Law Centre NI

Social Security Law and Practice 

Bulletin | Summer 2022

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Case law
NI High Court decides different treatment of Statutory Maternity Pay and Maternity Allowance under Universal Credit rules is lawful
In the matter of an application by ‘RK’ for judicial review [2022] NIQB 29
In April 2022, the High Court in Northern Ireland gave its decision in an application for judicial review by a Law Centre NI client referred to as ‘RK’. RK’s case is about the different way Statutory Maternity Pay and Maternity Allowance are treated when calculating an award of Universal Credit.
Read more
Distinction between on remand and sentenced prisoners in Housing Benefit rules is lawful
Ryan Taylor v. Department for Communities and Department for Work and Pensions [2022] NICA 21
The appellant challenged the lawfulness of Housing Benefit rules which allow for temporary absences from accommodation for up to 52 weeks for imprisonment on remand, but not for imprisonment following sentence. 
Read more
Social Security Commissioner Decisions
Jan - Mar 2022
Personal Independence Payment
A risk of unfairness arises when a subsequent tribunal doesn’t comply with an earlier tribunal’s direction that an identical panel should conclude an appeal hearing.
RH v. Department for Communities (PIP) [2022] NI Com 8
SMCA v. Department for Communities (PIP) [2022] NI Com 3
An oversight of evidence may affect a tribunal’s conclusions about the credibility of a claimant’s case.
JNMcH v. Department for Communities (PIP) [2022] NI Com 4
Employment Support Allowance
The capital value of a half share of a property which the occupier is unwilling to sell, is nil.
PF v. Department for Communities (ESA) [2022] NI Com 5
Ukrainian Assistance Centres
Since April 2022, Law Centre NI's Migration Justice Project team has been present on a daily basis at Ukrainian Assistance Centres across Northern Ireland to provide support and advice to people arriving from Ukraine.

Our team has been providing immediate, face to face advice to Ukrainians on visas and the immigration process. We have also been able to refer people to our immigration, social security and employment colleagues within Law Centre NI for tailored advice and assistance. This holistic approach has been vital for Ukrainians as they try to rebuild their lives in Northern Ireland. It has also allowed us to identify and act on emerging problems, such as labour exploitation and the need to establish pathways to employment for the many skilled Ukrainians arriving in NI.

Liz Griffith from the Migration Justice Project said:

'It is essential that people fleeing Ukraine have access to the correct advice and support organisations. It is a privilege to be part of the support team welcoming the new arrivals at the Ukraine Assistance Centres.'

Law Centre NI has also played a key role in liaising with the Executive Office and other governmental departments to help to ensure a smooth transition for Ukrainians arriving in Northern Ireland from the Republic of Ireland. 

The four Ukrainian Assistance Centres are open 9.30 am and 4.00 pm as follows:

  • Cecil Ward Building, Belfast: Monday and Friday
  • Newry Leisure Centre, Newry: Tuesday
  • Brownlow Community Hub, Craigavon: Wednesday
  • The Braid, Ballymena: Thursday
Read guidance on what to expect at the Ukrainian Assistance Centres here: Information for Ukrainians arriving in Northern Ireland | The Executive Office (
News from our social security team
Recovery of official error benefit overpayments causing unfairness
For some time, Law Centre NI has been highlighting the unfairness to benefit claimants of the Department's recovery of overpayments which are caused by the Department's own error. 
Although claimants facing an overpayment have the option of applying for a Discretionary Waiver, eligibility is limited. Currently, a Discretionary Waiver will only be granted where the claimant would otherwise suffer harm to their health or welfare or severe financial hardship. 

In April 2022, Law Centre NI published a Policy Briefing Paper: Recovery of overpayments arising from 'official error': current problems and recommendations for change.

Our Paper makes three recommendations for change.
  • First, the Department should amend its staff guidance to explicitly state that decision-makers should grant Discretionary Waivers where unfairness has arisen from the way an official error has occurred.
  • Secondly, the Department should take steps to improve awareness of the option of Discretionary Waiver.
  • Thirdly, the Department should improve data collection and regularly publish statistics on the number of official error overpayments.
In late May, we had a constructive meeting with the Department to discuss our recommendations and we will be meeting again at the end of June. We will report on the outcome of our engagement with the Department in due course.

