Test Cases

  • Universal credit assessment period inflexibility

    Last updated: June 5, 2019

    R (Woods, Barrett and Stewart) v SSWP CO/1552/2018

    On 29 March 2018, CPAG filed a claim for permission to apply for judicial review to challenge the rigidity of the assessment period regime in universal credit which results in some people being treated as receiving two monthly wages in one assessment period, in turn affecting the amount of their UC award.

    Update June 2019: The Secretary of State is currently seeking permission to appeal to the Court of Appeal against the High Court decision in this case. No stay of the High Court judgment has been sought and so the Johnson ruling should be applied in cases involving similar facts: where two separate monthly wages have been treated as earnings in the same assessment period, due to a regular payment date falling on a non-banking day and so being paid early. Despite this, we have received reports from several welfare rights advisers that the DWP is not applying the judgment in Johnson and continuing to treat wages from separate months as being earnings for the same assessment period. In these cases, we would encourage advisers to request a mandatory reconsideration, to protect claimants from losing out on work allowances. A template letter to request a MR is available here. Until such time as DWP update their guidance please also use the judicial review pre-action letter, available here

     

    Where a client’s pay situation is similar to but not on all fours with that of the claimants in Johnson eg paid fortnightly or paid four weekly rather than monthly, a mandatory reconsideration should still be sought on the basis that the reasoning in Johnson equally applies to such situations to the extent that: ‘There may however need to be an adjustment where it is clear that the amounts received in an assessment period do not, in fact, reflect, the amounts of earned income in respect of the period of time included within that assessment period (Johnson §52).

  • Bereavement Support Payments for Unmarried Parents

    Last updated: April 16, 2019

    Jackson & Others v SSWP CO/975/2019

    This case challenges the requirement under the Pensions Act 2014 in conjunction with the Bereavement Support Payment Regulations 2017 that, in order to be entitled to Bereavement Support Payment (BSP) at the higher rate, the claimant must have been the deceased’s spouse or civil partner.

    CPAG are representing two families where the mother has passed away, leaving the fathers, J and S, caring for their young children.

  • Two child limit challenge

    Last updated: April 16, 2019

    The substantive challenge to the two child policy was heard by the Court of Appeal on 19 and 20 December 2018.  Judgment was handed down on 16 April 2019. Read the Court of Appeal judgment and our press release.

    On 18 August 2017, CPAG issued a claim for judicial review in the High Court against the Secretary of State for Work and Pensions (SSWP) to challenge the two child limit, introduced by the Welfare Reform and Work Act 2016. Permission was granted on 17 October 2017 and the case was heard across two days on 6 and 7 February 2018.  Judgment was given on 20 April 2018 allowing the challenge in part.  The Court accepted CPAG's arguments that the ordering restriction on the kinship care exception was perverse and therefore unlawful.  The wider challenge to the policy as a whole was dismissed.  CPAG appealed this aspect of the case to the Court of Appeal. Meanwhile, in November 2018, the DWP/HMRC brought in amending legislation to remove the ordering restriction from both the kinship care and adopted children exceptions. Read the High Court judgment and our statement about the judgment.

  • Rehman v Upper Tribunal (SSWP interested party)

    Last updated: March 28, 2019

    Cart style judicial review challenging UT’s failure to grant permission to appeal the FTT decision to be heard by the High Court on 1 May 2019

    This case concerns entitlement to Widowed Parent’s Allowance (WPA) where the claimant and the deceased partner had undergone a religious ceremony and considered themselves to be and held themselves out as being legally married.

  • Disability Living Allowance 2 year Past Presence Test for returning British Citizens

    Last updated: March 28, 2019

    EK v SSWP and TS v SSWP

    These cases challenge the legality of the new past presence test (PPT), which requires a person to have been in the UK for 104 of the past 156 weeks before being eligible to claim Disability Living Allowance.

  • Disability Living Allowance and the Genuine and Sufficient Link Requirement

    Last updated: March 12, 2019

    Kavanagh v Secretary of State and Pensions [2019] EWCA Civ 272
    Judgment given by the Court of Appeal on 7 March 2019

    The genuine and sufficient link in disability living allowance and attendance allowance is to the UK as a whole, not simply the UK’s social security system, and both objective evidence but also motives, intentions and expectations of the claimant are relevant in establishing the link.

  • Universal Credit, disability and transitional protection

    Last updated: March 1, 2019

    R (TD and AD) v SSWP CO/590/2018; R (Reynolds) v SSWP CO/4542/2018

    This case continued notwithstanding the Ministerial statement and subsequent draft regulations claiming to provide transitional protection to those disabled people who have moved onto UC ahead of the managed migration process and, as a consequence, lost out on the SDP. The draft regulations do not in fact provide for a disabled adult previously in receipt of SDP to receive an equivalent top up amount in UC if they are in receipt of the LCWRA element and do not address at all the situation of disabled children.

    The two cases were heard together at the High Court on 23 & 24 January 2019, and the judgment was given on 1 March. The High Court rejected a claim of unlawful discrimination and refused permission to appeal. CPAG will seek leave to appeal direct to the Court of Appeal.

    On 8 February 2018, CPAG issued a claim for permission to apply for judicial review on behalf of two households, each with a person with a disability, challenging the lack of transitional protection or, alternatively, the inability to return to legacy benefits once an award for universal credit has been made, in circumstances where the DWP makes a decision terminating an individual’s award of a legacy benefit, which is subsequently shown to have been a wrong decision and is overturned, and the individual is financially worse off under UC.

  • Bedroom tax where a room is too small to share

    Last updated: February 19, 2019

    Nuneaton and Bedworth Borough Council v Hockley & SSWP 2017 [UKUT] 471 (AAC)

    This case concerns the removal of the spare room subsidy, widely referred to as the ‘bedroom tax’, in cases where a bedroom is too small for two children to share. The bedroom tax came into force on 1 April 2013 and made amendments to the Housing Benefit Regulations 2006 placing restrictions on the amount of housing benefit that can be claimed by tenants in the social sector. Where the number of bedrooms in the household exceeds the number of bedrooms the claimant is entitled to in accordance with the regulations, the housing benefit is reduced by 14% for one ‘spare’ bedroom or 25% for two or more ‘spare’ bedrooms. Regulation B13(5) prescribes who is entitled to a bedroom in a household. It prescribes that two children, regardless of their sex, who are less than 10 years old and two children, regardless of their age, of the same sex are able to share a bedroom.

  • Widowed parents’ allowance and non-married couples

    Last updated: September 7, 2018

    Update: On 30 August, the Supreme Court handed down its judgment that denying bereavement benefits to unmarried, cohabiting partners with children is incompatible with human rights law. 

    Read more about what this means for parents now

  • Right to reside for the self-employed

    Last updated: June 22, 2017

    MH v Secretary of State for Work and Pensions C3/2015/2886

    The issue raised by this case in the Court of Appeal is whether the UK’s Immigration (EEA) Regulations 2006 must be read pursuant to EU law as providing a right to reside in the UK not only to EEA children in education whose parents have been employed persons, but also to those whose parents have been ­self-employed persons.  Regretfully the Court of Appeal has decided that there is no such requirement.