In the case of Fratila v Secretary of State for Work and Pensions  UKSC 53, the Supreme Court found that government regulations, which exclude people with pre-settled status from being able to claim Universal Credit when they are not exercising a qualifying right to reside, are not discriminatory. As this leaves many people with pre-settled status unable to access Universal Credit and other means tested benefits, councils will need to be aware of how to respond when residents who are in this position are homeless, at risk of homelessness, or do not have sufficient income to meet their basic living needs.
When will a person with pre-settled status qualify for benefits?
A person with pre-settled status will only be eligible for Universal Credit (and other means-tested benefits), if they are exercising a qualifying right to reside, such as. Examples of when a person will have a qualifying right to reside include:
- An EEA national who is working, self-employed, or recently stopped working, or the family member of an EEA worker/self-employed person
- A family member who has a retained right to reside
- The primary carer of a child, who is in education and whose parent is an EEA national who has worked in the UK
A similar eligibility test will need to be met when a person with pre-settled status makes a homelessness application to their local council.
Groups who may not be able to qualify for benefits or homelessness assistance include people who are:
- Unable to work due to caring responsibilities, a disability, or illness
- Experiencing homelessness and face difficulties obtaining or sustaining work
- Undertaking casual employment and are unable to evidence that they have a right to reside as a worker
- Zambrano carers (their only right to reside is as the primary carer of a British citizen, usually a child)
A person who has the right to reside as a jobseeker, a self-sufficient person, a student or their family member, or as the primary carer of a self-sufficient child, will be able to claim Child Benefit.
A person can rely on their pre-settled status in order to meet the residence requirement for a Personal Independence Payment, Disability Living Allowance, Attendance Allowance, and Carer’s Allowance. However, these benefits are intended to meet additional needs relating to a disability or health condition, rather than their basic living and housing costs.
The Child Poverty Action Group provide more information about the Supreme Court judgment, including guidance for claimants and benefit advisers.
What support can be provided when a person is ineligible for benefits?
When a person with pre-settled status is homeless, at risk of homelessness and/or does not have sufficient funds to meet their basic living needs, the Council can provide accommodation and financial support when social services’ duties are engaged. For further details about when these will apply, see our information about social services’ support for families and social services’ support for adults.
Former looked after children can also be provided with accommodation and financial support whilst leaving care duties continue to apply to them.
There are no immigration-related restrictions affecting the Council’s ability to provide social services’ support to people with pre-settled status. Schedule 3 of the Nationality, Immigration and Asylum Act 2002 does not apply to people who are lawfully present in the UK, including those who have been granted pre-settled status. Therefore, a human rights assessment should not be undertaken when the person or family qualifies for support.
When a person does not have children in their care or care and support needs, and is at risk of rough sleeping, the housing authority will need to consider the person’s options, including whether support can be provided on a discretionary basis.
How can a person’s homelessness or lack of access to funds be resolved?
When a person with pre-settled status has completed five years continuous residence in the UK, they will be able to apply for settled status under the EU Settlement Scheme. When they obtain settled status, they will qualify for benefits and homelessness assistance. However, if the person entered the UK shortly before December 2020, or after this date as a joining family member, it could be several years before they are able to qualify for settled status.
Councils can take the following steps to assist people with pre-settled status to avoid homelessness and to reduce costs when accommodation and financial support is provided:
- Advise a person with pre-settled status to apply for benefits so that the DWP can determine their eligibility, even if it appears that they may not have a qualifying right to reside. If the application is refused, they would need to be signposted to a benefits adviser to find out if the decision can be challenged.
- Assist a person who is able to work to access local employment services.
- Advise families about their entitlement to free childcare and assist them to access this.
- Signpost a person to an immigration adviser if they have been granted pre-settled status but think that they should have qualified for settled status, as they may be able to challenge this decision.
- Ensure that people with pre-settled status are made aware that they can apply for settled status as soon as they have completed five years residence in the UK and signpost to an immigration adviser when they are able to apply.
However, there will be many cases where people with pre-settled status are unable to access employment and qualify for benefits, such as when a parent is caring for young children or a child with additional needs, or when a person cannot work due to a disability or illness. Due to the long-term cost implications for councils that arise from supporting people with pre-settled status, evidencing and raising these impacts with government continues to be a policy priority for us. Councils can contribute to this work by recording households on NRPF Connect when social services’ support is requested or provided, and by informing us about local impacts, either directly or through the regional networks.