In recent months, Law Centre NI's Welfare Reform Team has successfully obtained Discretionary Waivers for three clients by relying on supportive comments made by the Legally Qualified Member (LQM) of an Appeal Tribunal in its decision notice. 

In one of Law Centre NI's cases, the Tribunal Decision Notice indicated that while overpayment was recoverable in law, it was not in the interests of fairness. The Department was strongly encouraged to waive recovery in the circumstances and, on relaying these comments to the Department, we successfully secured a Discretionary Waiver for our client. 

If you are a social security adviser with a client facing an official error overpayment and you would like further advice and assistance, please contact our Social Security Hub on (028) 90244401.
For several years, Law Centre NI has been campaigning for the extension of bereavement benefits to cohabiting couples with children.
The Supreme Court and the High Court in England and Wales (In the matter of an application by Siobhan McLaughlin for Judicial Review (Northern Ireland) [2018] UKSC 48  and R(Jackson and Simpson) v. Secretary of State for Work and Pensions [2020] EWHC 183 (Admin)) have both held that the Government's policy of excluding unmarried parents from eligibility for bereavement benefits is contrary to human rights law.

On 15 July 2021, the Government announced plans to extend bereavement benefits to surviving cohabiting partners with children who were living with their partner at the time of death. However, the necessary legislation has still not become law and, in June 2022, the Government indicated that it is unable to confirm when the draft Bereavement Benefits Remedial Order will come into force.

In Northern Ireland, the Pensions (NI) Act 2015 provides for Bereavement Support Payment (BSP) to be paid to a surviving spouse or civil partner. The 2015 Act is secondary legislation, which means that under section 6 of the Human Rights Act 1998, it should be disapplied if incompatible with a right under the European Convention on Human Rights.

Taking this and the decisions in McLaughlin and Jackson into account, arguably the Department should already be disapplying the restriction in the 2015 Act, which limits the payment of BSP to a spouse or civil partner, and extending the benefit to unmarried parents in Northern Ireland.

In June 2022, Law Centre NI took the first step in commencing judicial review proceedings against the Department for failing to award our client BSP because she was not married to her partner at the time of death. We will continue to update readers as the case progresses.

For further guidance on advising a claimant who is a surviving cohabiting parent, see Law Centre NI's guide on Bereavement Support Payment and Cohabitees.
Transitional protection for severely disabled UC claimants 
The introduction of Universal Credit saw the erosion of premiums received by severely disabled people under the legacy benefit regime. This has been the subject of several legal challenges over the last few years.

In 2020, the Court of Appeal of England and Wales decided that the Government's failure to compensate claimants who lost the Severe Disability Premium (SDP) on their migration to Universal Credit was unlawful (see AR and SXC, R (On the application of) v. Secretary of State for Work and Pensions [2020] EWCA Civ 37). This led to the introduction of the SDP Gateway and the SDP Transitional element (see the Universal Credit (Transitional Provisions) (Claimants previously entitled to a severe disability premium) (Amendment) Regulations (Northern Ireland) 2021).

In January 2022, the claimants in AR took another case against the Government. This time, they argued that they should also be compensated for losing the Enhanced Disability Premium (EDP). They were joined in their challenge by two other claimants, AB and F, a mother and child, who argued that they should be compensated for the loss of the lower disabled child element of Child Tax Credits (CTC) on their migration to UC.

The High Court of England and Wales found in favour of the claimants. Mr Justice Holgate decided that the Government's failure to compensate claimants who naturally migrated to UC for the loss of EDP and the loss of the lower disabled child element of CTC constituted unlawful discrimination under Article 14 European Convention on Human Rights (see R (on the application of) TP and AR (TP and AR No. 3) [2022] EWHC 123 (Admin)).

The High Court's decision has the potential to increase benefit income for up to 50,000 severely disabled people.

Following the judgment, Law Centre NI wrote to the Department to ask whether it would be issuing new guidance or undertaking a review of cases in Northern Ireland on the basis of the High Court's decision. The Department responded that the Department for Work and Pensions is currently seeking leave to appeal the High Court's decision. 

