Interim in the interim?

Issue 223 (August 2011)

Martin Williams discusses a pending case which assists claimants struggling to cope because disputes about their entitlement are pending before a tribunal.

In Bulletin 222, we discussed the lawfulness of reg 2(1A) of the Social Security (Payments on Account, Overpayments and Recovery) Regulations 1988 (SI 1988 No.664), which prevented the making of interim payments to a claimant who was appealing against a negative entitlement decision. That article considered the position where the issue in the appeal was whether or not the claimant had a ‘right to reside’.

There is now a case1pending in which a much broader challenge to the lawfulness of this rule is being made. Should this case succeed, then interim payments may be available in other cases (in addition to right to reside challenges) where the claimant is suffering hardship while awaiting the appeal. Moreover, even while the main challenge in the case is pending, it has already become apparent that if similar applications are now made to the High Court, the claimant can be granted interim payments while that Court considers the lawfulness of the rule preventing interim payments pending appeal.

With the growing delays in determining appeals in the First tier Tribunal (Social Entitlement Chamber) at Her Majesty’s Courts and Tribunals Service (time taken to dispose of an appeal from receipt by the tribunal until decision ending proceedings has risen from under 10 weeks in April 2008 to nearly 24 weeks in April 20112), it is to be hoped that the case will succeed.

Facts of the case

The claimant was in receipt of income-related employment and support allowance. The Secretary of State for Work and Pensions (SSWP) first suspended and then ended her entitlement on the basis that she was regarded as living together as husband and wife with a man in full-time work. The claimant appealed against that decision on the grounds that she and the man were not living together as husband and wife.

Nearly four months after the appeal was made, the SSWP had still not produced a response to the appeal. The claimant, through her solicitors, had made numerous requests in writing and by telephone for the matter to be expedited. She also made an application for interim payments pending the appeal. The SSWP refused to make such payments on the basis that he was prevented from doing so by reg 2(1A). The claimant commenced judicial review proceedings in the High Court against this refusal. She also requested that the Court order the SSWP to make payments to her while it considered her challenge to the lawfulness of the rule which the SSWP considered had prevented him from doing so.

The claimant’s argument that reg 2(1A) is unlawful can be very roughly summarised as follows:

  • It is an irrational provision inasmuch as there is no reason why the power to make an interim payment should disappear simply because the claimant has filed a notice of appeal.
  • It is incompatible with the claimant’s right of access to a court under both the common law and Article 6 (right to an independent tribunal) of the European Convention on Human Rights. Specifically, the claimant argues that the right of access to a court requires, in appropriate cases, more than just a right of appeal, but also a right of access to interim measures capable of securing, for the time being, the rights in dispute.
  • Articles 6 and 3 of the Convention require the courts to have a power to grant interim payments in any case where prolonged delay in resolution of an appeal is such that Article 3 (right not to be subject to inhuman or degrading treatment) may become engaged – eg, a power to grant interim relief is needed in any case where the claimant may be placed, by the delay, in a situation where she cannot provide herself with sufficient food or fuel to maintain a minimum standard of dignity.

The High Court refused the claimant’s request that it order the SSWP to make interim payments while it considered whether to grant permission for her challenge to the lawfulness of reg 2(1A). Specifically, the Court held that it had no power to make such an order unless and until it had decided that reg 2(1A) was lawful.

The claimant sought permission to appeal against that order from the Court of Appeal and asked that the Court of Appeal itself order interim payments to be made to her while it considered whether to grant permission.

On 22 July 2011, the Court of Appeal granted permission to appeal and ordered the SSWP to make payments of £80 a week to theclaimant, pending the earliest of the determination of her appeal by the tribunal, or a further order of the Court. The Court commented that it was ‘arguable that the legislative scheme as a whole should be interpreted to permit the making of interim payments by the Secretary of State pending the appeal’ as ‘the procedures of the Tribunal mean that, in practice,the Secretary of State controls access to the Tribunal which decides the appeal from his decision’. The Court said the need for such relief was particularly clear in this case where it appeared that there had been unreasonable delay in sending the papers to the tribunal.

Future progress of the case

The above history means that different aspects of the case are now proceeding in different courts/tribunals:

  • The First-tier Tribunal is to consider the appeal against the ‘living together’ decision.
  • The Administrative Chamber of the High Court is to consider whether reg 2(1A) is lawful – eg, whether the SSWP is prevented from making interim payments in a case where there is an appeal pending.
  • The Court of Appeal is to consider whether the High Court has a power to grant interim payments pending its consideration of whether the rule preventing the SSWP from doing so is lawful.

Given that the Court of Appeal has granted permission on the point before it, it is likely that what it has to say may address the overall question of whether or not the rule preventing interim payments is lawful. That case is to be heard by the court at some time between mid-December 2011 and mid-March 2012.

Relevance to other cases

Advisers should carefully consider whether an approach similar to that taken by the claimant’s solicitors in the case discussed could assist their clients who are suffering hardship because appeals are outstanding. In doing so, advisers should consider:

  • the merits of the appeal against the decision challenged. The stronger the grounds of appeal appear from the papers, the stronger is the argument that interim payments should be made;
  • the degree of hardship faced by the claimant and the availability of alternative finances/ benefits. The greater the claimant’s hardship and the fewer alternative remedies available to her/him, the more strongly arguable becomes the case for interim payments pending appeal – eg, if a claimant could easily claim jobseeker’s allowance while her/his income support appeal is considered, her/his argument for interim payments is less strong;
  • the steps taken to have the appeal expedited. Advisers should do everything possible to have the appeal expedited – where a claimant causes avoidable delay in proceedings or does not try to have them expedited, the strength of the case for interim payments may be diminished;
  • eligibility for legal aid. It is likely that anyone in sufficient hardship to merit interim payments being made will qualify for legal aid.

In appropriate cases, a properly drafted letter before a claim for judicial review should be sent to the solicitors to the DWP. Advisers who are unable to do certificated work should consider referring the claimant to a solicitor who can obtain a legal aid certificate in order to take this action, and/or to commence proceedings.

  • 1. LD, R (on the application of) v SSWP (case reference: C1/2011/1936) – our thanks to Glenn Craig of Fisher Jones Greenwood Solicitors and to Simon Cox of Doughty Street Chambers for alerting us to this case.
  • 2. Her Majesty’s Courts and Tribunals Service, Social Security and Child Support Statistics: 1 April 2011 to 31 May 2011 – Statistical Notice, 15 July 2011