of the CJEU in C-709/20 CG v the Department for Communities in Northern Ireland [2020] and the UK Supreme Court in Fratila & Anor v Secretary of State for Works and Pensions & Anor [2020] EWCA Civ 174. This memo makes no mention of the duty on the Secretary of State to consider a risk of violating an EEA national’s rights under the EU Charter of Fundamental Rights (The Charter) before refusing an application for Universal Credit, as required by the binding judgment of the CJEU in CG. It is our understanding that this guidance is unlawful and will lead to decision makers failing to undertake this assessment aimed at protecting the most vulnerable EEA nationals (including children and those fleeing domestic abuse) from destitution.
The rules at issue
(2) The UK government laid new regulations after Brexit – The Social Security (Income-related Benefits) (Updating and Amendment) (EU Exit) Regulations 2019 – which came into force in May 2019, to stop pre-settled status from counting as a right to reside when claiming benefits. This effectively requires PSS holders to demonstrate an additional right to reside (typically based on work). In two separate high-profile cases, CG and Fratila, claimants challenged these regulations as discriminating on the basis of nationality, contrary to (then still applicable) EU law.
What do the judgments say?
(3) First in CG, and then repeated by the Supreme Court in Fratila, it was found that those with pre-settled status are not entitled to protection from nationality discrimination in Article 18 TFEU.
(4) However, the CJEU outlined a safety net offered by EU law. People in CG’s situation, having been granted a right of residence, fall within the scope of Union law (Article 21 TFEU, on the right of Union citizens to move and reside within the Union), so are entitled to protection of the Charter of Fundamental Rights of the EU. States are obliged to ensure that EU nationals could live in dignity, as required by Article 1 of the CFR. Furthermore, in line with the duty to respect private and family life (Art 7 CFR), and to consider the best interests of the child (Art 24 CFR), States are also “required to permit children, who are particularly vulnerable, to stay in dignified conditions with the parent or parents responsible for them” [91].
Credit - Court of Justice of the European Union
(5) The CJEU made it clear that an assessment of the risk of a violation of Charter rights must happen before a decision is taken to refuse Universal Credit. The Court states that "the competent national authorities may refuse an application for social assistance, such as Universal Credit, only after ascertaining that that refusal does not expose the citizen concerned and the children for which he or she is responsible to an actual and current risk of violation of their fundamental rights” (emphasis added) [92]. The CJEU makes a specific reference to CG’s personal circumstances, stating that “in such a situation” a Charter rights assessment is required. This suggests that such an assessment must take place on an individual basis, considering the circumstances of the individual applicants.
(6) The Supreme Court in Fratila did not consider the implication of CG in relation to protection under the Charter as it was considered a new argument “which has never previously been raised in these proceedings” [14], and moreover, it was an issue on which fact-finding would be required. The Court noted that the situation in CG was “materially different” from that of the respondents in Fratila, suggesting that a Charter rights assessment will be necessary in individual cases.
What does the guidance say?
(7) The new memo instructs decision makers to lift the stay on cases that were previously stayed pending the Fratila judgment and to inform claimants that “a decision will be made after a review of the case”. This review of pre-transition cases should proceed as follows:
i. If a claimant with pre-settled status has acquired an alternative right to reside since the date of initial claim, UC should be awarded from the date they became entitled, or a closed period supersession should be considered, if appropriate.
ii. Equally, if a claimant previously applied for a revision or supersession of a disallowance decision on an application made before 31.12.2020, on the grounds that the Court of Appeal decision applied to them, these should now also be reviewed.
(8) The guidance does not instruct decision makers to consider a risk of violation of rights under the Charter as part of this review process. The only mention of the Charter in the new memo is in reference to the finding of the Supreme Court in Fratila:
iii. “10. New grounds were raised by the claimants regarding the application of the Charter of Fundamental Rights of the European Union. In the judgment the Lords dismissed this new point, as it raised new issues of fact not previously determined. They further clarified this by distinguishing that the material facts of the case before them and CG were materially different.”
(9) This ignores the judgment from the CJEU and interprets the Supreme Court’s judgment to wrongly to imply that a Charter rights assessment is not required, rather than finding that it should be examined earlier on in cases, and not left until a case is before the Supreme Court.
