AT case and third country nationals - anyone seen any DWP argument on this?

Unrelated to Mr Jim’s recent posts, I’ve been thinking about AT cases and have some questions:

1. For claimants where it has been accepted that AT applies and UC is in payment, what happens if they do a little work, but at an earnings level where they would still be eligible for & in need of UC?
AT in the CoA said “Logic dictates that many if not most of those with PSS will be in work and not therefore in need of support”.
If they move in to part-time or low-paid work, will UC stop immediately, or should there be a further ‘individualised assessment’ of whether, without UC topping up their wages, they would be unable to meet their basic needs? The DMG and ADM say that where a claimant is able to work, refusal of UC will not violate their Charter rights – but what if the work is marginal in income.

2. Of the recent county court homelessness cases (mentioned in this thread - https://www.rightsnet.org.uk/forums/viewthread/20081/); in C v Oldham, the appellant was a Third Country National who was a family member of an EU national at the end of the transition period & when she was granted PSS; by the date of the homelessness decision, was no longer a family member. The Judge found that Article 17(2) of the Withdrawal Agreement protects the position of a once-dependent family member; someone who was a family member at the relevant time should continue to be treated as a dependent (paras. 48 & 50).
Does this have the effect of adding to existing caselaw around the personal scope of the Withdrawal Act and open an alternative route of entitlement to UC (other than AT), for destitute Third Country Nationals with only PSS?
Should we be arguing this alongside AT, given that DWP are not accepting that AT applies to Third Country Nationals?

bristol_1 - 01 July 2024 02:48 PM

Unrelated to Mr Jim’s recent posts, I’ve been thinking about AT cases and have some questions:

1. For claimants where it has been accepted that AT applies and UC is in payment, what happens if they do a little work, but at an earnings level where they would still be eligible for & in need of UC?
AT in the CoA said “Logic dictates that many if not most of those with PSS will be in work and not therefore in need of support”.
If they move in to part-time or low-paid work, will UC stop immediately, or should there be a further ‘individualised assessment’ of whether, without UC topping up their wages, they would be unable to meet their basic needs? The DMG and ADM say that where a claimant is able to work, refusal of UC will not violate their Charter rights – but what if the work is marginal in income.

2. Of the recent county court homelessness cases (mentioned in this thread - https://www.rightsnet.org.uk/forums/viewthread/20081/); in C v Oldham, the appellant was a Third Country National who was a family member of an EU national at the end of the transition period & when she was granted PSS; by the date of the homelessness decision, was no longer a family member. The Judge found that Article 17(2) of the Withdrawal Agreement protects the position of a once-dependent family member; someone who was a family member at the relevant time should continue to be treated as a dependent (paras. 48 & 50).
Does this have the effect of adding to existing caselaw around the personal scope of the Withdrawal Act and open an alternative route of entitlement to UC (other than AT), for destitute Third Country Nationals with only PSS?
Should we be arguing this alongside AT, given that DWP are not accepting that AT applies to Third Country Nationals?

1. Regarding AT claimants who work then, I would say:

a) If they are an EU national then this will make them a worker which gives a right to reside anyway- they don’t need to rely on AT anymore. Remember very small amounts of work are sufficient in many cases to acquire worker status (Genc, Ninni Orasche, Barry v LB Southwark etc).

b) If they are not an EU national then things are harder. Their work will not give them a residence right as a worker. I think that if such a person was only able to work a small number of hours (perhaps due to childcare or health problems) and that still leaves them destitute then it can be argued what was said about work in AT was not meant to rule out that sort of case from qualifying. The UT in AT did not have such a case in mind (or before it) when it was considering this issue. For EU nationals then the problem does not arise as small amounts of work make a person a worker and trigger UC access. The logic for why being able to work stops State having a dignity protection role is expressed in the DWP guidance- the person can prevent indignity via obtaining funds through work (leave aside this rather ignores the fact that jobs don’t exist because jobseekers want them as the logic allows us to pretend this is a magic economy). But even that magical reasoning cannot apply to a TCN national who is working as much as they are able to and are still destitute.

2. Regarding article 17(2)- I am not sure this adds to"scope” of WA - that is just governed by article 10. Rather it says that a TCN who was at one stage a dependent family member and no longer is still actually has to be treated as having an article 13 right of residence. So it is another way of satisfying the right to reside test proper. Yes it can be argued in appropriate cases- logically it comes before any AT argument.

Reading the ADM memo it’s pretty explicit that it only applies to EU nationals; not even EEA nationals!

DWP are not appealing to the UT in my client’s case

Rather depressing that the DWP in your case found themselves defending a decision which claimant alleged breached fundamental rights and their submission was simply “we have nothing to say in defence of this decision”.

The AT point is correct but also seems clear that claimant could in fact potentially have had a right of residence pursuant to article 24(1)(h) and 25(1)(b) of the Withdrawal Agreement which do actually appear to extend the Baumbast / Teixeira rule to the primary carer’s of the children in education of the formerly self employed.

Article 24

Rights of workers

1.Subject to the limitations set out in Article 45(3) and (4) TFEU, workers in the host State and frontier workers in the State or States of work shall enjoy the rights guaranteed by Article 45 TFEU and the rights granted by Regulation (EU) No 492/2011 of the European Parliament and of the Council(1). These rights include:
[...]

(h)the right for their children to be admitted to the general educational, apprenticeship and vocational training courses under the same conditions as the nationals of the host State or the State of work, if such children are residing in the territory where the worker works.

Article 25

Rights of self-employed persons

1.Subject to the limitations set out in Articles 51 and 52 TFEU, self-employed persons in the host State and self-employed frontier workers in the State or States of work shall enjoy the rights guaranteed by Articles 49 and 55 TFEU. These rights include:

[...]

(b)the rights as set out in points (c) to (h) of Article 24(1) of this Agreement.