Any advice on HRT appeals welcome

We currently have a tribunal submission for a client for not passing HRT for UC purposes and are relying on SSWP V AT. ( Dual Brazilian/ Portuguese nationality- Pre- Settled Status) 

He has been in the UK for ten years but not as a qualifying person as he had some years in which he had low or no earnings and no other qualifying grounds.
He has a health condition and states he left his job due to illness, but DWP reply states they have confirmed he was dismissed for another reasons and also the first fit note was not issued for a few months after his job ended so appears no ground for Retained Worker Status on health grounds.

DWP bundle reply states he does not meet threshold for Hardship under SSWP V AT on the grounds that he has accommodation, access to meals as he has help from friends, heating and washing facilities and savings of £700. 

Any advice? Do you think tribunal would accept he meets threshold of hardship under EU Charter of Fundamental Rights? Would an argument be that without Universal Credit he would not have accommodation and heating and washing facilities as he could not pay rent so is likely to lose tenancy, also £700 savings is limited funds that it would be reasonable to state that since he declared this in October 2023 he no- longer has.

The mere fact that he was dismissed for reasons supposedly unrelated to his health of itself does not necessarily lead to the conclusion that he was not temporarily unable to work because of illness

In HK v Secretary of State for Work and Pensions [2017] UKUT 421 (AAC), Judge Jacobs held at [4]

Regulation 6(2)(a) provides that a person ‘shall not cease to be treated as a worker … if he is temporarily unable to work as the result of an illness’. As I said in CIS/4304/2007:

35. The second question is: by what test or standard is the claimant’s ability to work to be determined? Regulation 6(2)(a) implements Article 7(3)(a) of the Directive and must be interpreted and applied accordingly. Inability to work is a concept used in EC legislation and, in order to ensure uniformity in that legislation between Member States, it must be interpreted in the same way throughout the EU. It cannot, therefore, depend upon the particular domestic legislation governing incapacity benefits. The language of the legislation has to be interpreted and applied as it stands. The context provides some guidance. It ensures continuity of worker status for someone who would otherwise be employed or looking for work. That employment or search for employment provides the touchstone against which the claimant’s disabilities must be judged. The question is: can she fairly be described as unable to do the work she was doing or the sort of work that she was seeking?

In other words, the claimant’s ability to work has to be decided as a purely factual matter without regard to the particular tests applied by domestic legislation, in this case the employment and support allowance legislation….

And at [7]

7. It follows that the existence of a gap between ceasing work and claiming employment and support allowance is not necessarily fatal to the claimant retaining worker status. Judge White considered the effect of delay between ceasing work and making a claim in Secretary of State for Work and Pensions v MK [2013] UKUT 163 (AAC). In that case, the claim was for jobseeker’s allowance; in this case, the claim was for employment and support allowance. That difference does not affect the principle that a delay is not necessarily fatal to a claimant retaining worker status. If anything, the case is stronger for a claimant who delays in making a claim for employment and support allowance rather than for jobseeker’s allowance. In the latter case, the issue arises whether the claimant remained in the job market. That issue does not arise for the purposes of employment and support allowance. Regulation 6(2)(a) does not impose any requirement that the claimant must claim benefit. It applies if the facts are such that the claimant has an illness and is, as a result, temporarily unable to work.

the points preceding my post here on his potential retained worker status are well made and of course reliant on the facts as set out , but - absent any argument around those temporary illness/reasons for dismissal points - an AT-type threshold to qualify for UC as a result of destitution has to be met when relying on that particular route (as I understand it).

Having £700 in savings is to some extent relevant to the question of hardship (in fact in AT cases it is a test of “destitution”, not hardship)  ...but not necessarily fatal in itself ......more likely potentially fatal might be (IMO) the fact he appears to have maintained his accommodation since at least October (9 months ago). Your post is unclear on this.

You ask:-

Would an argument be that without Universal Credit he would not have accommodation and heating and washing facilities as he could not pay rent so is likely to lose tenancy, also £700 savings is limited funds that it would be reasonable to state that since he declared this in October 2023 he no- longer has?

...it all begs the questions:- if he indeed has,  how has he paid for the rent since October? or for Food? Living Expenses….etc….(all of which I presume comes to much more than £700)

I know this approach (immediately above) appears to put the cart before the horse in many ways

Hi,

If he has lived in the UK for ten years he should be entitled to have his PSS changed to Settled Status as the ten years don’t have to be as a qualifying right to reside.

Jim

Thanks, I have advised him to get Immigration advice, I am not sure why he did not apply for Settled Status as I feel he is eligible.

Thanks, yes have referred for Immigration Advice, neither he or we are sure why he has Pre Settled Status.