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Law Centre NI

Social Security Law and Practice 

Bulletin | Autumn 2021
We won!
In July 2021, we were awarded a Legal Aid Lawyer of the Year Award in the Regional Legal Aid Firm/Not-for-Profit Agency category! 
We are delighted and honoured to have received this award. Thanks to everyone who recognises and supports our work, and to our excellent Law Centre NI staff for their dedication to the cause of social justice! Read our press release here.
What's inside...
  • A summary of recent cases including:
    • CG v. Department for Communities - our case before the Court of Justice of the European Union.
    • The recent Supreme Court decision on the two child limit.
    • The Northern Ireland Court of Appeal's decision on the terminal illness rules.
    • Northern Ireland Social Security Commissioner decisions.
  • The latest Northern Ireland Social Security legislation and guidance.
  • Our policy and campaigning work.
  • An update on our work as a member of the Department for Communities Trusted Partner Forum.
  • Our recent publications.
  • Training at Law Centre NI.
To join our mailing list, click here. To access past editions of our Social Security Law and Practice Bulletin, click here.
Case law
Court of Justice of the European Union highlights importance of EU Charter of Fundamental Rights for pre-settled EU nationals.

CG v. Department for Communities in Northern Ireland (Case C-709/20)
On 15 July 2021, the Court of Justice of the European Union (CJEU) gave judgment in CG v. Department for Communities in Northern Ireland (Case C-709/20). Law Centre NI represented CG. Read our case note of the CJEU's decision here.
Read more
Supreme Court decides two child limit does not breach human rights law.

R (on the application of SC, CB and 8 children) v. Secretary of State for Work and Pensions and others [2021] UKSC 26
On 9 July 2021, the Supreme Court delivered a unanimous judgment in the case of R(on the application of SC, CB and 8 children v. Secretary of State for Work and Pensions [2021] UKSC 26. The case concerns limits to the payment of Child Tax Credits known as the ‘two child limit’. Read our case note of the Supreme Court's decision here.
Read more
NI Court of Appeal upholds terminal illness rules.

Department for Communities v. Lorraine Cox [2021] NICA
On 3 August 2021, the Court of Appeal in Northern Ireland gave judgment in the case of Department for Communities v. Lorraine Cox [2021] NICA. This case concerns the Special Rules on Terminal Illness (SRTI) which apply to claims for Personal Independence Payment (PIP) and Universal Credit (UC). Read our case note of the Court of Appeal's decision here.
Read more
Social Security Commissioner Decisions
Apr - Jun 2021
Personal Independence Payment

When considering PIP Activity 9c, tribunals should apply the wider definition of social support adopted by the Supreme Court in SSWP v. MM [2016] UKSC 34.
GM v. Department for Communities (PIP) [2021] NI Com 26 (C4/21-22)
 
Appeal Tribunal procedure
How should a tribunal exercise its discretion to proceed in a claimant's absence?
DJS v. Department for Communities (PIP) [2021] NI Com 22 (C2/21-22)
 
Where an appointee acts on behalf of a claimant, the Department must provide evidence of the appointment in its submission to the tribunal.
DO'S v. Department for Communities (PIP) [2021] NI Com 23 (C3/21-22)
 
Error of law due to inadequacy of reasons
If a tribunal identifies the need for an aid or appliance, its statement of reasons should indicate what sort of aid or appliance it had in mind.
FMcA v. Department for Communities (PIP) [2021] NI Com 17 (C24/20-21)
 
Social Security Legislation and Guidance
Deduction of court fines from Universal Credit
The Justice Act (Northern Ireland) 2016 (Relevant Benefits) Order (Northern Ireland) 2021 adds Universal Credit to the list of benefits from which deductions may be made for the payment of fines and other financial penalties under Part 1 of the Justice Act (NI) 2016

In force from 11 August 2021, the Social Security (Fines) (Deductions from Benefits) Regulations (Northern Ireland) 2021 ('the 2021 Regulations) regulate how the deductions will be made. 

Where the Department for Communities receives an application from a court or collections officer, in respect of an offender who is entitled to UC, the Department may deduct a sum from that benefit which is equal to 5% of the standard allowance or £5, whichever is the greater amount.

The 2021 Regulations provide for deductions to be made in respect of one application at a time, establish the circumstances in which deductions should cease and provide that the payment of deductions by the Department to the court shall be made at intervals of 13 weeks.

