DWP pension credit 'claim closure' due to unlawful application of the HRT to a refugee

Use this template if all the following apply

Your client:

• has refugee status/humanitarian protection/leave outside the immigration rules
• claimed pension credit
• has been required to satisfy the habitual residence test
• has been refused pension credit or the decision on their claim is delayed 

This letter assumes that (so can be changed)

Your client 

• has had their pension credit claim ‘closed’ because they have failed the HRT, and
• was not informed of their appeal rights 

The main legal arguments in this template are:

1. The claimant (C) is a refugee/person granted humanitarian protection and is therefore exempt from the habitual residency test (HRT).
2. The DWP has acted unlawfully, contrary to reg 2(4) of The State Pension Credit Regulations 2002 in refusing C pension credit for the reason that C does not satisfy the HRT when C is exempt from the HRT.
3. It is also DWP policy that refugees and persons granted humanitarian protection are exempt from the HRT. Where published policy exists, there is a public law duty for decision-makers to follow it, as held by Lord Dyson in R (Lumba) v SSHD [2011] UKSC 12 at [26].
4. Decisions awarding or refusing benefit are appealable, including whether there has been a valid claim or where the claim is defective.
5. DWP's UC operational guidance provides that 'closing' a claim is a decision that carries a right of appeal and that claimants must be notified of the decision to close their claim in writing.
6. Under the Social Security and Child Support (Decisions and Appeals) Regulations 1999 written notice of decisions under the Social Security Act 1998 must be provided. 

Information about your client

• name
• address
• national insurance number (NINO)
• date of birth

Background facts

Such as:

• evidence of your client's immigration status how and when this was provided to the DWP, and how and when the DWP have responded
• the date your client claimed pension credit and how they did so
• your client's income, what they are living on now, details of any financial hardship
• details of your client’s family, any disabilities in the household, and any relevant information about their living conditions
• consequential losses (financial and emotional distress) from being denied pension credit

Information relating to the decision

• when and how your client was made subject to the HRT
• when and how their pension credit application was 'closed'
• how the DWP has responded to any steps taken to clarify your clients immigration status

We've created this guide to help you successfully use our judicial review pre-action letter templates: Guide to using CPAG's judicial review pre-action letter templates

Once you've finished your letter, please email it to us at: [email protected] before you send it to the lawyers acting for DWP/HMRC/your local authority. We'll try to reply as quickly as possible and will do so within 7 days.