|
Law Centre NI
Social Security Law and Practice
Bulletin | Winter 2021-22
|
|
|
|
Happy new year from everyone at Law Centre NI! We're looking forward to another year of using law to make a real difference to people's lives.
What's inside...
- A summary of recent cases including:
- The Supreme Court's decision in Fratila and another v. Secretary of State for Work and Pensions [2021] UKSC 53.
- Decisions of the Northern Ireland Social Security Commissioner from July to September 2021.
- The latest Northern Ireland Social Security legislation.
- News from our Social Security team.
- Our recent publications.
- Training at Law Centre NI.
It's one year since we started publishing our quarterly Social Security Law and Practice Bulletin. We would love to hear your views about our Bulletin and the topics you would like us to cover in future editions. If you would like to share your views, please take the following 5 minute survey: Readers Survey
To join our mailing list, click here. To access past editions of our Social Security Law and Practice Bulletin, click here. |
|
Fratila and another v. Secretary of State for Work and Pensions [2021] UKSC 53
The position of EU migrants living in the UK before Brexit, has received considerable scrutiny since the end of the Brexit transition period. One area of contention is the entitlement of EU migrants, awarded pre-settled status under the EU Settlement Scheme, to Universal Credit.
In our Autumn edition, we reported on the Court of Justice of the European Union's (CJEU) decision in CG v. Department for Communities in Northern Ireland (C-709/20). Law Centre NI represented CG, an EU migrant with pre-settled status, who was refused UC despite living in destitution with two young children. In December 2021, the Supreme Court gave its decision in Fratila and another v. Secretary of State for Work and Pensions [2021] UKSC 53. Fratila also concerns the eligibility of EU citizens with pre-settled status to Universal Credit and sees the Supreme Court applying the CJEU's decision in CG.
In response to several queries from Social Security Advisers, Law Centre NI has drafted the following case note which outlines the practical implications of CG and Fratila.
|
|
Social Security Commissioner Decisions
Jul - Sep 2021
|
|
|
|
Invitation to health assessment
An invitation to a health assessment must use language of a clear and unambiguous mandatory requirement to attend.
IG-C v. Department for Communities (ESA) [2021] NI Com 39
AO'G v. Department for Communities (PIP) [2021] NI Com 32
|
|
|
Social Security Legislation
|
|
|
Welfare Supplementary Payments (Amendment) Bill
In December 2021, the Minister for Communities introduced the Welfare Supplementary Payments (Amendment) Bill to the NI Assembly. The Bill extends the Welfare Supplementary Payment scheme, which mitigates the impact of the bedroom tax in Northern Ireland, to 31 March 2025. The Bill also requires the Department for Communities to conduct a review and to report on Welfare Supplementary Schemes to inform decisions on further extension beyond 31 March 2025.
An Advisory Panel, led by former Chief Commissioner of the NI Human Rights Commission, Les Allamby, has been appointed to complete a comprehensive review of existing welfare mitigation measures and to consider a future mitigation package. Law Centre NI has engaged with the Advisory Panel as a key stakeholder in the field of social security law and policy. You can read the Advisory Panel's terms of reference here. The Advisory Panel's final report is expected in February 2022.
|
|
|
Terminal illness bill
In January 2022, the Social Security (Terminal Illness) Bill passed the final stage to becoming law. The Bill will change the law on access to benefits for terminally ill people by extending the life expectancy criteria from six months to 12 months. The law will take effect in April 2022.
Last year, Law Centre NI brought a case on behalf of a young mother, Lorraine Cox. Lorraine suffers from a terminal illness, but could not get fast-track support from the social security system because she did not satisfy the six month life expectancy criteria. Read our case note on Lorraine's case here.
The new law will make the benefits system more accessible to people in Lorraine's position. However, we hope that it will merely be a stepping stone to further reform. With our partners, Marie Curie and the MND Association, we will continue to campaign for a review of a range of options, including the Scottish model which is based on clinical judgment of life expectancy.
|
|
Upfront childcare costs - extension to the Adviser Discretion Fund
In October 2021, the Department extended the Adviser Discretion Fund (ADF) to provide a non-repayable grant of up to £1,500 (within a 12 month period) to claimants of certain benefits. One of the Department's reasons for the extension is to provide parents with help to meet upfront childcare costs where such costs pose a barrier to moving into work, recommencing employment or significantly increasing their hours.
The Universal Credit (Childcare Costs) (Amendment) Regulations (NI) 2021, introduced in September 2021, ensure that payment for childcare costs under the Adviser Discretion Fund is included in a claimant's account as if the claimant paid the costs themselves. This means that the ADF payment will be reflected in the childcare costs element of their UC award and should help claimants meet future childcare payments before reclaiming the costs from UC.
For further information, Employers for Childcare has produced a useful guide entitled Adviser Discretion Fund - Help with upfront childcare costs.
|
|
Further limitations on disabled students' access to UC
December 2021 saw a further limitation on the ability of disabled students to claim Universal Credit.
