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test cases
Updated March 2008
Current
test cases
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 under Articles 1 and 14 of the European Convention
on Human Rights.
At first instance the claim was
dismissed. The court held:
- That being
“without accommodation” is not a “personal characteristic"
for the purposes of Article 14.
- 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.
2. 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 is listed for hearing on 18/6/08.
NB We expect this case to decide whether non-contributory benefits are possessions for the purposes of Article 1P. Cases relying on this argument are likely to be stayed pending the outcome.
DWP – Overpayment recovery at common law – CO/4211/2007
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 SSAA 1992. Permission to apply for judicial review was granted on 6/2/08. We understand it will take up to 18 months to get a full hearing.
NB With effect from 10/3/08 the Secretary of State has given an undertaking not to issue any further letters asking for overpaid benefit to be repaid other than under s 71 Social Security Administration Act 1992 in circumstances where the original payment was made pursuant to and in accordance with a valid determination – ie not where they accept the overpayment is not recoverable.
Please note that the Secretary of State will still be able to write and ask for recovery of overpayments which are recoverable under s 71 SSAA, so where the claimant has misrepresented or failed to disclose a material fact. He will also be able to request recovery of payments not made under an award, for instance duplicate payments, or errors such as a payment of £100 where only £50 was due under the award.
As part of the JR action it will be useful to gather evidence of the prevalence of the DMC practice of seeking recovery in official error cases. If you have any examples please email sclarke@cpag.org.uk
If claimants/advisers have letters sent prior to 10/3/08 where recovery is being sought on the above basis we advise that claimants refuse to pay the money on the basis that the demand is unlawful (of course the claimant can always choose if he or she so wishes to pay the money back voluntarily), and refer to our JR proceedings where necessary. Our understanding is that the DWP will generally agree not to recovery in these circumstances. However, if the DWP then sue for the money in the county court then the claim could be defended on the same basis (i.e. that the demand for repayment is unlawful - as long as it is an official error case), and the county court should be asked to stay/adjourn the proceedings until CPAG's JR has been concluded.
CHR/3855/2005, CDLA/948/2005 – Whether claimants can appeal against interlocutory decisions of Tribunal Chairs
These casesare due to be heard by a Tribunal of Commissioners on 12/5/08 together with CIS/3746/2006. The hearing is about 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 issue in this case is whether, where the appeal is not outside the tribunal’s jurisdiction, and there is no statutory provision barring a further right of appeal, the claimant can appeal to a Commissioner.
CDLA/2864/2007, joined with CDLA/2002/2006, CDLA/2106/2006, CDLA/496/2006 – Exporting DLA within the EU following C-299/05
In C-299/05 the ECJ held that the care component of DLA was a sickness benefit which could be exported within the EU.
These cases will look at how the decision in C-299/05 is to be applied in UK law.
CIS/1224/2007– Regulation 1408/71, Directive 2004/38/EC
The issues in this case are as follows:
- Whether Article 10a EC Regulation 1408/71 means that an EU national who is habitually resident in the UK has a right to receive special non-contributory benefits
- Whether an EU national who is unable to work due to his/her partner’s illness retains a right of residence
A reference to the ECJ has been requested.
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.
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.
The case was heard on 20/8/07 and we are still awaiting a decision.
Casewell – Appeal to the Court of Appeal from CIS/1068/2006
The claimant’s wife, who is disabled, receives direct payments from the local authority to pay for respite care. Payslips were issued to the claimant in respect of the payments. For income support, 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. 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 court dismissed the appeal. It held that Mr Casewell received earnings from Mrs Casewell, which if received from anyone else would have been treated as income for income support purposes. The Commissioner was entitled to treat this as his income for income support.
CIS/1132/2006 – Whether failure to award income support to a pregnant student constitutes indirect sex discrimination
This case was heard in April 2007. Further submissions were then made on Article 1P. We are awaiting a decision.
CIS/3715/2005
– Child maintenance premium for “old rules” CSA recipients
This case is
about whether the failure to allow a child maintenance premium in
the claimants’ income support, where she is in receipt of child
support under the “old rules”, discriminates against her.
This case was heard on 2nd October 2007. We are awaiting a decision.
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.
McCambridge
This case is only at the appeal tribunal level but is likely to go further. The argument is that the housing benefit regulation which takes into account in full as a source of income for the claimant a non-dependent’s child care element paid to her (for her child care costs) in her working tax credit is unlawful (and ultra vires the Tax Credits Act 2002) because that Act only allows that sum to be used to pay for child care.
The case has lost at tribunal and we are awaiting a full statement of reasons.
Test
cases needed
Tax credits – offsetting
CPAG is looking for cases where claimants have been overpaid for technical reasons, but there is no loss to the public purse, but HMRC has refused to write off the overpayment. This usually arises where someone has claimed tax credits as a couple when they should have claimed as a single claimant, or vice versa. We believe HMRC may be acting unlawfully if it is not prepared to consider writing off overpayments in these circumstances.
Community Care Grants – delays
CPAG is aware of long delays in processing awards and in determining review requests in community care grant applications in certain areas of the country. We believe unreasonable delays are unlawful. We are looking for cases where the claimant’s need is urgent and there is an ongoing delay.
If you have a case you think may be a test case, if you are an adviser, please contact us for more advice on our advice line.
If you are an individual, you should get advice from an adviser initially. If the adviser thinks that the case may be a test case, they can contact us about your case.
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