Re-introduction of the self-employment minimum income floor
The Universal Credit (Coronavirus) (Restoration of the Minimum Income Floor) Regulations (Northern Ireland) 2021 outline the steps the Department will take to manage the re-introduction of the gainful self-employment test, the minimum income floor (MIF) and start up periods from 31 July 2021 until 31 July 2022 for self-employed claimants. The Regulations are in force from 31 July 2021.

The Regulations provide for the further extension, until 31 July 2022, of three of the measures in regulation 2 of the Social Security (Coronavirus) (Further Measures) Regulations (Northern Ireland) 2020 (S.R. 2020 No. 53). The measures allow the Department to still reduce the MIF in more limited circumstances, delay determining when a claimant is in gainful self-employment and ease conditionality for self-employed claimants. 

For claimants who were in gainful self-employment on 13 March 2020 when the MIF suspension came into operation, the Department will restore the MIF in the next assessment period. If the claimant was in a 12 month start-up period on 13 March 2020, the MIF will be restored once the balance of the period remaining on that date has expired, but only after determining that the claimant continues to be in gainful self-employment.

The Department may still apply the MIF easement in certain limited circumstances if the claimant’s business remains affected by the pandemic.

Discretionary criteria for the award of a blue badge
The Department for Infrastructure recently published its Assessment Guidance Notes for the discretionary award of a blue badge in cases that do not come within the automatic entitlement rules.

The Department was required to publish the guidance following a decision of the General Regulatory Chamber in an appeal of the Department of Infrastructure's refusal of a Freedom of Information request by Sean O'Farrell of Advice North West.

When the Blue Badge Department refused Sean's request back in 2019, he did not give up and pursued the matter to the Information Commissioner's Office and the General Regulatory Chamber. As a result of Sean's tenacity, social security advisers now know the criteria used by the Department and can advise their clients accordingly.

Thanks to Sean for highlighting this to us, so that we can bring it to the attention of all our readers. If you have any success stories like this, we would love to hear about them.

Universal Credit claims withdrawn due to official error can be linked to subsequent claims and lead to a back payment
Law Centre NI recently acted on behalf of a claimant who was wrongly advised by the Jobs and Benefits Office to withdraw their application for Universal Credit. The consequence of this was that the claimant's income decreased by more than £200 per month and they lost entitlement to rate relief. 

Following a benefit entitlement check by a social security adviser, the claimant successfully claimed UC and rate relief. The social security adviser asked Law Centre NI to assist in making a formal complaint to the Department about the advice given by the Jobs and Benefits Office. We worked alongside the social security adviser to draft a letter of complaint to highlight the Jobs and Benefits Office's error and the significant financial impact of this on the claimant. We called for the claimant to be adequately compensated.

The Department upheld the complaint, agreeing to link the claimant's earlier claim for UC with their later claim, and awarding the claimant 13 months backdated payment of just under £3,000. The Department advised that it was able to link the two claims because on the balance of probabilities the evidence indicated that the claimant did receive incorrect or misleading advice from the Jobs and Benefits Office, and this amounted to official error. 
Our policy and campaigning work
The Cliff Edge Coalition
On 17 June 2021, the Minister for Communities briefed the Committee for Communities on the three pieces of legislation required to extend the welfare mitigations and close the bedroom tax and benefit cap loopholes. Unfortunately, while the required legislation has been drafted, it was not tabled before the summer recess.

The Cliff Edge Coalition has two main concerns about the ongoing delay in passing the required legislation. First, until the legislation is passed, the welfare mitigation package remains unsecured. Secondly, additional funds allocated to the mitigations package, in anticipation of the loopholes being closed, remain unspent.

Over the last six months we have consistently engaged with Executive Ministers and MLAs to ask for the drafted legislation to be tabled urgently. This summer, Cliff Edge Coalition members wrote to all Executive Ministers to express concern at the ongoing delay and to emphasise the importance of the draft legislation. For more information, and a copy of the letter, see Law Centre NI's press release here.
Health and Disability Green Paper
In July 2021, the UK Government published its Health and Disability Green Paper. The Green Paper explores how the welfare system can better meet the needs of disabled people and people with health conditions. It focuses in particular on ESA, UC and PIP, and asks whether these benefits provide the right support, how the current service and design of the benefits can be improved and how it can help disabled people and those with health conditions to secure or continue employment.
 
While the Green Paper relates to Great Britain only, the principle of parity means that the Department for Communities in Northern Ireland and the Department for Work and Pensions in Great Britain maintain similar welfare systems. It is therefore important that the views of people in Northern Ireland are heard.