The Universal Credit (Exceptions to the requirement not to be receiving education) (Amendment) Regulations (NI) 2021 amend Regulation 14 of the Universal Credit Regulations (NI) 2016. The amendment means that a person entitled to disability benefits must have been determined to have Limited Capability for Work before starting a course of education to be eligible for Universal Credit.
Before the amendment, disabled students could 'workaround' the Regulation 14 limitation by claiming Employment Support Allowance, being referred for a Work Capability Assessment, and when they are determined to have Limited Capability for Work, applying for Universal Credit.
From December 2021, this route will be closed to disabled students.
The Explanatory Note to the Regulations states that the 'workaround' is contrary to the policy intent of Regulation 14 of the UC Regulations. It also highlights the alternative financial support made available to disabled students in the form of loans and grants from the Disabled Students Allowance, Hardship Funds of universities and colleges, and Student Finance Northern Ireland.
The 2021 Regulations follow on from the The Universal Credit (Exceptions to the Requirement not to be receiving Education) (Amendment) Regulations (Northern Ireland) 2020 which came into force in August 2020. The GB equivalent of the 2020 Regulations are currently subject to judicial review, in which the applicant argues that the regulations are discriminatory under the European Convention on Human Rights.
Law Centre NI is exploring a challenge to the law on disabled students' access to Universal Credit. We would like to hear from you if you or your client has been affected by the 2020 or 2021 Regulations. Contact our social security legal team on (028) 90 244401 or benefitsadvice@lawcentreni.org.
|
|
Welfare assistance for Afghan refugees
In response to the fall of the Afghan government in August 2021 and the resettlement of Afghan refugees in Northern Ireland, the Social Security (Habitual Residence and Past Presence (Amendment) Regulations (NI) 2021 came into operation in October 2021.
The Regulations exempt certain people relocated to Northern Ireland from Afghanistan from having to satisfy habitual residence and past presence tests before they are eligible for welfare assistance. This means that qualifying claimants should be able to access income related and disability and carer's benefits on their arrival in Northern Ireland.
|
|
No under occupancy deduction for victims of domestic violence
In October 2021, the Housing Benefit and Universal Credit (Sanctuary Schemes) (Amendment) Regulations (NI) 2021 came into operation in Northern Ireland. The 2021 Regulations amend the Housing Benefit Regulations (NI) 2006 and the Universal Credit Regulations (NI) 2016.
The Regulations introduce an exception to under occupancy deductions for Housing Benefit and Universal Credit claimants, who have been a victim of domestic violence and who are living in the social rented sector in a property which is adapted under a sanctuary scheme.
|
|
Payment of benefit arrears in instalments
The Social Security Benefits (Claims and Payments) (Amendment) Regulations (NI) 2021, introduced in October 2021, allow the Department to pay benefit arrears in instalments where it considers it is in the interest of the claimant and the claimant agrees to payment by instalment.
|
|
|
News from our Social Security team
|
|
|
Recovery of overpayments caused by official error
The Department can recover overpayments of Universal Credit, 'New Style' benefits and Welfare Supplementary Payment from claimants even if the overpayments were caused by its error. Law Centre NI has been tracking the impact of this for some time. Read our recent statement here.
In November 2021, in response to a Freedom of Information request, we obtained data from the Department on the number of official error overpayments in Northern Ireland for the years 2019/20 and 2020/21. Please note, this data has not been quality assured to the standard of published Official Statistics.
The data shows that in 2019/20, there were more than 5,000 cases of overpayment caused by official error. This equates to more than £3million. In 2020/21, the figures increased by more than 50%, to over 8,000 cases of overpayment caused by official error, equating to more than £5million. All these overpayments are recoverable by the Department.
Claimants do have the option of requesting a Discretionary Waiver in response to the Department’s request for repayment of an overpayment. However, we do not believe this option is widely known by advisers or claimants. The Department for Work and Pensions statistics for the year 2020/21 in GB indicate that out of 337,000 official error overpayments up to 10 were waived, equating to only £22,000.
To increase awareness about the option of a Discretionary Waiver in Northern Ireland, in October 2019, we published a Legal Information Briefing on social security overpayments and discretionary waiver. Our Briefing provides practical guidance for claimants, including an example of a Discretionary Waiver request letter.
Law Centre NI is concerned about the impact on claimants of the Department's recovery of official error overpayments. There is the financial burden of being faced with an overpayment bill, but also the impact on claimants' mental and emotional health. Particularly, when the overpayment has arisen through no fault of the claimant.
We are also concerned that the law provides a disincentive to the Department to avoid official error overpayments by making sure its calculations are correct first time. It is important that claimants can confidently rely on the social security system and do not have to double check and query payments before spending them.
