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test cases
Updated 15 May 2009
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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.
Read our summary and guidance for advisers: Overpayment Recovery Test Case
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.
B -v- Secretary of State for Work and Pensions
Overpayment caused by failure to disclose – whether overpayment recoverable – whether failure reasonable
This was an appeal to the Court of Appeal from the Tribunal of Commissioner's decision in CIS/4348/2003.
The claimant had been overpaid income support for her children when she failed to disclose that they had been taken into care. The appeal tribunal found that disclosure was not reasonably required of the claimant until she had been advised by a social worker to report the change as prior to that her learning difficulties had reasonably prevented her from appreciating the need to inform the DWP of this change.
Reversing this decision, and 20 years of case-law, the commissioners held that a duty to disclose information for the purposes of s 71 Social Security Administration Act 1992 arose under regulation 32(1) Claims and Payments Regulations. They further held that this duty was not subject to any test of reasonableness, and that providing the claimant knew the fact in question, she had breached this duty, and the overpayment was recoverable from her.
The Court of Appeal upheld the Commissioners’ decision. In their view the meaning of “failure to disclose” in section 71(1) admitted of no qualification in favour of claimants who did not appreciate that they had an obligation to disclose something once they were aware of it. Non-compliance with regulation 32 was not only a necessary but also a sufficient condition of the Secretary of State’s entitlement to recover under s 71(1). The Court said the DWP would have to decide as a matter of discretion, whether to recover overpayments in cases like this one, where the claimant did not realise whether they were being overpaid. It was told that the DWP had a policy on how the discretion should be exercised. The Court said that it should be made available to organisations such as CPAG and Cit A. See the article from the Welfare Rights Bulletin summarising the guidance and a copy of the guidance.
Leave to appeal to the House of Lords has been was refused. The claimant has made an application to the European Court of Human Rights. The court has directed the Secretary of State to make observations by 10/7/09.
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. A decision is awaited.
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
This case has been stayed pending the outcome of the Court of Appeal’s decision in Patmalniece, the appeal against CPC/1072/2006.
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.
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 following the House of Lords’ decision in RJM, please see archive.
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 following the House of Lords’ decision in RJM, please see archive.
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. The claimant has appealed to the Upper Tribunal.
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.
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.
Right to reside cases
- EU nationals divorced from other EU nationals who claim IS as LPs or because they can't work for some other reason. Either "old" EU nationals or A8 nationals where either the claimant or their partner has done registered work for a year, or is self employed.
- EU nationals married to UK nationals and supported by them for over 5 years, then divorced and unable to work. "Old" EU nationals or A8 nationals after April 2009.
- Pregnancy cases – where claimant has to stop work because of pregnancy and claim IS in pregnancy period either because they have been dismissed or because they are doing heavy work, and has no continuing employment rights. Either "old" EU nationals or A8 nationals where claimant has done registered work for 12 months or is self employed.
If you are an adviser and you would like to refer a test case to us, please contact:
sclarke@cpag.org.uk or gtegg@cpag.org.uk
Scottish test cases
Please note that regrettably we cannot take referrals of test cases from Scotland. The reason for this is that CPAG’s only solicitor is based in London and we cannot apply for legal aid in Scotland or instruct counsel there.
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