Supreme Court refuses permission to appeal in AT case

The Supreme Court refused the Secretary of State's permission to appeal in the case of SSWP v AT on 7 February 2024, according to a Department for Work and Pensions circular¹. The refusal means the Court of Appeal judgment handed down on 8 November 2023 is final and must be implemented¹.

The case concerns EU national claimants with pre-settled status under the EU Settlement Scheme who have no other legal right to reside for the purpose of the habitual residence test when claiming social assistance such as Universal Credit or Housing Benefit¹. In its 8 November 2023 judgment, the Court of Appeal dismissed the Secretary of State's appeal against an Upper Tribunal decision, finding that Charter rights continued to apply to EU citizens in scope of the Withdrawal Agreement¹. The Court of Appeal held that where the case applies, the Secretary of State was required to consider whether refusing social assistance would put a person at risk of destitution¹.

The Upper Tribunal findings are declaratory in law, meaning they can be applied to new cases from the date of the decision, 12 December 2022, which is the relevant determination date¹. The circular states this affects new claims, existing cases at the mandatory reconsideration stage, and HRT review cases, both single and joint claimants, relating to entitlement of EU nationals with pre-settled status from 12 December 2022 onwards¹.

The judgment does not affect claims from non-EU nationals, including those from Norway, Iceland, Liechtenstein and Switzerland; claimants not in scope of the Withdrawal Agreement at the end of the transition period on 31 December 2020; claims from those with settled status, a Certificate of Application or any other form of leave; or decisions considering entitlement before 12 December 2022¹.

For Housing Benefit claims, decision makers must first consider each claim under the usual habitual residence test rules¹. Where a claimant does not meet the HRT, decision makers must consider whether they fall within scope of the AT judgment¹. Claimants covered are EU nationals with pre-settled status who are in scope of the Withdrawal Agreement¹. Where a claimant cannot demonstrate a qualifying right to reside, the decision maker must consider whether the claimant is able to work and, if not, whether they meet the AT threshold¹. The circular describes that threshold as the inability to meet most basic needs at present or in the near future, adding that it is high and must amount to extreme material poverty incompatible with human dignity¹. Basic needs listed are food, personal hygiene, clothing, housing and adequate heating¹. For State Pension age claimants, an assessment of ability to work is not required¹.

Why it matters for households

EU nationals with pre-settled status who have claimed Housing Benefit or Universal Credit without another right to reside, and who were refused on habitual residence test grounds, are affected by this judgment¹. The relevant determination date is 12 December 2022, so the position applies to claims and decisions from that date onwards, including new claims, cases at mandatory reconsideration stage and HRT review cases¹. Cases stayed under section 25(2) of the Social Security Act 1998 should now be processed and a decision made¹. Claimants who pass the habitual residence test continue to receive Housing Benefit on that basis¹. Those who do not pass it may still have their claim allowed if they are assessed as unable to work and as meeting the destitution threshold set out in the Upper Tribunal decision¹. The judgment does not change the position for claimants with settled status, a Certificate of Application or other leave, or for decisions about entitlement before 12 December 2022¹.

What happens next

The circular says the judgment is final and needs to be implemented, and that any cases stayed under section 25(2) of the Social Security Act 1998 should now be processed with an appropriate decision made¹. Where a decision maker is unsure how to proceed, the case with all evidence should be escalated to the DWP's international access to benefit policy team¹. The circular was reissued with paragraph 13 revised for clarity, and was updated on 17 October 2025¹.