CPAG archived test cases

Secretary of State for Work and Pensions v Menary Smith

This is the Secretary of State’s appeal to the Court of Appeal from the Commissioner’s decision in CIS/2455/2004.

The case concerns the treatment of arrears of child support maintenance for income support. The court dismissed the Secretary of State’s appeal and remitted the case to the commissioners for a further decision.

CDLA/2864/2007, joined with CDLA/2002/2006, CDLA/2106/2006, CDLA/496/2006 – Exporting DLA/AA/CA within the EU following C-299/05

Prior to June 1992 DLA/AA/CA were classified as invalidity benefits which could be exported within the EU by claimants who were covered by EC Regulation 1408/71. From 1/6/92 DLA was listed by the UK as a “special non-contributory benefit” which meant it could not be exported.

Following a number of decisions by the European Court of Justice which held that listing a benefit as a special non-contributory benefit was not conclusive of its status, the European Commission brought forward legislation which would have made all three benefits fully exportable again. This was blocked by the UK and the European Commission brought a case against them in the European Court of Justice.

Please see articles in WRB no 201 and no 204 for further details of the background.

In C-299/05 the ECJ held that the care component of DLA was a sickness benefit. Sickness benefits can be exported within the EU in certain circumstances.

These cases will look at how the decision in C-299/05 is to be applied in UK law and in particular at the status of the mobility component of DLA, which is still listed as a special non-contributory benefit.

These cases were heard on 18th and 19th December 2008. CDLA/2864/2007 was decided in the claimant’s favour on the facts. CDLA/2002/2006, CDLA/2106/2006 and CDLA/496/2006 have been referred to the ECJ. CPAG is not involved in those cases.

Secretary of State for Work and Pensions v Lassal [2009] EWCA Civ 157

Article 16 Directive 2004/38/EC – Whether residence prior to 2006 can be taken into account to establish permanent right to reside

The claimant was a French national who lived in the UK as worker from September 1999 until February 2005 when she went to France to visit her mother. She returned to the UK in December 2005 to look for work and claimed jobseekers’ allowance from January 2006 until November 2006 when she claimed income support on the basis of pregnancy. She was refused on the ground that she had no right to reside in the UK.

This was the DWP’s appeal to the Court of Appeal against a decision by Commissioner Jacobs in CIS/4299/2007 in which the Commissioner held that the claimant had a permanent right of residence in the UK. The claimant was not represented in the Court of Appeal. CPAG intervened.

The Court of Appeal took the view that Directive 2004/38/EC which came into force on 30/4/06, should be interpreted so as to allow periods of residence under earlier Community law instruments to count for the purposes of Article 16. Because this was not clear, the question summarised below has been referred to the European Court of Justice:

Is Article 16 Directive 2004/38/EC to be interpreted as entitling an EU citizen to a right of permanent residence by virtue of the fact that she had been legally residence in accordance with earlier Community law instruments for a continuous period of 5 years ending prior to 30/4/06?

The judgment can be found here:
http://www.bailii.org/ew/cases/EWCA/Civ/2009/157.html

NB The DWP should accept there is a permanent right of residence under domestic law for those lawfully resident for five years since 2/10/00 who have not been absent from the UK for more than 6 months, or 12 months in specified circumstances – see paragraph 6 Schedule 4 Immigration (EEA) Regs 2006.

This case was heard in the ECJ on 17/3/10. The Advocate General’s opinion was given on 11th May 2010. The AG has held that residence in accordance with EU provisions prior to Directive 2004/38/EC does count towards the permanent right of residence under Article 16 Directive 2004/38/EC. We are now waiting for the decision of the court, which does not have to follow the opinion of the AG, although it usually does. The AG’s opinion is summarised in WRB 216 and can be found here: http://tinyurl.com/3xw3tq7.

Update October 2010

Judgment was given in this case on 7/10/10.

EU nationals who have lived in the UK lawfully for 5 years have a permanent right of residence in the UK which they only lose if they leave the country for 2 years. This right is in Article 16 Directive 2004/38/EC which was implemented on 30/4/06. The Lassal case was about whether 5 years' lawful residence prior to the implementation date could count for the purposes of Article 16.

The court was also asked to decide whether temporaray absences which occurred before 30/4/06 after a continuous period of 5 years' residence prevented the claimant from acquiring a permanent right of residence.

