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This bulletin will be distributed bi-weekly.

LCNI Social Security Bulletin

No. 29 -  14th November 2019

Adviser Network Meeting

The next Law Centre NI Adviser Network Meeting will be held in Belfast on Friday 15th November at 11am. Attendance is free and offers expert insights in to social security law and practice. To RSVP, please email admin@lawcentreni.org



Conference Success

Thank you to everyone who helped make the Law Centre NI’s annual social security law and practice conference a great success. For those who missed it, or would like a recap, you can catch some of the highlights on BBC Radio Ulster’s ‘On Your Behalf’ show.



Legal Information Briefing

In Northern Ireland, over £3.5 million in overpayments have been paid since the introduction of universal credit and welfare supplementary payments. The Department of Communities often seek to recover overpayments regardless of fault. But did you know they have the authority to waive recovery?

See our latest legal briefing on overpayments and applying for a discretionary waiver.



Social Security

WASPI high court challenge fails

Pensions make up 44% of the total social security budget in the UK. The question of the legality of changes to the state pension age for women has recently been adjudicated at the High Court in London.

The high court has ruled against the ‘Women Against State Pension Inequality’ campaign’s challenge to equalisation of state pension age. The claimants argued they were discriminated against on the basis of age and sex, and challenged the lack of notice given. The case was dismissed on all grounds. The divisional court (Lord Justice Irwin and Mrs Justice Whipple) concluded:

The court was saddened by the stories contained in the claimants’ evidence. But the court’s role was limited. There was no basis for concluding that the policy choices reflected in the legislation were not open to government. In any event they were approved by parliament. The wider issues raised by the claimants about whether the choices were right or wrong or good or bad were not for the court. They were for members of the public and their elected representatives.


Questions raised around settled status and pre-settled status

The Minister for Disabled People, Justin Tomlinson MP, has answered a written parliamentary question raised around verifying EU nationals’ settled status and pre-settled status.

The question sought clarification about instructions issued to jobcentres about proof of settled status and pre-settled status for EU nationals in relation to benefits entitlement after Brexit. Mr Tomlinson responded:

We have been clear that the rights of EU nationals with settled and pre-settled status who apply for social security benefits after [Brexit] will be protected.

"DWP recognises leave granted under the EU settlement scheme. EU nationals who claim social security benefits can present their notification of settled or pre-settled status in support of their claim. DWP procedures require staff to verify evidence of immigration status through the habitual residence test process. Mechanisms are in place between DWP and the Home Office to verify settled status notifications.

"EU nationals who are granted settled status and are habitually resident in the UK are eligible to access income-related benefits.

"EU nationals who are granted pre-settled status and are exercising an EU qualifying right to reside e.g. worker or self-employed status are eligible to access income-related benefits.

The social security hub at Law Centre NI has already received a high number of queries from clients who should be considered habitually resident and entitled to claim universal credit but whose application has been refused. Advisers should note that universal credit should be able to determine a right to reside without the need to establish settled status in advance of a claim.

It is important to challenge decisions made before a settled status award. Please contact our social security advice line if you encounter this issue (028) 9024 4401: Monday to Friday, 09.30 - 13.00. For help with securing settled status, contact the Stronger Together Network or contact Law Centre NI on (028) 9024 4401.


New Statutory Rules

Universal Credit (Childcare Costs and Minimum Income Floor) (Amendment) Regulations (Northern Ireland) 2019

These regulations:
  • Extend the time claimants have to report childcare costs by one month in order for them to be taken into account in the childcare costs element when calculating an award for universal credit. Previously claimants were required to report payment in the same monthly universal credit period as it was paid but, as of 16th October claimants can now also report in the following assessment period; and
  • Clarifies that all gainfully self-employed claimants who are expected to work and do not benefit from the start up period, are subject to the minimum income floor i.e. they cannot be exempted from the MIF based on average earnings.
Bereavement Support Payment (No.2) Regulations (Northern Ireland) 2019

