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Welcome to Law Centre NI's quarterly Bulletin on Social Security Law and Practice in Northern Ireland.

What's inside...
In our Spring edition, our Director, Ursula O'Hare, shares her reflections on the last extraordinary year, we summarise recent Social Security Commissioner decisions and legislation, and we highlight some of the work of our Legal and Policy teams, including links to our recent publications.

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Reflections from our Director, Ursula O'Hare

The case for properly funded advice and representation services has never been more compelling….
As we mark the first anniversary of lockdown, it is timely to reflect on how the current health emergency and the events of the past year have impacted our work and, most importantly, the lives of those who rely for help on Law Centre NI’s Social Security advice and representation services. 

In all of this, Law Centre’s priority has been, and remains, to support the public and the advice sector in dealing with the unprecedented demands posed by Covid-19.

Set against the backdrop of the continued roll out of Welfare Reform, the delays in processing new benefit applications have been compounded by mounting numbers of people faced with redundancy seeking access to the benefit system for the first time. The suspension of face to face appeal hearings and the unfamiliar and daunting challenge of remote hearings have proved particularly difficult for our clients, many of whom have significant mental ill-health. Additional supports from within Law Centre NI have been essential for those clients in order to progress their appeals while at the same time, seeking to minimise the levels of confusion and stress experienced.

Whilst adapting and developing our services to meet the particular demands of the pandemic, Law Centre NI has also maintained its unique role in pursuing strategic cases in the higher courts in Northern Ireland, aimed at enhancing legal protections for some of the most vulnerable. You will read later in this bulletin that we are continuing with our challenge to the unfair application of the six month terminal illness rule. In the Court of Appeal this year, we also successfully challenged the application of the bereavement support scheme that did not deliver the right support when it was so badly needed.

Even as the restrictions imposed by Covid 19 begin to ease, the case statistics are a stark reminder of  the huge challenge that still lies ahead for our clients and other stakeholders in the justice system. Recent figures from the Department indicate that the backlog of PIP appeals alone is currently in excess of six thousand. The Law Centre’s Welfare Reform Advisers have almost three hundred social security appeals awaiting hearing. We anticipate these figures will continue to grow as it is likely to be some time before the justice system is operating at full capacity once again.

Given all of this, it is clear that the  case for properly funded advice and representation services has never been more compelling. Without such funding, the sector will be unable to provide the vital assistance needed and effective access to justice will suffer as a result. Law Centre NI therefore welcomes (contrary to the earlier indications in the Department’s draft budget for 2021-22) the recent public assurances given by the Minister for Communities that there will be no reduction in funding for advice services in the coming year.
Social Security Commissioner Decisions
Oct - Dec 2020

Click on the links to access case summaries
Personal Independence Payment

Activity 8: Reading and understanding signs, symbols and words            
Department for Communities v. MS (PIP) [2020] NI Com 77 (C11/18-19)
 

Qualifications and experience of health assessor: PIP Regulation 9
KK v. Department for Communities (PIP) [2020] NI Com 79 (C31/20-21)
Employment and Support Allowance
Perception of bias and ESA Regulation 29 
LC v. Department for Communities (ESA) [2020] NI Com 76 (C4/20-21)
Procedure at Appeal Tribunal

Exclusion of post decision evidence
EF v. Department for Communities (PIP) [2020] NI Com 81 (C35/20-21)

Appeal Service Form of Authority
CD v. Department for Communities (PIP) [2020] NI Com 78 (C33/20-21)
Overpayments

When does a claimant fulfil the duty to disclose?
SK v. Department for Communities (ESA) [2020] NI Com 73 (C9/20-21)
JJ v. Department for Communities (PC) [2020] NI Com 70 (C1/16-27)
FMcC v. Department for Communities (PC) [2020] NI Com 18 (C2/16-20)