This case is important because means tested benefits are subject to a right to reside test. In some cases people who had worked for long periods and had lived in the UK "lawfully" for 5 years before Directive 2004/38/EC came into force were being denied benefits. This was because the Department for Work and Pensions was arguing that they did not have a permanent right of residence unless they fulfilled the requirements of the UK's own immigration rules, which only went back as far as 2/10/00. Someone who has lived and worked continuously in the UK for 5 years will count as having resided "lawfully". Periods of time exercising other EU rights such as studying, being self sufficient, being self employed, or looking for work should also count as lawful residence for the purposes of accruing 5 years' residence.

This particularly affected women who worked for long periods but then became economically inactive when they were bringing up families. They may have been resident in the UK for many years, but were denied the right to claim benefits here.

This case means that an EU national who has resided in the UK "lawfully" for a continuous period of 5 years prior to 30/4/06 has a permanent right of residence in the UK provided they have not subsequently left the UK for a continuous period of 2 years.

The next important issue will be whether other types of residence count as "lawful". The court did not need to consider this in Lassal since there was no dispute that the claimant had resided in the UK lawfully as a "worker" for the purposes of EU law. This is a question which may be answered in the forthcoming cases of McCarthy C-434/09 and Dias C-329/09.

The judgement means that Article 16 Directive 2004/38/EC has been transposed into UK law incorrectly, and the Immigration (EEA) Regulations 2006 should be amended to take this into account. In our view the law also needs reform in other areas, in particular to ensure that women retain a right of residence in the UK whilst they are unable to work due to pregnancy.

R(CPAG) v Secretary of State for Work and Pensions
DWP – Overpayment recovery at common law

This case is about whether the DWP has the power to recover an overpayment under the common law in addition to their powers under section 71 Social Security Administration Act 1992. The DWP wrote to over 65,000 claimants between March 2006 and February 2007 asking them to repay overpayments. The letters accepted that the overpayment was not recoverable under social security law, but notes accompanying the letter said it could be recovered from the claimant through the courts under common law. The DWP continued to write similar letters until they gave an undertaking to discontinue this practice on 10th March 2008. CPAG challenged the lawfulness of this practice by judicial review, arguing that s 71 SSAA was a complete statutory code which did not allow room for recovery at common law. The case was heard on 26/1/09 and judgment was given on 27/2/09. The application was dismissed and the court held that s 71 did not remove the Secretary of State’s power to recover at common law. CPAG lodged an appeal against the court’s decision.

Update October 2009

CPAG’s appeal in this case has been successful. The Court of Appeal accepted CPAG’s argument that s 71 was part of a complete statutory scheme and that the DWP had no power to recover outside the scheme. Put simply, the DWP can only recover under s 71. This means that if overpayments are caused by the DWP’s own error the Department cannot recover them by suing at common law in the county courts. Claimants who have been overpaid as a result of the DWP’s own errors can choose to repay voluntarily if they wish to.

Update December 2010
The DWP’s appeal to the Supreme Court has been unanimously dismissed. The Supreme Court has agreed with the Court of Appeal that the Secretary of State can only recover overpayments under s 71 Social Security Administration Act.

Update January 2011
The DWP has agreed to identify claimants who repaid or made arrangements to repay on the basis of the unlawful letters, and to repay where appropriate. Read the letter from the DWP (62kb PDF)

Read our summary and guidance for advisers: Overpayment Recovery Test Case

Zalewska v Department for Social Development

This case is about whether an A8 national who has worked in the UK for over 12 months, not all of which was registered, is a “worker” in UK law and entitled not to be discriminated against under article 7(2) EC Regulation 1612/68 in claiming benefits.

This case was heard by the House of Lords on 23rd and 24th July. CPAG has intervened in this case jointly with PLP, see above.

Judgment in this case was given on 12th November 2008. The House of Lords rejected the claimant’s argument that as an EU worker she was entitled not to be discriminated against under Article 7(2) Regulation 1612/68. It rejected the argument for the Department for Social Development that EU law did not apply at all to the national measures in respect of the workers’ registration scheme. It held by a majority of 3-2 that the effects of the scheme in denying entitlement to benefit to A8 nationals who had worked for 12 months, not all of which was registered, were not disproportionate.

Archived 15/05/09

Casewell – Appeal to the Court of Appeal from CIS/1068/2006

The claimant cares for his wife who is disabled and in receipt of DLA and SDA. He claims income support for them both jointly as a couple.

Prior to April 2004 the claimant lived within the administrative area of a council which made payments to him directly as a carer. These payments were disregarded as income for income support purposes.

