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Homelessness eligibility and the Withdrawal Agreement – two (contradictory) appeals


C v Oldham Council. (2024) EWCC 1 (Judgment can be found here)

Hynek v LB Islington. Central London County Court 24 May 2024 (copy of judgment)

These are two s.204 appeals which address the effect of the Withdrawal Agreement (The Agreement of the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union,) on eligibility for housing assistance/homeless duties.

I don’t propose to go into great detail (not least because the intricacies of eligibility issues and immigration status and post-Brexit status make my head hurt), but these are significant decisions which, one imagines are certainly headed to the Court of Appeal.

The importance of the Withdrawal Agreement is that it “has been given domestic effect by the European Union (Withdrawal) Act 2018, section 7A. The effect of sections 7A (3) and 20(1) is that any rights flowing from the WA supersedes any incompatible provisions of domestic law whenever passed or made.” And “Under articles 4(2) to (5), the UK must interpret the WA in accordance with Union law and disapply inconsistent or incompatible domestic provisions.”

In C, C had Pre-Settled Status, she had come to the UK as a non-EU citizen, but was the dependant of her daughters, who were EU citizens. At the time of the coming into force of the Withdrawal Agreement on 31 December 2020, she was still the dependant of one or both of her daughters. That relationship broke down such that she applied as homeless in 2022. It was common ground that at this point she was in receipt of pension credit and was not a dependant. The council found she was ineligible as falling under Regulation 6 of Allocation of Housing and Homelessness (Eligibility)(England) Regulations 2006.

The Court allowed the appeal, finding that Ms C’s rights under the Withdrawal Agreement accrued at the time it came into effect, and her subsequent change in status did not deprive her of her rights, by operation of Article 17(2) Withdrawal Agreement, though not on any other basis.

In Hynek, the court held that the Withdrawal Agreement superseded previous decisions on on the the requirement to be a worker, self employed, or a family member of such, as per CG v Department for Communities in Northern Ireland (2021) 1 WLR 5919; and Dano v Jobcenter Leipzig (C-333/13) (2015) 1 W.L.R. 2519. It was sufficient that Mr Hynek had Pre-Settled Status and that he had had such a status at the the time of the introduction of the Withdrawal Agreement and expiry of the transitional period on 31 December 2020.

Secondly, the council was wrong to rely on Mr S being in receipt of Universal Credit as sufficient to mean there was no breach of the Withdrawal Agreement

The provision of Universal Credit is not a universal panacea although, obviously, it can be of considerable assistance. In my view, the grant, of UC itself, cannot mean (as the decision appears to suggest) that the appellant can almost inevitably avail himself of an ability to provide housing for himself. That must be wrong. As just one example to the contrary, it does not resolve the difficulty of obtaining a deposit in private sector accommodation, and the likely cost – particularly if accommodation is sought in London or in one of the other major cities of the UK. Interestingly, it is of note that the respondent has set up its own scheme to help individuals with this problem and that is perhaps indicative of the weakness of the respondent’s argument.

These are obviously of importance for anyone with Pre-Settled Status. That said, it has to be noted that the decisions are contradictory in their findings as to law, regardless of outcome. Court of Appeal doubtless awaits…

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.


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