(10) Importantly the memo gives no guidance to decision makers on when and how to apply the Charter of Fundamental Rights, what rights they should consider and how to conduct an individualised assessment. Decision makers are therefore led to ignore the binding judgment of the CJEU requiring a Charter rights assessment before refusing an application for Universal Credit.
What has the department said?
(11) On 26th January 2022, Child Poverty Action Group (CPAG) wrote to the DWP legal team about the memo and asking for:
a. ADM guidance explaining the CG judgment and how DMs should apply it to cases previously stayed behind Fratila has been prepared separately (please provide a copy if so);
b. Any DMA Leeds guidance, memo or other communications have been prepared which refer to how DMA Leeds should assist DMs to apply CG or apply CG consistently themselves; and
c. If no guidance has been prepared, reasons for not doing so.
(12) In response to this correspondence, the DWP legal team stated that “the Secretary of State does not consider that this is required, either as a result of the judgment in CG or otherwise”.
Impact of unlawful guidance
(13) Firstly, the failure to implement the ruling in CG and to note the requirement for a Charter rights assessment in the guidance is unlawful. The CJEU was clear that the Secretary of State may refuse an application of UC “only after ascertaining” that that refusal would not violate rights under the Charter. Article 89 of the Withdrawal Agreement makes it clear that judgments of the CJEU brought before the end of the transition period shall continue to “have binding force in their entirety on and in the United Kingdom.” The CG judgment should clearly apply to those in a similar situation, whose claims predate the end of the transition period.
(14) Secondly, the impact of failing to conduct a Charter rights assessment will have a disproportionate impact upon the most vulnerable EEA nationals including those in circumstances similar to that of CG. The EEA nationals most likely to be disadvantaged by the absence of guidance are lone parents, children, disabled people and victims of domestic violence and abuse. The EU Rights and Brexit Hub has seen cases where decisions to refuse UC have been made since the issuing of this new memo, leaving claimants in these categories at risk of destitution.
(15) Thirdly, it is important to note that CG has continuing relevance for new cases, including post-transition cases. EEA nationals within the scope of the Withdrawal Agreement are entitled to continuing protection from the Charter. Article 2(a) WA specifically includes the Charter in the adopted definition of “Union law.”
(16) In turn, Article 4(3) requires “provisions of this Agreement referring to Union law or to concepts or provisions thereof” to be “interpreted and applied in accordance with the methods and general principles of Union law”. And Article 4(4) requires those same Agreement provisions to be implemented and applied “in conformity with the relevant case law of the Court of Justice of the European Union handed down before the end of the transition period”.
(17) These provisions are given direct effect in UK law by virtue of s.7A of the European Union (Withdrawal) Act 2018, (as amended by s.5 of the European Union (Withdrawal Agreement) Act 2020), which states:
(2) The rights, powers, liabilities, obligations, restrictions, remedies and procedures [created by or arising under the Withdrawal Agreement] are to be—
(a) recognised and available in domestic law, and
(b) enforced, allowed and followed accordingly.
(18) People within the scope of the Withdrawal Agreement – as laid down in Article 10, which also refers to “Union law” are thus entitled to the protections therein, interpreted in conformity with Union law, and specifically with the Charter of Fundamental Rights. As the Withdrawal Agreement is directly effective in the UK, rights under the Charter should continue to be considered whenever the UK is implementing aspects of the Withdrawal Agreement, including decisions as to the social security rights of those with pre-settled status.
(19) This interpretation is supported by the EU Commission, (which states at EU Commission Q&A)
“It is also mandatory for the purposes of interpreting the Agreement to use the methods and general principles of interpretation applicable within the EU. This covers, for instance, the obligation to interpret the concepts or provisions of Union law referred to in the Withdrawal Agreement in a manner consistent with the Charter of Fundamental Rights”.
How should the guidance be changed?
(20) The guidance on applications from people with pre-settled status should make clear the duty of decision makers to conduct an assessment of whether a refusal of the benefit at issue would jeopardise a claimant’s fundamental rights under the Charter of Fundamental Rights of the EU, and offer details on how to conduct such an assessment.
Many thanks to Martin Williams and Luke Piper for their input on this memo