We encourage anyone with experience of the health and disability benefits system to respond to the UK Government's consultation. The consultation is available here and is open until 11 October 2021
UC:Us Guide to Universal Credit

UC:Us has published an online guide to Universal Credit. The UC:Us Guide to Universal Credit has been produced by some of the first people to move onto Universal Credit in Northern Ireland, working in partnership with researchers from the University of York and Ulster University, and social security experts from Law Centre NI and Housing Rights NI.

Unveiled just in time for the end of the coronavirus jobs retention scheme, which is likely to bring a new set of people into contact with Universal Credit for the first time, the group behind the Guide hopes it will help others avoid some of the problems they encountered when moving onto the benefit. 

Speaking about the launch of the Guide in September 2021, UC:Us member, Caroline, shared some words of encouragement for anyone trying to navigate the system:

'Being part of the development of this Guide has been hugely important. It has not been designed by academics, it has been designed by US, the Uc:Us participants – with lived experiences of many areas of the benefit system.  I hope this guide supports others to navigate a system that can at times feel overwhelming and scary, but you have got this. You will get there, we have. Yes it has not been easy at times but knowing we are not on our own gets us through and there is always light at the end of every tunnel.  Speak to your work coach, let them know your fears and worries, ask for help and assistance that is what they are there for, alongside this fabulous Guide of course.'

'Keep the Lifeline' campaign
In October 2021, six million low-income families currently relying on Universal Credit or Working Tax Credit face an overnight cut to their incomes of £20 a week (£1,040 a year).

If the proposed cut goes ahead, it will represent the biggest overnight cut to social security since the beginning of the modern welfare state. Many concerned organisations and individuals are urging the Government not to go ahead with the cut and to extend the uplift to those receiving ‘legacy benefits’ such as ESA, JSA and Income Support.

The 'Keep The Lifeline' campaign is asking recipients of Universal Credit and legacy benefits to write to their MPs to ask them to press the Government to cancel the cut. Law Centre NI encourages everyone to promote the 'Keep the Lifeline' campaign, to urge benefit claimants to write to the their MPs and to highlight the campaign on social media. Every email and tweet helps! 
Discretionary support review
In our Summer edition, we reported on the Department's appointment of an expert panel, including Law Centre NI's Director, Ursula O'Hare, to undertake a review of Discretionary Support Payments
The purpose of the review is to establish if Discretionary Support is delivering for the people who need it most. In July and August 2021, the panel commissioned a survey of experiences of Discretionary Support. The Discretionary Support Review website indicates recommendations for improvement will be made to the Minister for Communities in October 2021.

The Office of the Discretionary Support Commissioner (ODSC) recently published his report for the period April 2020 to March 2021. During that time, the Department dealt with more than 115,000 claims for Discretionary Support. Of those, only 2,597 were subject to review by the Department and only 42 of those were reviewed by ODSC Inspectors.
Bereavement Support update
For several years, Law Centre NI has been campaigning for the extension of bereavement benefits to cohabiting couples with children.

In our Summer Bulletin, we referred to the two key decisions of 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) which held that the Government's current policy of excluding unmarried parents from eligibility for bereavement benefits is contrary to human rights law, and we called for urgent reform.

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. Under the Government's current proposals, the change to the law will apply retrospectively from 30 August 2018 (the date of the Supreme Court's decision in the Siobhan McLaughlin case) and backdated payments will be made as a lump sum.

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.
Continuing entitlements to social security benefits when extending immigration status
Law Centre NI continues to provide immigration advice to Syrian refugees who came to Northern Ireland through the Vulnerable Persons Resettlement Scheme.

On arrival to the UK, Syrian families were granted five years refugee status in the form of Limited Leave to Remain. The families are now in the process of applying for Indefinite Leave to Remain (ILR).
 
As long as a refugee applies for ILR before their existing leave expires, then all their rights and entitlements continue - this includes eligibility to social security benefits. The relevant provision is section 3C of the Immigration Act 1971, which temporarily extends an applicant’s leave for the period that their application is under consideration.
 
Unfortunately, a number of Syrian refugees experienced disruption to their social security benefits while their ILR applications were pending. Law Centre NI worked with the Department, which oversees the operation of the Syrian resettlement scheme, to ensure the restoration of social security benefits for the families and to encourage an ongoing practice which ensures that future groups of Syrian, and other, refugees do not experience disruption to benefits pending ILR application. 
Department for Communities Trusted Partner Forum
Law Centre NI is a member of the Department's Trusted Partner Forum. The Forum is an opportunity for us to raise concerns with the Department about the social security system in Northern Ireland. At our September 2021 meeting, we discussed the following with the Department's representatives:

Non-repayable grants for childcare costs
As reported in our Summer 2021 Bulletin, from October 2021, the Department will be providing grants of up to £1,500 for upfront childcare costs. The grants will be administered as part of the Adviser Discretion Fund and will be available to those on a qualifying benefit who are transitioning from benefits to work.