The claimant moved to a different administrative area which carried out a community care assessment which showed a need for him to receive some respite. The local authority made payments to his wife. Payslips were issued by a charity called the Rowan Organisation, showing them as an amount paid to the claimant by his wife.

For income support purposes, the direct payments were disregarded as the income of the claimant’s wife under Sched 9 para 58 IS(Gen) Regs. However they were then taken into account as the claimant’s earnings which had the effect of reducing the income support they jointly received by £53.50 per week. The commissioner held that this was correct, relying on regulation 23(1) IS(Gen) Regs which says that income and capital of the claimant’s partner is treated as the claimant’s.

The claimant appealed to the Court of Appeal, essentially on the basis that s 136 Social Security Contributions and Benefits Act requires that payments made to a member of a “family” for benefit purposes are counted once only when they come into the family, and if at that point they are disregarded, they cannot be counted again if they are transferred from one member of a family to another..

The Court dismissed the claimant’s appeal and held that the payments could be counted as the claimant’s earnings even though they were disregarded as his wife’s income. The payments to the claimant by his wife were earnings for services rendered, and in the claimant’s hands they became his income under section 136(1) of the Social Security Contributions and Benefits Act 1992.

We do not propose to appeal this decision further.

Please note: In CPAG’s view the analysis in this decision is bound up with situations where the payment to the claimant imposes a specific obligation on them to deal with the money in a particular way. It then allows for the money to be treated as earnings when paid on to another member of the claimant's benefit family.

An important point for advisers and local authorities in considering community care assessments is that where payments are intended to provide respite for a carer who is a member of the family of the person being cared for for benefit purposes, if the payments are made directly to the carer, they will be disregarded for income support purposes. If they are made to the person receiving the care to pay on to the carer, they are likely to be treated as the carer's income, and the family may receive little or no benefit from the payments.

Archived 15/05/09

CIS/160/2007 – joined with CIS/775/2007, CIS/3232/2005 and CJSA/700/2007
Right to reside – A8 nationals

This case is about whether an A8 national who has worked for over 12 months, the first 10 months of which was registered, the latter months of which were not, has a right to reside in the UK for the purposes of claiming income support. The Public Law Project is representing the claimant in CIS/775/2007.

Commissioner Rowlands has now given a decision in this case. He dismissed the claimants’ appeals, holding that it was not disproportionate to refuse a right of residence to an A8 national who has worked for 12 months in the UK when the whole period was not registered.

The claimant in CIS/160/2007 has decided not to appeal to the Court of Appeal. Please note however that CPAG and PLP have been granted leave to intervene in Zalewska v DSD which is to be heard by the House of Lords on 23 and 24th July and which raises similar issues.

For the full decision please see:
http://www.osscsc.gov.uk/judgmentfiles/j2398/CIS%203232%202006-00.doc

Archived 15/05/09

CIS/2100/2007 – Meaning of “dependent” family member

The issue in this case is what “dependent” means in Article 2 Directive 2004/38/EC and in regulation 7 Immigration (EEA) Regulations.

Commissioner Jacobs has now given a decision in this case. He remitted the case to a tribunal for a further decision on the facts and held that there was no conflict between the existing case law on the subject. He held that the case law is authority for the following propositions:

• A person is only dependent who actually receives support from another.
• There need be no right to that support and it is irrelevant that there are alternative sources of support available.
• That support must be material, although not necessarily financial, and must provide for, or contribute towards, the basic necessities of life.

The claimant in this case argued that support could be emotional – the Commissioner expressed no opinion on this.

For the full decision please see: http://www.osscsc.gov.uk/aspx/view.aspx?id=2426

CHR/3855/2005, CDLA/948/2005 – Whether claimants can appeal against interlocutory decisions of Tribunal Chairs

These cases were heard by a Tribunal of Commissioners on 12/5/08 together with CIS/3746/2006.

The issue is whether there is a right of appeal to a social security commissioner against an interlocutory decision of a tribunal chair. In all three cases the interlocutory decision in question is a refusal of leave to appeal outside the initial one month time limit, but within the overall 13 month time limit.

CHR/3855/2005 was originally heard together with CIS/1363/2005, CIS/2322/2005 and CJSA/3742/2005 by Commissioner Rowlands. The Commissioner held there was a right of appeal and granted the claimant leave to appeal.