We will continue to keep our readers updated on the outcome of this case.
Social Security Legislation 
Cost of living support
The UK Government announced a package of cost of living support measures in May 2022. On 15 June 2022, the Social Security (Additional Payments) Bill was introduced.

The Bill provides for additional payments for recipients of means-tested benefits, tax credits and disability benefits in Northern Ireland. Payments will be made automatically and do not require a separate claim. Payments will not affect entitlement to social security benefits or tax credits - either as ‘capital’ or as ‘income’ - and will also not count towards the benefit cap. 

The key features of the Bill are:
  • £650 will be paid in two instalments to eligible recipients of means tested benefits. The first instalment of £326 will be paid in July 2022 to anyone who was in receipt of a means tested benefit during the period 26 April to 25 May 2022. The second instalment will be paid in the autumn. The second qualifying date has not yet been announced, but will not be later than 31 October 2022.
  • Child Tax and Working Tax Credit recipients will also get £650 paid in two instalments. The first instalment will be in autumn 2022. A person will be eligible if they have received a payment, or an annual award of at least £26, of tax credits on any day between 26 April to 25 May 2022. The second instalment will be in the winter and the qualifying day has not yet been announced.
  • A lump sum payment of £150 will be paid to anyone in receipt of a qualifying disability benefit on 25 May 2022. This payment will be made in September. 
In addition to the above, from November 2022, people entitled to the winter fuel payment will receive an additional £300. 

Unfortunately, there is no specific cost of living support for people who receive Carers Allowance, New-Style Jobseeker’s Allowance, New-Style Employment and Support Allowance, Incapacity Benefit or Industrial Injuries Disablement Benefit. 

For further information on Cost of Living Support in Northern Ireland, see Cost of Living support | nidirect.
Extension of the welfare supplementary payment scheme
The Welfare Supplementary Payments (Amendment) Act (NI) 2022 came into force on 28 April 2022.

The Act amends Article 137A of the Welfare Reform (NI) Order 2015 to extend the Welfare Supplementary Payment scheme beyond the 31 March 2020, which was the original end date.

The Welfare Supplementary Payment scheme was introduced to mitigate the effects of the bedroom tax in Northern Ireland. It provides supplementary payments to people who would otherwise have their Universal Credit or Housing Benefit payments reduced because the number of bedrooms in their home exceeds the number of bedrooms to which they are entitled.

The 2022 Act also requires the Department for Communities to monitor the operation of welfare mitigation schemes and to report to the Assembly by 31 March 2025. This report will provide the basis for a future assessment of the continuing need for, or amendments to, the welfare mitigation schemes beyond 31 March 2025.
Security for Support for Mortgage Interest Loans on unregistered land
Support for Mortgage Interest (SMI) provides financial assistance to owner-occupiers who would otherwise be unable to meet their mortgage interest repayments and may face repossession of their home.

Since April 2018, Support for Mortgage Interest has been provided by means of an interest-bearing loan. This loan is charged to the property title so that the Department can recoup the loan if the claimant defaults, if the property is sold or transferred or if the claimant or their partner dies. If there is insufficient equity to repay the loan after sale/transfer/death, the Department writes off any amount that cannot be repaid.

A problem arose in Northern Ireland because the system of land registration is different to Great Britain. In Northern Ireland, there are still properties which are not registered with the Land Registry. These properties are referred to as unregistered land. The process of registering charges for SMI loans against unregistered land is not straightforward and, in some circumstances, cannot be done.

The Support for Mortgage Interest etc (Security for Loans) Act (Northern Ireland) 2022, which came into force on 7 June 2022, simplifies the process. It amends Article 13 of the Welfare Reform and Work (NI) Order 2016 to allow an SMI loan to be charged on property in respect of which the loan is made and it amends Schedule 11 of the Land Registration Act (NI) 1970 to enable such a charge to be registrable in the Statutory Charge Register.

This change will allow the Department to recover loans against all types of property and ensure that loan recipients are treated equally, regardless of whether their land is registered or unregistered. 

The Explanatory and Financial Memorandum to the Bill, as introduced to the NI Assembly, indicates that no charge will be created over any properties until regulations come into force. We will report on the regulations once passed by the NI Assembly.

In June 2022, the UK Government announced that it will introduce changes to Universal Credit regulations to make SMI loans available to people after three months of unemployment, rather than the current period of nine months.