Admission of improperly obtained evidence
PMcC v. Department for Communities (IS) [2020] NI Com 65 (C2/20-21)
PMcC v. Department for Communities (ESA) [2020] NI Com 66 (C6/20-21)
PMcC v. Department for Communities (ESA) [2020] NI Com 67 (C7/20-21)
Bereavement Benefit
Pension Schemes (NI) Act 1993: Discriminatory impact on women
AM v. Department for Communities (BB) [2020] NI Com 00 (A1/18-19)
Social Security Legislation
Rate Relief (Coronavirus) (Amendment) Regulations (NI) 2020
The Rate Relief (Coronavirus) (Amendment) Regulations (NI) 2020 came into force on 4 January 2021. The Regulations were passed in response to the high level of redundancies anticipated due to the Covid-19 pandemic. The Regulations provide that when assessing earned income for the purpose of calculating a claim for rate relief, holiday pay for holidays not taken because of redundancy and payment in lieu of notice should not be taken into account.
If you made a claim for rate relief on or after 28 March 2020 and your decision did not disregard holiday pay and payment in lieu of notice, you can apply for a revision. You must do so before 4 April 2021. For further information, please contact our advice line on 028 90244401.


Universal Credit (Earned Income) (Amendment) Regulations (NI) 2020 
The Universal Credit (Earned Income) (Amendment) Regulations (NI) 2020 came into force on 16 November 2020. The Regulations amend the Universal Credit (NI) Regulations 2016 by inserting a new Regulation 62 and, in doing so, implement the judgment of the Court of Appeal in Secretary of State v. Johnson and others [2020] EWCA Civ 778. The Regulations allow the Department to reallocate payment of earnings reported via real time information (RTI) to a different UC assessment period. The intention is to ensure that no more than one set of calendar monthly salary payments from a single employer are taken into account in each assessment period. This should address problems experienced by claimants who receive two pay packets in one assessment period, for example because of a bank holiday, which could lead to them not receiving any or less UC in that assessment period. It also ensures that claimants can continue to benefit from any applicable work allowances for that assessment period.

Personal Independence Payment (Amendment) Regulations (NI) 2020
The Personal Independent Payment (Amendment) Regulations (NI) 2020 correct an unintentional gap in Regulation 27 of the Personal Independence Payment Regulations (NI) 2016. Under the 2016 Regulations, a claimant who had reached state pension age could have their award superseded because of a change in circumstances, but not because of new medical evidence. This meant that state pension age claimants with new medical evidence may be entitled to receive a new or increased mobility award, while claimants with a change of circumstances would not. The 2020 Regulations close this gap, meaning that all state pension age claimants are treated equally. The purpose of the change is to ensure that the law reflects the Department's longstanding policy of restricting access to a new or enhanced award of the mobility component of PIP for claimants over state pension age where their award is revised or superseded.

Universal Credit (Transitional Provisions) (Claimants previously entitled to a severe disability premium) (Amendment) Regulations (NI) 2021
The Universal Credit (Transitional Provisions) (Claimants previously entitled to a severe disability premium) (Amendment) Regulations (NI) 2021 came into force on 27 January 2021 and amend Schedule 2 of the Universal Credit (Managed Migration and Miscellaneous Amendments) Regulations (NI) 2019. From 27 January 2021, the gateway, which prevented people in receipt of the Severe Disability Premium (SDP) in legacy benefits from making a new claim to UC, is being removed. From now on, people within this group will be able to make a claim for UC. However, because the SDP is not replicated in the UC scheme, previous SDP claimants will now be eligible to be considered for a transitional SDP element. In a claimant's first UC assessment period, the transitional SDP element is the amount specified in paragraph 5 of Schedule 2 to the Regulations. However, in subsequent assessment periods, the transitional SDP element will be treated as if it were a transitional element awarded to a claimant who had moved to UC by managed migration. This means that after the first assessment period the amount paid may decrease if other elements increase or may stop completely if there is a change in the claimant's circumstances.
Legal Team Update
Law Centre NI pursues case to Court of Justice of the European Union (CJEU)
The case challenges the Department's refusal of benefit entitlement to claimants awarded pre settled status under the EU settlement scheme. Law Centre NI is arguing that the Department's position that a pre-settled status claimant must also be a 'qualified person' (i.e. a worker, retained worker, family member of a worker etc) to be eligible for certain benefits, is discriminatory on the ground of nationality under Article 18 of the Treaty on the Functioning of the European Union. The case was referred from the Tribunal to the CJEU for preliminary ruling in December 2020 and is listed for hearing on 4 May 2021.
If Law Centre NI is successful in its challenge, it could have a positive impact on benefit claimants with pre-settled status across the UK. This issue was recently considered by the Court of Appeal in England and Wales in the case of Fratila v. Secretary of State for Work and Pensions [2020] EWCA 1741. The Court decided that the Government acted unlawfully in barring EU citizens from relying on ‘pre-settled status’ under the EU Settlement Scheme to access Universal Credit. The Secretary of State has now been granted leave to appeal to the Supreme Court, with the hearing listed for 18 and 19 May 2021. Pending the Supreme Court decision, the Department for Work and Pensions has issued guidance to Departmental decision makers, which requires a stay of decisions on benefit entitlement, in certain circumstances, to pre-settled status claimants who claimed before 31 December 2020. 

