The UK Government established a settled status scheme to enable EU citizens living in the UK to continue to do so after Brexit (the "EUSS"). The EUSS operates to protect the existing benefit entitlements of EU citizens. The eligibility rules for universal credit ("UC"), a consolidated benefit entitlement, include the requirement for the recipient to be habitually resident in the UK, Ireland or certain Crown dependencies and have a qualifying right to reside in one of those locations. Amendments to the statutory framework in light of Brexit do not permit an applicant for UC to rely upon "leave to remain" in the UK as a result of pre-settled status ("PSS") granted under the EUSS.

                The two Respondents are Romanian nationals. Each resides in the UK but they have been economically inactive for a period of time. They submit that the change introduced by amendments to the statutory framework establishing the UC regime constitute unlawful discrimination against them on the grounds of their nationality.

The appellant, JB, is a 37 year-old single man with a complex diagnosis of autistic spectrum disorder combined with impaired cognition. JB has expressed a strong desire to have a girlfriend and engage in sexual relations. However, his previous behaviour towards women has led the respondent local authority to conclude that he cannot safely have unsupervised contact with them. 

                The local authority filed an application in the Court of Protection seeking declarations as to JB’s capacity in various areas, including his capacity to consent to sexual relations. The expert evidence was that JB understands that mechanics of sexual acts and the risks of pregnancy and sexually transmitted disease, but his "understanding of consent is lacking". 

                In the Court of Protection, the judge held that it was not necessary for a person to understand the need for their sexual partner’s consent and declared that JB has capacity to consent to sexual relations. The Court of Appeal disagreed. It held that, to have capacity to engage in sexual relations, a person needs to understand that their sexual partner must have the capacity to consent to the sexual activity and must in fact consent before and during the sexual activity. JB appeals to the Supreme Court.
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