EU Rights and Brexit Hub issues memo to IMA and Work and Pensions Committee over DWP’s inappropriate use of powers to stay decisions

Memo highlights that EU citizens with pre-settled status are being denied access to benefits even where they have a right to reside or where staying of the decision on their claim is causing hardship

The EU Rights and Brexit Hub has issued a memo to both the Independent Monitoring Authority (IMA) and the Work and Pensions Committee over the DWP's inappropriate use of powers to stay decisions.

In December 2002, the Upper Tribunal ruled – in Secretary of State for Work and Pensions v AT (Aire Centre and IMA intervening) UC [2022] UKUT 330 (AAC) – that, before refusing universal credit on a right to reside ground to a claimant with pre-settled status, the Secretary of State must be satisfied that the refusal would not prevent them living in dignity. With the Court of Appeal's judgment on the Secretary of State's appeal still pending, the Secretary of State has the power in the meantime to stay decision-making on claims affected by the decision, under section 25(2) of the Social Security Act 1998.

However, in its memo, the Hub highlights that the Department is staying decisions inappropriately in two situations –

• claimants who believe they have a qualifying right of residence under the Immigration (European Economic Area) Regulations 2016 (SI.No.1052/2016) should not have decisions on their universal credit entitlement stayed until a determination has been made on their eligibility; and
• guidance states that decision makers should consider whether a decision to stay would result in hardship and, where it would, that decision should not be made.

Setting out a number of case studies by way of example, the Hub points out that the standard universal credit journal entry communicating the decision to stay fails to advise either how the decision to stay can be considered, or how to demonstrate a right of residence in order to satisfy the eligibility conditions for universal credit.

With the Court of Appeal decision likely to be further appealed to the Supreme Court, meaning claimants could be denied access to benefits for many months or even years, the Hub suggests three actions the DWP needs to take –

• where it decides to stay a case due to SSWP v AT, the communication to individuals should be clear and set out exactly why the decision to stay has been made;
• specific decision maker guidance on decisions to stay in SSWP v AT should be provided; and
• it should publish statistics on the number of decisions to stay.

For more information, see Memo: The decision in SSWP v AT and the inappropriate use of powers to stay decisions from eurightshub.york.ac.uk