The Secretary of State appealed against the decisions in CIS/1363/2005 and CIS/2322/2005 in Secretary of State for Work and Pensions v Morina and Borrowdale [2007] EWCA Civ 749. The claimant in CHR/3855/2005 intervened. The Secretary of State’s appeal was successful. However the terms of the judgment were limited. The Court held that where decisions are outside a tribunal’s jurisdiction altogether, ie because the appeal was made outside the overall 13 month time limit, as in Morina, or where the decision is not appealable ie because there is a provision which bars this specifically as in Borrowdale, the commissioner has no jurisdiction.

The Commissioners’ decision was made on 4/7/08. They have held that following Morina, there is no right of appeal against a decision not to admit a late appeal, irrespective of whether the application was made within the absolute 13 month time limit. They did not think that the court in Morina had in mind any distinction. The legal remedy was judicial review. The Commissioners recognised this was not an attractive alternative, but referred to the forthcoming tribunal reforms when judicial review jurisdiction for some cases will pass to the Upper Tribunal.

Since the Upper Tribunal has judicial review jurisdiction in respect of interlocutory decisions of the first Tier Tribunal from 3/11/08 the claimants in this case do not propose to appeal further. It appears this jurisdiction does not relate to decision of tribunals taken prior to 3/11/08. However, judicial review proceedings in respect of any such decisions could be transferred to the Upper Tribunal under the new rules.

Archived 15/05/09

RJM v Secretary of State for Work and Pensions

This case concerns the issue of whether the failure to award the disability premium to a homeless claimant discriminated against him in the enjoyment of his possessions contrary to Articles 1 and 14 of the European Convention on Human Rights.

At first instance the claim was dismissed. The court held:

1. That being “without accommodation” is not a “personal characteristic" for the purposes of Article 14.
2. Although he did not need to decide this point, the judge also held that any discrimination was justified, on the basis offered by the Secretary of State, that funds were better spent on helping claimants to find accommodation than paid by way of a disability premium.

Judgment was given by the Court of Appeal on 28/6/07. The appeal was dismissed and the court held as follows:

1. Article 1 P - But for the Secretary of State’s concession for the purposes of this case that the claimant’s claim fell within Article 1P, the court would have felt itself bound by the decision of the Court of Appeal in Campbell [2004] 3 All ER 387 that income support was not a possession.

2. Article 14 status - A “status” for the purposes of Article 14 discrimination was less likely to be within Article 14 if it derived from a person’s choice, and being without accommodation, especially by choice was not a status.

3. Article 14 justification. Failure to pay the disability premium to those without accommodation was within the S of S’s margin of discretion. He was entitled to decide there are better ways to help disabled homeless claimants than by giving them money which may do them more harm than good.

The House of Lords granted permission to appeal. The case was heard on 18th and 19th June. Judgment was given in this case on 22nd October 2008..

1. Income support is a possession for the purposes of Article 1 Protocol 1 to the European Convention on Human Rights in UK law following the European Court of Human Rights' decision in Stec
2. Being without accommodation is a status for the purposes of Article 14 ECHR.
3. The Secretary of State for Work and Pensions' was able to justify treating disabled people without accommodation differently from those with accommodation
4. The Court of Appeal is free to depart from its own previous decisions where these conflict with those of the ECtHR, particularly where this is a decision of the Grand Chamber.

See below for a link to the judgment on the House of Lords website. See also Welfare Rights Bulletin 207 for a summary of the important points in the case.

http://www.publications.parliament.uk/pa/ld200708/ldjudgmt/jd081022/rjm-1.htm

Archived 15/05/09

White and Runkee v United Kingdom (ECHR):
Right of widowers to widows' pension
Application nos 42949/98 and 53134/99

Judgment was given in this case on 10 May 2007. The Court held that the UK government’s failure to pay widow’s pension to men did not discriminate against them on grounds of sex; there was no violation of Article 14 taken in conjunction with Article 1P ECHR. It upheld its previous decision in Willis v the UK ECHR-IV that failure to pay widow’s payment did discriminate against men, contrary to Articles 14 and 1P ECHR.

Widow’s pension
This means that no matter when the widower made his claim for a pension on the death of his wife, or which court he took his complaint to, he cannot get an equivalent to widow's pension (even though widows who were widowed before 9 April 2001 continue to have entitlement to that pension transitionally protected).

