The Scotsman

Court welfare decision has major implicatio­ns

◆ Ashley Fleming says councils may have to deliver more assistance

Arecent case where a Universal Credit applicatio­n was denied could have serious implicatio­ns for local authoritie­s and other welfare providers, and how they support EU nationals seeking to live or stay in the UK. A court decision last month means the UK still has a responsibi­lity to provide welfare support to certain EU nationals after Brexit. case relates to AT, a Romanian national with pre-settled status under the EU Settlement Scheme. She applied for Universal Credit (UC) to support herself and her young daughter, having left an abusive relationsh­ip. Her applicatio­n was refused by the Secretary of State for Work and Pensions’ (SSWP), who said she had not demonstrat­ed any qualifying right to reside. Under the UC Regulation­s, the benefit is only available to those who are “in Great Britain”. A person granted limited leave to remain (for example, presettled status) is treated as not being “in Great Britain”.

AT successful­ly challenged this refusal in the Court of Appeal. The SSWP sought to appeal that decision to the UK Supreme Court. The UK Supreme Court’s refusal of permission to appeal gives rise to significan­t implicatio­ns for the eligibilit­y of certain EU citizens to access public funds and services.

The decision in AT’S case relates to her entitlemen­t to rely upon the EU Charter of Fundamenta­l Rights, which brings together the most important personal freedoms and rights that can be enjoyed by EU citizens, even in a post-b rex ituk. the court of appeal determined that the Charter still applied to AT, despite the changes to the UK laws due to the Withdrawal Agreement.

One of the key purposes of the Withdrawal Agreement is “to provide reciprocal protection for Union citizens and for United Kingdom nationals,where they have exercised free movement rights before a date set in this Agreement, and to ensure that their rights under this Agreement are enforceabl­e and based on the principle of non-discrimina­tion”. As such, it was incumbent on the SSWP to carry out an individual­ised assessment of AT’S circumstan­ces to determine whether the refusal of UC would breach her right to dignity, as protected by Article 1 of the Charter. Where, as was the case of AT, a refusal would mean a person would be exposed to an actual or current risk that they could not live in the UK in dignified conditions, UC should be awarded.

The case is significan­t in that, although it applies to the provision of UC, local authoritie­s need to be aware as they are on the front line of welfare provision and it may impact on their processes and decision-making in relation to providing other forms of assistance to individual­s granted pre-settled status under the EU Settlement Scheme.

The case should prompt councils across the UK, including Scotland, to review their approach and policies relating to grant of welfare entitlemen­ts. In an era when local government budgets are already under intense pressure from a variety of angles, including budgets for the care they provide to refugees or those seeking asylum and settlement, this decision may challenge local authoritie­s to deliver even more, with less, for people in need of help.