Law Centre NI is calling on the Department to review and amend its guidance on when to apply a Discretionary Waiver in cases of official error overpayment. We would like to see the guidance amended to better reflect the individual circumstances of claimants. We would like the guidance to consider factors such as the capacity of the claimant to identify the Departmental error, the use of the benefit in good faith and the time that has passed since the benefit was spent.
Law Centre NI is aware of some clients whose legacy benefit continued to be paid after they made a claim for Universal Credit. This is an official error overpayment, as a stop notice should have prevented the continuation of the legacy benefit. The Department has been treating such cases as Universal Credit overpayments, allowing it to recover despite the official error.
If you have a client in these circumstances, please speak to the Law Centre Social Security team about a potential legal challenge as soon as possible. You can contact our Social Security Legal Team on (028) 9024 4401 or benefitsadvice@lawcentreni.org.
|
|
Work Capability Assessments for Employment Support Allowance and Universal Credit
Over the last few months, our Social Security Advice Line has received a number of queries concerning ESA and UC claimants who are subject to work capability assessment and who receive a UC50 form and a ESA50 form to complete. We have also received queries about claimants who receive different outcomes following their work capability assessments for UC and ESA.
Our Welfare Rights Adviser, Rachael Jeffers, has prepared Frequently Asked Questions to help advisers and claimants navigate through such situations.
|
|
Frontier workers can claim Tax Credits
Law Centre NI recently acted for a frontier worker client.
Our client, who lives in the Republic of Ireland and works in Northern Ireland, made an application for Tax Credits and Child Benefit to HMRC after ending her claims for equivalent benefits in the Republic of Ireland. HMRC refused her claims. It advised the claimant that, as a result of Brexit and 'welfare reform changes', it was not possible for her to make a new claim for Tax Credits. The claimant made several complaints to HMRC.
When the case was referred from a local advice agency to Law Centre NI, we were able to confirm that frontier workers continue to be classed as an 'exempt group' (see the Welfare Reform (Northern Ireland) Order 2015 (Commencement No. 14 and Savings and Transitional Provisions) Order 2019) and can therefore make a new claim for Tax Credits. After a lengthy delay, HMRC finally processed the claimant's Tax Credits claim and fully backdated the award.
Our client, who had been struggling financially, is now receiving the correct entitlement and better off by approximately £11,000, including a £4,000 back payment. HMRC has also awarded our client £250 in compensation for the anxiety and distress that came about as a result of its error and delay.
|
|
Appeals Service introducing PIP Appeal pilot from December 2021
From December 2021, the Appeals Service is introducing a six month pilot for PIP appeals.
The pilot will introduce interlocutory hearings, during which a Legally Qualified Member (LQM) will consider sets of appeal papers. After considering the appeal papers, the LQM may issue directions to the claimant in relation to issues specific to their appeal. Claimants may also be invited to obtain focused, specific and relevant medical evidence for use at the appeal hearing.
The purpose of the exercise is to ensure that claimants do not need to produce their entire medical notes and records unless the tribunal believe this to be necessary.
There will be no requirement for the claimant or their representative to attend the interlocutory hearing. The Appeals Service will list the appeal for hearing once the claimant has complied with any directions and provided the relevant medical evidence.
You can read more about representing claimants before the Appeal Tribunal in our Adviser Practice Guide on Appeals to the Appeal Tribunal for Northern Ireland.
|
|
Personal Independence Payment - Statistics
In November 2021, the Department released its most recent statistical report on Personal Independence Payments (PIP). Statistics help us and others to monitor how the Department is administering PIP in Northern Ireland. In September 2021, we obtained statistics from the BBC that show that from January to June 2021, 60% of disability benefit claimants, including PIP claimants, won their benefit appeals.
One of the recommendations of the PIP Second Independent Review of the Assessment Process was that the Department should ensure its Case Managers are empowered to carry out their role as Decision Makers and amend descriptor choices, recommended by Capita, if they have evidence to support this.
Law Centre NI considers that one way of meeting this recommendation is for the Department to monitor how often Case Managers go against a Capita recommendation. We know that statistical information on this is collected by the Department for Work and Pensions and we urged the Department to do the same.
In September 2021, the Department informed us that it is now collecting statistics on how often its Case Managers go against a Capita recommendation. Law Centre NI will monitor these statistics and report our findings in future Bulletins.
|
|
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. |
|
|
|
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.
|
|
|
OCN Level 2 Certificate in Social Security Advice - online
This course is for people who support those engaging with the benefits system, for example social workers, community workers and activists. The course will provide information about how the benefit system works and where and when to refer people for further support. Opens on 14 January 2022.
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. Next cohort begins on 18 January 2022.
OCN Level 4 Tribunal Representation - online
This course provides a detailed understanding of the Personal Independence Payment 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 in April 2022.
Introductory training on Benefits, Personal Independence Payment and Universal Credit - online
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.
|
|
|
|
|
|
