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DWP Operational Guidance on applying AT judgment
We have obtained operational guidance from DWP on how they consider whether AT applies and whether to unstay cases and pay UC.
The FOIA letter clearly states this is interim guidance and subject to change and asks me to point that out- would be helpful if they would themselves publish any updates but there you go.
I think that paragraphs in Appendix A will be useful for advisers in arguing their client’s can get UC based on AT case.
I would make following comments:
1. The approach of not proactively investigating whether someone would be at risk of hardship prior to staying decision making is arguably wrong but at least the letters they send do say if have hardship as a result get in touch (although would help if added that if do this they might be able to unstay and pay).
2. The paragraphs on ability to work and on when hardship will exist contain helpful examples etc.
3. I think they are wrong that AT does not apply to third country national family members of EU citizens- see article 13(2) Withdrawal Agreement etc.
4. There is insufficient focus on fact that AT applies in cases where there is imminent risk of a dignity breach- although that is mentioned at para 18 a lot of the earlier stuff suggests that not the case.
5. They seem to have position that need an EU law right of residence as at 31/12/2020 for AT to apply- arguably so long as had EU law right at some point before then and continued to reside in UK as at 31/12/2020 that will do- all comes down to correct interpretation of article 10 Withdrawal Agreement.
Please see our advice for claimants (which does not yet refer to this guidance) here- https://cpag.org.uk/welfare-rights/resources/test-case/destitute-eu-nationals-pss-can-rely-eu-charter-fundamental-rights and EU Rights and Brexit Hub memo on staying here- https://www.eurightshub.york.ac.uk/blog/memo-the-decision-in-at-v-sswp-and-the-inappropriate-use-of-powers-to-stay-decisions for more information.
I see they are maintaining the (wrong) position that Charter rights cannot apply to non-EU nationals - i.e. to 3rd country national spouses/family members of EU nationals.
Also that AT is authority for the proposition that an ability to work will prohibit a Charter rights argument. I’m far from convinced by that - at least in every single case. Whilst AT does say that, the UT offers no explanation of why this should be the case and it’s there in the decision almost as an aside. So I would argue (and have a case in which I am arguing) that the comment is obiter. My own take is the comment is predicated on the fact the UT was dealing with an EU national, so that work would make the claimant a worker and result in a qualifying right of residence for UC - if earnings themselves were not enough, the availability of UC would then make up the shortfall and avoid destitution.
In my case, my 3rd country national client wants to work and tried work - but had been wrongly advised that work would make her a worker and so eligible for both UC and the childcare costs element. Of course it didn’t, so that by the time she’d paid for the childcare required to allow her to work, she was worse off then when she wasn’t working and reliant solely on s.17 payments.