Our discussions with the Department revealed that claimants who have been granted pre-settled status under the EU Settlement Scheme will be ineligible for the childcare cost grants if they have jobseeker status. Law Centre NI is pursuing this issue with the Department to see how claimants with pre-settled status can be supported with childcare costs.

See our case note on Department for Communities v. CG to learn more about the difficult financial position of pre-settled EU nationals and their families. 

Two payments in one UC assessment period 
In our Spring 2021 Bulletin, we reported on the Universal Credit (Earned Income) (Amendment) Regulations (NI) 2020 which 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.

The Department has confirmed that computer software is now in place to help identify claimants who receive two payments within an assessment period. The Department advises that while the software is being trialled, claimants may still need to notify the Department via their online journal if payments are not reallocated automatically.  

Overpayments and Discretionary Waiver
As reported in our Winter 2020 Bulletin, Law Centre NI has been investigating the recovery of overpayments of Universal Credit and Welfare Supplementary Payment, particularly in cases of official error. Law Centre NI is continuing to press the Department to provide statistics on the proportion of overpayment cases which result from official error.

Law Centre NI is also concerned about the extent to which claimants know they can request a Discretionary Waiver of the overpayment. In October 2019, we published a Legal Information Briefing on social security overpayments and discretionary waiver.

At the September Forum, the Department confirmed that NIDirect has now been updated to advise claimants of the option of Discretionary Waiver. However, there are, as yet, no plans to inform claimants of the option of Discretionary Waiver in their overpayment notification letter.

Support for Mortgage Interest loan arrears
Law Centre NI's social security team recently assisted a claimant to recover arrears of a Support for Mortgage Interest (SMI) loan from the Department. The arrears arose because the Department incorrectly interpreted the Loans for Mortgage Interest Regulations (NI) 2017 in dealing with the claimant's case.

Under the 2017 regulations, even if a claimant is no longer entitled to receive a means tested benefit because their income exceeds their applicable amount, they should continue to be 'treated as entitled' to the relevant benefit for the purpose of SMI as long as their income is less than their applicable amount and the loan repayment added together.

This could impact on those who have transferred from a legacy benefit to UC. If the claimant's entitlement to SMI continues, they should not have a waiting period applied.

The Department is now intending to review all cases of SMI to identify if corrections are required and arrears owed.

Tax Credit claims by frontier workers
Finally, the Department confirmed that there is a system in place to allow claimants living in the Republic of Ireland and working in Northern Ireland to claim Tax Credits.

Claimants should contact the Universal Credit service centre, where staff will ensure a seamless handover to the operational control centre of HMRC to enable a claim. If you are aware of clients who have experienced difficulty with the handover to HMRC, please contact our social security team on (028) 90244401 or at benefitsadvice@lawcentreni.org

See Law Centre NI's guide on the Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020 for further information on frontier workers and Brexit.
Recent Publications
Part 1 of our Adviser Practice Guide on appealing to the Social Security Commissioner provides guidance to Social Security Advisors 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.
 
Training 
OCN Level 3 Certificate in Generalist Advice - online
This nationally accredited qualification is aimed at individuals who wish to develop skills in the area of generalist advice and will focus on applied learning using case studies and active learning exercises. For more information, follow this link: Online Certificate in Generalist Advice.

OCN Level 4 Tribunal Representation - online
This course provides a detailed understanding of the PIP decision and appeals process and includes top tips from the Law Centre NI legal and advice teams. Advisers will also have the opportunity to participate in mock tribunal hearings. Next cohort begins on 13 October 2021. For more information, follow this link: OCN Level 4 in Tribunal Representation.

Introductory training on Benefits, Personal Independence Payment and Universal Credit - online
This series of courses is the ideal starting point for anyone working with clients impacted by the social security benefits system. It is also a useful introduction to benefits for non-benefits advisers. For more information, follow this link: Introductory training for those working with clients impacted by the social security system. 

Coming soon....

OCN NI Level 2 Certificate in Social Security for Support Workers - online
Beginning in November 2021. See Law Centre NI for details.


For details on costs and bookings, please contact our training team at training@lawcentreni.org  | 028 9024 4401.

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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