Differential treatment between Maternity Allowance and Statutory Maternity Pay claimants in calculation of UC
Law Centre NI is representing a Maternity Allowance claimant in her application for judicial review before the High Court in Northern Ireland. Law Centre NI is challenging the Department's refusal to award the claimant Universal Credit and a Sure Start Maternity Grant on the basis that she was in receipt of Maternity Allowance. The Department's calculation of UC, under the Universal Credit (NI) Regulations 2016, treats Maternity Allowance differently to Statutory Maternity Pay. Law Centre NI is arguing that it is unfair and discriminatory and that it breaches the claimant's Article 14 ECHR (prohibition on discrimination) rights when read with Article 8 ECHR (right to a private and family life) and Article 1, Protocol 1 ECHR (protection of property). The case was heard in early March and a decision is pending.

Department appeals High Court's decision against terminal illness policy
As reported in our Winter Bulletin, in 2020 Law Centre NI represented Ms. Lorraine Cox in her successful application for judicial review against the Department's terminal illness policy (In the matter of an application by Lorraine Cox for leave to apply for Judicial Review [2020] NIQB 53). On 22 October 2020, the High Court awarded Ms.Cox £5,000 damages for the ‘upset, distress, annoyance, inconvenience, worry and humiliation’ caused as a result of unlawful discrimination due to the Department's policy. You can read Law Centre NI’s press release on the court’s decision here.
The Department appealed the Cox decision to the Court of Appeal in March 2021. We will update readers on the outcome of the appeal in our Summer Bulletin. 

PIP claims - who decides?
Concern and questions have been raised in the past about a lack of clarity in practice around the respective roles of Capita and Departmental decision makers. Our Social Security Advisers have become aware of a number of cases where this is potentially an issue.
When a PIP claimant makes a claim they usually undergo a health assessment with a Capita health assessor. The health assessor's report is sent to the Department and it is for a Departmental decision maker to determine how many points to award the claimant and whether they are entitled to PIP. Our Social Security Advisers have identified a number of cases in which it appears that Departmental decision makers have not fully scrutinised Capita's input on the assessment of new evidence in PIP claims. We are concerned that Departmental decision makers may not always be exercising their full decision-making capacity. 
If you are aware of a PIP case in which you query the Department's scrutiny of Capita's advice in the assessment of further evidence, we would like to hear from you. Please speak to one of our Social Security Advisers by calling our advice line on 028 90244401.
Policy Team Update
Cliff Edge Coalition concern over proposed Department funding cuts
The New Decade, New Approach agreement gave a clear and unambiguous commitment to fully extending the existing welfare mitigations package and to conducting a review to assess ways to strengthen the package to address new and emerging pressures. The Minister for Communities has restated her commitment to introduce new legislation to extend welfare mitigations beyond March 2021. This policy approach has become all the more necessary following the Covid-19 pandemic. The Cliff Edge Coalition, however, is very concerned that the draft budget as outlined in the Equality Impact Assessment on the Department for Communities' draft budget for 2021-22 (see Law Centre NI's response to the draft budget here) did not allow funding for the necessary strengthening of the mitigation package. The Coalition has responded to the consultation and asked policymakers to prioritise social security when finalising the budget.

Budget 2021 - extension of the £20 UC uplift
We welcome the Government's six-month extension of the £20 per week uplift for Universal Credit claimants announced in the Budget on 3 March 2021 and made law in the Universal Credit (Extension of Coronavirus Measures) Regulations (NI) 2021. We are concerned, however, that in six months time UC claimants will face another cliff edge. The loss of the £20 per week uplift will also coincide with the ending of the furlough scheme. We are concerned about the impact of withdrawing these two vital supports at the same time. We fear this move has the potential to pull more people into poverty. 