Widow’s payment
As for an equivalent to a widow's payment for a wife who died before 9 April 2001 (the gender neutral bereavement payment started for deaths of husbands and wives after that date), some form of claim or oral enquiry would need to have been made to the DWP by the widower within 3 months of his wife's death before 9 April 2001 AND he must have made a complaint to Strasbourg against the DWP's then refusal to award him a widow(er)'s payment by no later than 4 November 2005. If he missed EITHER of these deadlines then his claim will not succeed.

Widowed mother’s allowance
The same rules apply to claims for an equivalent to widowed mother's allowance by a man whose wife died before 9 April 2001, with the additional qualification (i) that he will need to have had children of child benefit age at the relevant time and (ii) that any entitlement will be time limited up to 9 April 2001 in any event, as after that date such entitlement would have been switched over in any event to bereaved parent's allowance.

Again, some form of claim or oral enquiry would need to have been made to the DWP by the widower after his wife's death before 9 April 2001 for an equivalent to WMA AND he must have made a complaint to Strasbourg against the DWP's then refusal to award him an equivalent to WMA by no later than 4 November 2005. Missing EITHER of these deadlines will be fatal to any WMA claim.

Hinchy v Secretary of State for Work and Pensions (H of L)
Overpayments – failure to disclose

Mrs Hinchy had been overpaid income support when a severe disability premium continued to be paid when her fixed-term disability living allowance (DLA) award came to an end. It emerged during the case that the DSS (as it then was) had an internal card index system for transferring information about benefit awards from the Disability Benefit Unit to the income support office.

The Secretary of State sought to recover the overpayment under s 71 Social Security Administration Act 1992 on the basis that:

1. the claimant had failed to disclose the material fact that her DLA award had come to an end; and
2. s/he signed the counterfoil in her order book on 3 July 2000, which contained a declaration that she was entitled to a payment of income support which included a disability premium.

The Court of Appeal held that the overpayment was not recoverable from the claimant. It held that she had not failed to disclose the fact that her DLA award had stopped, because it was not possible to fail to disclose a fact the Secretary of State already knew: 'the word 'disclosure' requires something to be revealed or made apparent. That can only happen if the fact as stated is unknown to the recipient' (para 18). The Secretary of State cannot disclaim knowledge of his own decisions (para 39).

The House of Lords by a majority of 4-1 reversed the decision of the Court of Appeal and held that Mrs Hinchy had failed to disclose because she had not reported to her local IS office that her DLA had come to an end when her order book had instructed her to report such a change. Reading the social security scheme as a whole, and s 71 together with regulation 32 of the Claims and Payments Regulations, it was clear that the focus of the failure to disclose test was on the claimant doing something; and was not to be judged by an out of context test of what “disclose” could mean.

Comment: This is the end of the road for this case, and the House of Lords’ ruling means that the case law is back with the test laid down in R(SB)15/87 of the claimant having to report any changes to the local office concerned with that benefit. The focus of argument now, assuming that B (see below) is not successful, will have to shift to the quality of instructions given to claimants as to what they are required to report. Note, however, that the House of Lords’ decision does not say that CG/5631/1999 was wrongly decided, and so it remains arguable that you cannot have failed to disclose a fact if the local office actually knew that fact.

Archived 19/05/06

Pedro v Secretary of State for Work and Pensions

This is an appeal to the Court of Appeal against the Commissioner’s decision in CPC/1433/2008. In this case, the Commissioner held that in order for the claimant to be a dependent family member for the purposes of Article 2 Directive 2004/38/EC, the ECJ’s decision in Jia C-1/05 meant she had to show dependence in the member state of origin.

This case is due to be heard over 12-13th October 2009. . The appeal has been successful. Please see WRB 214 for details. The judgment can be found here: http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2009/1358.html&query=Pedro&method=boolean

Archived 8/12/2010

CIS/1132/2006 – Whether failure to award income support to a pregnant student constitutes indirect sex discrimination

A decision was made in this case on 10/2/09. The tribunal held that:

1. Statistics were not a necessary pre-condition to determining whether there was indirect discrimination in this case (AL (Serbia) v Home Secretary [2008] UKHL 42 and DH and others v The Czech Republic (2008) 47 EHRR 3 followed)
2. The Secretary of State having conceded that pregnancy was an “other status” for the purposes of Article 14, the question was whether there was an objective and reasonable justification for disentitling pregnant intercalating students from income support
3. The policy behind the regulations was that students who intercalate for essentially transient reasons should not receive benefit, but should rely on such support as might be available from the education authorities, and there was objective and reasonable justification for the inclusion of intercalating students during the later term of their pregnancy

Archived 8/12/2010