Housing Systems: Combating poverty and sustaining tenancies.

Can't obtain due to Domestic Violence?
In an Upper Tribunal decision FN v SSWP (UC) [2022] UKUT 77 (AAC) (CUC/637/2021) Judge Ward addressed the matter of difficulty obtaining evidence of a family member's right to reside where there was domestic violence and a non molestation order.

He stated:
"....in the context of domestic violence and a non-molestation injunction there may realistically be limitations on what a party can be expected to achieve on their own initiative, even with a degree of support, and ....in such circumstances the First Tier Tribunal's power to make an order under Reg.16 of the First Tier Tribunal's Rules may be a useful tool for enabling DWP’s data protection issues to be overcome and enabling justice to be done."

However he warned that anyone advising a claimant should ensure reasonable endeavours have been made to obtain the information:
"I do understand that intervention by the 
First Tier Tribunal should not be a first resort and advisers seeking such orders may be well-advised to make clear in a stand-alone application not only what they are seeking and why, but what steps have been taken, unsuccessfully, to date."

Although not directly concerned with benefits and appeals, it could be worth referring to guidance
 for Home Office staff considering the rights of someone who is a victim of domestic violence. 
Although it is based on Free Movement Rights which have now ended, it could be useful to persuade DWP that they should follow the principles of a pragmatic approach in such cases.

It is extracted from "Free Movement Rights: direct family members of European Economic Area (EEA) nationals Version 6.0" (July 24th 2018). 

"Domestic violence
This section tells you how to deal with applications from family members of European
Economic Area (EEA) nationals who are victims of domestic violence.

The relevant parts of the Immigration (European Economic Area) Regulations 2016
(as amended) (the 2016 regulations) are:
• regulation 10 – retained rights
• regulation 15 – permanent residence

If there has been a breakdown in the relationship between the applicant and their
EEA national sponsor, it may not always be possible for them to get the documents
needed to support their application.
For example, proof of the EEA national sponsor’s nationality and evidence they are
exercising free movement rights.
You must take a pragmatic approach if the applicant provides proof to show they
were the victim of domestic violence and cannot provide evidence relating to their
EEA national sponsor’s nationality or free movement rights. Asking them to do so in
these circumstances could put the applicant at risk.
The pragmatic approach does not apply if there has been a breakdown in the
relationship but there is no element of domestic violence involved.
For further information on what evidence must be presented to accept cases
involving domestic violence, see: Victims of domestic violence.

Permanent residence
Applicants may have difficulty providing evidence to cover a continuous 5 year
period when they are applying for a document confirming a permanent right of
If there are periods of time that the applicant cannot provide documents for or where
checks with Her Majesty’s Revenue & Customs (HMRC) do not cover the full 5 year
period you must discuss the case with your senior caseworker.
They will decide whether you can apply discretion based on the individual
circumstances of the case.

The senior caseworker must look at the amount of information provided by the
applicant along with the level of evidence that has been gathered.

Enquiries to make in cases of domestic violence
There are a number of enquiries you can make if you receive an application for a
registration certificate or residence card from family members of European Economic
Area (EEA) nationals who suffer domestic violence.
If it is agreed by your senior caseworker that you can make additional enquiries, the
applicant must give you as much detail as they can about the EEA national sponsor:

• if they cannot provide proof of the EEA national sponsor’s identity, nationality or
proof of relationship, then you must check existing records on CID to see if their
identity has been established in any previous applications
• if known, you can contact the employer or educational establishment to enquire
if the EEA national sponsor is working or studying there.
• the decision to contact the employer or educational establishment must be
made according to the facts of the individual case and along with a senior
caseworker and you must not mention the domestic violence to the employer or
educational establishment
• if the decision is made not to get information directly from the EEA national’s
employer or educational establishment, you must make enquiries with Her
Majesty’s Revenue & Customs (HMRC) to try and gather the necessary
information, for example because:
  -  of the exceptional circumstances of the case
  -  the EEA national is self-employed".

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