To be entitled to benefits an EU National with Pre-Settled Status^ has to have a Free Movement Right to Reside (click here for more details).
However due to some caselaw, where an EU National with Pre-Settled Status^ doesn't have a Free Movement Right to Reside, the benefit authority must consider whether refusing the benefit would mean that the claimant (and their family) would be at risk of living in the UK in undignified conditions (which would be a breach of their Human Rights). If they find that it would, then they must award that benefit.
DWP guidance states:
'The AT threshold for this guidance means the inability to ‘meet their most basic needs’ at present or in the near future and should be considered in all cases. The threshold is high and the claimant’s position must amount to extreme material poverty incompatible with human dignity. Areas to be considered for basic needs are:
food;
personal hygiene;
clothing;
housing; and
adequate heating.'
'When looking at a claimant’s inability to meet their most basic needs, decision makers should consider what alternative financial resources claimants are in receipt of and whether those are sufficient to meet their most basic needs at present or in the near future.'
The Guidance states that this only applies to new claims for Universal Credit, Housing Benefit and Pension Credit from the date of the Court of Appeal’s decision: SSWP v AT [2023] EWCA Civ 1307 for England, Scotland and Wales being 12th December 2022 (see CG v Department for Communities NI in Northern Ireland).
What should a claimant do?
When applying for a benefit which requires a Free Movement Right to Reside, the EU National should seek to provide evidence of the risk that without assistance they would be unable to live in the UK in dignified conditions.
To do this, the claimant needs to demonstrate that there is no other reasonable way they could reliably obtain enough support, such as:
- the reasons why they are unable to work, and
- a statement from them, accompanied by any supporting evidence, which addresses the headings below.
^ or who have a valid pending application to the EUSS and that application (or appeal against, or administrative review of, a refusal) has not been finally determined, withdrawn or abandoned.