MPs demand answers on ‘unlawful’ DWP benefits guidance

Select committee says crucial legal “safety net” for EEA nationals is not mentioned in memo for decision makers
DWP'S Caxton House HQ. Photo: Google Maps

By Jim Dunton

27 Jun 2022

The Department for Work and Pensions has been accused of issuing “unlawful” guidance for officials deciding on benefits applications that could have denied some European Economic Area nationals their right to support.

Sir Stephen Timms, chair of parliament’s Work and Pensions Select Committee, said a memo issued to decision makers working for DWP earlier this year made no reference to a legal “safety net” available to EEA nationals with pre-settled status.

Non-working EEA nationals are the people most likely to be affected by the issue, which relates to an Court of Justice of the European Union ruling. It holds that having pre-settled status alone does not establish a right of residence to qualify for income-related benefits.

But Timms said the University of York-based EU Rights and Brexit Hub had alerted MPs that a memo for decision-making staff circulated by DWP in January failed to make reference to an important test the CJEU said should be applied to EEA benefits claimants before a refusal.

It calls for officials to be sure that denying benefits to an individual does not breach their rights under the EU Charter of Fundamental Rights, which covers human dignity, the right to respect for private and family life, and the best interests of children.

In a letter to welfare-delivery minister David Rutley, Timms said January’s memo made no reference to the fundamental-rights test, suggesting that decision makers were not applying it. 

“The EU Rights and Brexit Hub wrote to us that this omission makes the guidance ‘unlawful and will lead to decision makers failing to undertake this assessment aimed at protecting the most vulnerable EEA nationals from destitution’,” he wrote.

“The CJEU judgment remains binding in its entirety on and in the UK. The committee understands that the test it requires is not currently in guidance to decision makers, and therefore is not taking place, potentially depriving EEA nationals of access to Universal Credit that would otherwise be accessible to them.”

Timms asked Rutley how many EEA nationals with pre-settled status had been denied Universal Credit because they lacked a relevant right to reside.

He also asked what steps the government is taking to identify people who might have been denied benefits due to because of the issue, and when the DWP’s guidance will be updated.

Timms gave Rutley until 15 July to respond.

CSW offered DWP the opportunity to comment on the issues raised in Timms’ letter. It had not done so at the time of publication.

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