These regulations are necessary to:
  • Re-enact provision for bereavement support payments in Northern Ireland which would otherwise lapse due to the absence of an Executive; and
  • Require an Assembly resolution to be approved within six months of an Executive forming otherwise they will cease to be in effect.
Security Benefits Up-rating Regulations (Northern Ireland) 2019 / Social Security Benefits Up-rating (No. 2) Order (Northern Ireland) 2019

These statutory rules:
  • Revoke and re-enact previous statutory rules as six months have passed without being approved by an Assembly;
  • Re-enact the altered rates and amounts of some social security benefits and other sums.
Mesothelioma Lump Sum Payments (Conditions and Amounts) (Amendment No.2) Regulations (Northern Ireland) 2019

These regulations:

Revoke and re-enact previous regulations which increased the amounts of lump sums payable to people with diffuse mesothelioma or to their dependants as six months have passed without being approved by an Assembly.


Case Decisions

HMRC v Henrika Dakneviciute (C‑544/18) (19 September 2019)

The Court of Justice for the European Union (CJEU) has ruled that a self-employed EU national who stopped working in the later stage of pregnancy retained her self-employed status as long as she began work again in a ‘reasonable period’ after the birth.

The CJEU had previously ruled in the Saint-Prix case that a woman who gave up work in the late stage of pregnancy, due to physical constraints, should not be deprived from her status as a ‘worker’. The case sought to determine whether a claimant who ceased self-employed activity was also in a position to rely on Saint-Prix to retain her status as a worker, enabling her to claim child benefit. The CJEU ruled that the claimant is able to rely on Saint-Prix to retain the status of being self-employed.

Parkin, R (On the Application Of) v Secretary of State for Work and Pensions [2019] EWHC 2356 (Admin) (19 September 2019)

The high court in London has ruled that the universal credit minimum income floor (MIF) is not unlawful. The MIF is a mechanism by which a gainfully self-employed person who claims universal credit, and has earnings lower than the national minimum wage, has their award calculated at higher earnings.

The claimant argued she was being discriminated against because, if the MIF had not been applied to her as a self-employed worker, on the basis of equivalent earnings, she would have earned more income.She would also have received more income had she been unemployed.

Mrs Justice Elisabeth Laing dismissed the application for judicial review stating that the difference of treatment between self-employed and employed is not manifestly without reason and that the MIF fulfils legitimate policy aims.

The decision is a significant development. However, it is not legally binding in Northern Ireland, where a challenge could still be made.


Universal Credit

Conditionality backed by sanctions ‘not likely’, but ‘not ruled out’

Recent correspondence between the Department for Work and Pensions (DWP) and the Work and Pensions Select Committee shines a light on the government’s approach to ‘conditionality’ and in-work progression. In a letter to the Work and Pensions Select Committee Chair, Frank Field MP, the then Secretary of State for Work and Pensions, Amber Rudd MP stated:

“I do not think conditionality backed by sanctions is likely to be the best means of achieving in-work progression and further testing of this approach is not my priority… Yet, as you know, our randomised control trial tested one version of conditionality with the early in-work cohort, with small but positive findings, and we have retained the powers set out in section 41(5)(a) of the Welfare Reform Act 2012 to deliver further trials in the future which involve imposing conditionality on claimants who earn over a prescribed amount.”


Clear link between universal credit and rise in foodbank use

A report by the Trussell Trust ‘#5WeeksTooLong: why we need to end the wait for Universal Credit’ found that the longer universal credit applies in an area, the higher the need for foodbanks. The research found that, where universal credit has been rolled out for at least a year, foodbank demand is at 30%, rising to 40% after 18 months and reaching as high as 48% in areas where universal credit has been rolled out for at least two years.

The welfare reform mitigations in Northern Ireland provide for a contingency fund to help eligible claimants cope with the five week wait. However, Law Centre NI has raised concerns that just £400,000 of the £7 million fund has been paid to claimants from November 2017 to January 2019 and that the eligibility criteria are too restrictive, concerns that were also raised in the recent Westminster report on ‘Welfare Policy in Northern Ireland’.