UC:Us Roundtable
In 2020, Law Centre NI hosted a virtual roundtable meeting with Departmental officials and elected representatives to discuss recommendations for the future of Universal Credit in Northern Ireland. The discussion drew on the findings of a research project called UC:Us, which surveys the experiences of UC claimants in Belfast and makes recommendations for change. In February 2021, our roundtable met again to reflect on an extraordinary twelve months, which has seen more people than ever turn to UC for vital support. 

Overpayments and discretionary waiver
As reported in our Winter 2020 Bulletin, the law on the overpayment of benefits for Universal Credit and Welfare Supplementary Payments has changed. All overpayments are now recoverable even if they result from an error by the Department. Law Centre NI has been approached by several claimants impacted by this change. In response, we wrote to the Department, requesting:
  • That the NI Direct website is amended to highlight that a discretionary waiver might be available to a claimant before directing them to a debt management service. The information currently posted on the NI Direct website implies that repayments are compulsory, which is not necessarily the case.
  • That data collection is improved to record the number of cases where UC overpayments arise as a result of official error. Such figures would enable the Department and stakeholders to better understand the extent of the issue and would assist in the development of measures to address overpayments.
We are awaiting a response from the Department and will update readers in due course.

The Cliff Edge Coalition shortlisted for an award!
The Cliff Edge Coalition was shortlisted for the Chartered Institute for Housing Award Working in Partnership Award. This is a reflection of how successful the Coalition has been as a collaborative initiative. It is a credit to all organisations who form part of the campaign. 
Cohabiting couples denied bereavement benefits

Bereaved partners, who were not married or in a civil partnership when their partner died and who have dependent children, are being denied access to bereavement benefits. This is despite rulings by the UK Supreme Court in In the matter of an application by Siobhan McLaughlin for Judicial Review (Northern Ireland) [2018] UKSC 48 and the High Court in England and Wales in R(Jackson and Simpson) v. Secretary of State for Work and Pensions [2020] EWHC 183 (Admin) that this position is incompatible with human rights law. While the Westminster and Stormont governments have acknowledged the incompatibility, they have given no indication of when legislation will be amended. 

If you or your client is the surviving partner of a cohabiting couple with children, our advice is to submit a claim for Bereavement Support Payment (BSP), even though it will be refused by the Department. This will protect a claim for back payment if and when the legislation is changed. When the claim is refused, the claimant should also seek a mandatory reconsideration and appeal of the decision. Law Centre NI can assist by providing a supporting statement that the Department's refusal is discriminatory and in contravention of the claimant's human rights.

For further guidance on this issue, Law Centre NI has produced a detailed briefing document for social security advisers.

Law Centre NI would also like to hear from bereaved partners without children, as we believe that there is a strong case for extending BSP to the surviving partners of all cohabiting couples. Please contact our advice line on 028 90244401 for more information. 

Recent Publications
Changes to Social Security in Northern Ireland in Response to Coronavirus (COVID-19) 
The pandemic has seen a host of changes to social security law and practice. In Law Centre NI's latest update, we consider the changes to each social security benefit since the beginning of the pandemic.
Bereavement Support Payment and Cohabitees
A detailed briefing document for social security advisers on cohabiting couples and bereavement benefits.
Applying to the Home Office to lift the No Recourse to Public Funds condition
Our Migration Justice Project has published a briefing document on applying to lift the no recourse to public funds condition. 
We always welcome your feedback. Please send comments about our Social Security Law and Practice Bulletin to margaret.carson@lawcentreni.org.
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Disclaimer: Although every effort is made to ensure the information in Law Centre (NI) publications is accurate, we cannot be held liable for any inaccuracies and their consequences. The information should not be treated as a complete and authoritative statement of the law. Law Centre (NI) only operates within Northern Ireland and the information in this document is only relevant to Northern Ireland law. When reading Law Centre documents, please pay attention to their date of publication as legislation may have changed since they were published.

Law Centre (NI) has included links to external websites throughout this Bulletin. Law Centre (NI) cannot take responsibility for pages maintained by external providers and bears no responsibility for the accuracy or legality of the content of the external website or subsequent links from an external website.
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