The Government also indicated that it will change rules to incentivise people claiming UC to save for a deposit. Currently, welfare rules taper the amount of UC received if a claimant’s savings exceed £6,000, and it stops entirely when savings exceed £16,000. The UK Government will introduce changes to exempt Lifetime ISA savings from these rules, allowing people to save specifically for a deposit for their first home without impacting their UC payments.
Benefit disregard for local welfare provision, including 'Homes for Ukraine'
The Income-Related Benefits (Local Welfare Provision Disregard) (Amendment) Regulations (NI) 2022 came into force on 4 May 2022.

The Regulations amend existing regulations relating to means tested benefits to include a benefit disregard for local welfare provision payments.

This means that if a claimant receives exceptional or emergency financial support from an NI Department, that support will be disregarded for the purposes of calculating their benefit entitlement.

The disregard applies to payments made under the Homes for Ukraine scheme, which was launched on 14 March 2022. The Homes for Ukraine scheme provides that sponsors who provide accommodation under the scheme can receive a 'thank you' payment of £350 per month for the first 12 months of sponsorship. Under the 2022 Regulations, this payment will be disregarded for the calculation of benefits.
Access to free health care for Ukrainians
The Provision of Health Services to Persons Not Ordinarily Resident (Amendment) Regulations (NI) 2022 came into operation on 12 May 2022.

The 2022 Regulations amend the Provision of Health Services to Persons Not Ordinarily Resident Regulations (NI) 2015 to allow Ukrainian visitors, who are lawfully present in the UK and unable to return home, to access the NHS without charge. The Regulations also provide an exemption from charge in respect of services provided since February 2022.

People who have come to or remain in the UK under one of the routes announced following the Russian invasion - including the Ukraine Family Scheme and Homes for Ukraine Scheme - can use the NIHS without having to pay an Immigration Health Surcharge (IHS).

The 2022 Regulations mean that anyone in the UK via an alternative route, such as an alternative temporary visa route, extension of a visit or seasonal visa or who is in the process of switching visas, and their families, can also avail of free NHS treatment. This ensures equal treatment between the different types of visa holder.
Child Funeral Fund introduced in NI
As reported in our Spring 2022 Bulletin, the Department introduced a Child Funeral Fund (CFF) for Northern Ireland on 1 June 2022. 

The CFF will provide a one-off lump sum payment (currently £3,056) to a person who is financially responsible for the organisation of a funeral of a child up to the age of 18 and stillborn babies born after 24 weeks. Payment is not means tested.

The child's funeral service or ceremony must take place in NI, but the burial or cremation, or the erection of a memorial, can take place elsewhere in the United Kingdom or in the Republic of Ireland. Claims must be made within six months of the date of the funeral.

In June 2022, the Department replaced earlier CFF regulations with the Social Fund (Child Funeral Fund) (No 2) Regulations (NI) 2022.
Expanded list of healthcare professionals who can give fit notes
From 1 July 2022, the range of health care professionals who can give fit notes will be expanded to include registered nurses, occupational therapists, pharmacists and physiotherapists, in addition to doctors.

This change is introduced by the Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) (No.2) Regulations (NI) 2022
Recent Publications
Confused about social security co-ordination rules following Brexit? Our Adviser Practice Guide on Social Security co-ordination rules will help social security advisers navigate this complex area of law.
Our Adviser Practice Guide on Appeals to the Appeal Tribunal for Northern Ireland provides guidance to social security advisers, representing claimants before the Appeal Tribunal.
Part 1 of our Adviser Practice Guide on appealing to the Social Security Commissioner provides guidance to social security advisers on identifying errors of law in Appeal Tribunal Decisions.
Part 2 of our Adviser Practice Guide on appealing to the Social Security Commissioner outlines the procedure that applies to appeals from an Appeal Tribunal.
Our Adviser Practice Guide on How to find legal information signposts social security advisers to sources of social security case law and legislation.

Download the poster to print off and put on your office wall. When you want to access the electronic links to the legal information resources in future, you can scan the QR code to get an online copy. From here, you will have legal information resources at your finger tips.
We always welcome your feedback. Please send comments about our Social Security Law and Practice Bulletin to

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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