Unite report: “universal credit is causing untold misery”

A report by Unite in GB, ‘Universal Credit: Not fit for purpose’ has found that “the experience of universal credit claimants is overwhelmingly bad, and many claimants believe they are not getting the money they are entitled to.
The research was based on:
  • 1,173 responses from people currently on universal credit
  • 554 in receipt of legacy benefits
  • 67 people with friends and family on universal credit
  • 50 who work with people on universal credit
  • 173 others who were concerned about the impact of universal credit including former claimants
The headline finding on respondents’ experience of claiming universal credit showed that 75% found it bad, with only 8% finding it good.

PIP

Report raises “significant concerns” over safety of highly vulnerable people

A new report on government outsourcing by the Institute for Government, ‘Government Outsourcing: What has worked and what needs reform?’ raises “significant concern over government outsourcing decisions about people’s eligibility for services or the safety of highly vulnerable people.” The report specifically highlights the outsourcing of PIP assessments, stating:

“[W]e found significant concern over government outsourcing decisions about people’s eligibility for services or the safety of highly vulnerable people, without proper oversight and the ability to ensure an adequate service.

"The DWP’s outsourcing of assessments for the personal independence payment (PIP) is a good example. PIP is the main benefit to support people who are disabled or have long-term health conditions. It has been gradually rolled out since 2013 to replace the disability living allowance (DLA) and currently covers around 1.6m people. The department makes decisions about whether claimants receive PIP or not, and at what level, on the basis of assessments carried out by two private providers, Atos and Capita. But the performance of the private providers has been mostly poor – and the department has struggled to raise it to a consistently acceptable level.”


Senior President of Tribunals raises “serious question” about quality of primary decision making

In a speech to the Institute of Legal Scholars in England, the Senior President of Tribunals, Sir Ernest Ryder, outlined his concern at the “quality of primary decision making” in PIP, saying:

If you bring an appeal to the Social Security and Child Support Tribunal for a PIP decision, there is a 73% likelihood you will succeed. That raises a serious question about the quality of primary decision making… And these are vulnerable people often in crisis at the point that they come to us. So, if you ask me whether we can do things in a better way for them, the answer is, without doubt, yes we can.

Law Centre NI, alongside Mencap NI, recently conducted research on PIP on behalf of the All Party Group on Learning Disability. The report is due to be presented early next year.


On the frontline

Law Centre NI client achieves positive outcome in case listed for judicial review

Law Centre NI recently secured a positive outcome for a client who has a severe disability. Jeffrey, lost his entitlement to Employment Support Allowance (ESA) following a work capability assessment. When he lodged a mandatory reconsideration with ESA he was misadvised by the Department for Communities that he could claim universal credit and would not be worse off. However, Jeffrey had been in receipt of a severe disability premium (SDP) and so this advice was incorrect, as under universal credit he would be worse off.

Law Centre NI secured leave to pursue judicial review and the case was resolved to Jeffrey’s full satisfaction prior to hearing. He received £1,185.52 to cover the financial loss of SDP and a £2,500 consolatory payment. Further, outstanding advance payment debts of £666 were written off and ongoing transitional payments of £120 per month were awarded, as well as full costs.

We currently have a number of cases before the commissioner and the higher courts on legal issues of public interest. These cases have been referred by our members and other advice sector organisations, and individuals who have contacted our social security advice line. We will keep you further updated as these cases progress.


Help us Strengthen the SDP Gateway

LCNI are interested in cases where a person had a severe disability premium and claimed universal credit in error since 16 January 2019.

Although legislation prevents claims by people with a severe disability premium, we are aware there are claimants who were still able to claim universal credit in error and that the department will not allow them to move back onto their legacy benefit.
Claimants in these circumstances are likely to be worse off.

If you know someone in these circumstances please get in touch.


October’s Adviser Top Tip

Refugee benefit claims can be made without a national insurance number

New guidance from the Department for Work and Pensions has confirmed that benefit claims can be made without a national insurance number. The guidance states:

Your National Insurance Number (NINO) will be on the back of your Biometric Residency Permit (BRP) and looks like this: QQ123456A.

"If there is no NINO on your BRP, you must contact the Home Office immediately.

"You do not need a NINO for your benefits claim to be made but if you do not have a NINO you need to tell DWP at the start of your claim.

DWP will apply for a NINO on your behalf as part of your claim for benefits. You do not need to apply for a NINO yourself.


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