Test case

30 hours free childcare: term time only workers assessment of income

Calculation of income for term time workers when assessing eligibility for 30 hours free childcare
HMRC v JS, EL and LG [2021] UKUT 264 (AAC) Current status: Upper Tribunal judgment given in claimants’ favour by the Upper Tribunal. The Upper Tribunal in this case gives guidance on how HMRC should calculate the earnings in a period of a term time worker and advises that this should not be done by looking at the wages they receive in a period but rather by looking at the wages they except to receive for work done in a period. This should mean more term time workers on low incomes who are paid a monthly salary should now qualify for 30 hours free childcare. In addition the Upper Tribunal comments that in a case where a parent might be unable to afford childcare and therefore to go to work without access to the 30 hours free childcare then the First-tier Tribunal may need to expedite the appeal. Finally, the Upper Tribunal comments on the fact that such appeals are prospective only but highlights that they can still affect ongoing entitlement and also give access to HMRC's compensation scheme in cases where the appeal succeeds but the appellant has by that time missed out on the free chilcare for a period and had to pay for childcare themselves.

Universal credit, benefit cap and those paid 4 weekly

R (Pantellerisco and others) v SSWP [2021] EWCA Civ 1454
On 12 September 2019, CPAG issued judicial review proceedings on behalf of a single parent and her children challenging the application of the benefit cap to the mother’s universal credit award. The cap is applied to the mother despite the fact that she works 16 hours per week at national living wage, simply because she is paid 4 weekly rather than monthly. Permission to apply for judicial review was granted on 5 December 2019 and the case was heard on 12 May 2020. Judgment was given on 20 July 2020 with the court finding in the claimants' favour. The SSWP appealed to the Court of Appeal and the SSWP's appeal was allowed on 8 October 2021. The claimants have made an application to the Supreme Court for permission to appeal and a decision on that application is awaited.

Two child limit challenge

R (SC and Ors) v SSWP [2021] UKSC 26
This was a challenge to the two child limit, introduced by the Welfare Reform and Work Act 2016, which restricts support for children in families claiming child tax credit or universal credit to the first two children (subject to limited exceptions). The limit applies to families where the third or subsequent child is born after 5 April 2017. The legal challenge was partially successful in the High Court but an appeal to the Court of Appeal on the lawfulness of the overall policy was unsuccessful. An appeal to the Supreme Court was heard remotely across 20-22 October 2020 and judgment was handed down on 9/7/21 dismissing the appeal. Complaints have now been filed (December 2021) on behalf of two different families with the European Court of Human Rights.

National insurance numbers and universal credit

R (Bui) v Secretary of State for Work and Pensions CO/2489/2021
This is a challenge to the policy of the Secretary of State for Work and Pensions (SSWP) that she will not make payments of universal credit (UC) unless and until a claimant has a national insurance number (the ‘NINo Rule’).

DWP offers and how Tribunals should deal with them

Tribunal making worse decision than DWP offered claimant in a rejected revision
This case concerned the approach a First-tier Tribunal should take in a case where the DWP had offered to revise the decision under appeal but the claimant had elected instead to continue straight to appeal. The Upper Tribunal held an FTT should treat the offer made to the claimant as its starting point and should ensure that if it was minded to award less than had been offered it would warn the claimant and possibly allow an opportunity for an adjournment.

Retrospective child tax credits for newly recognised refugees

DK v The Commissioners for her Majesty’s Revenue and Customs (Secretary of State for Work and Pensions (Interested Party) (CO/2
CPAG successfully challenged HMRC’s refusal to award retrospective child tax credits (“CTC”) for the period between a refugee’s claim for and award of refugee status. The High Court heard the case on 16 June 2021 and handed down judgment in favour of the claimant on 5 July 2021.

Universal Credit, disability and transitional protection

R (TD & Ors) v Secretary of State for Work And Pensions [2020] EWCA Civ 618
On 12 May 2020, the Court of Appeal handed down a judgment in favour of the appellants in this case. The appellants were originally in receipt of legacy benefits but had to claim universal credit (UC) when the Secretary of State for Work and Pensions (SSWP) decided that they were no longer entitled to legacy benefits and terminated their awards.  Even though those decisions were ultimately overturned on revision, the appellants were stuck on UC and received less than they would have if they had remained on legacy benefits.  The Court found that the appellants had been unlawfully discriminated against compared with legacy benefit claimants who had not had any wrongful decision terminating their legacy benefit awards and who would be moved to UC through managed migration when they would benefit from transitional protection. The SSWP applied directly to the Supreme Court for permission to appeal but that application was refused on 26 February 2021. DWP says it hopes to have a scheme in place covering those within the scope of the Court of Appeal judgment in early 2022.

Disability Living Allowance 2 year Past Presence Test for children

EK v SSWP CDLA/2019/2018 and TS v SSWP CDLA/2208/2018
These cases challenge the legality of the revised past presence test (PPT), which requires a child to have been in the UK for 104 of the past 156 weeks before being eligible to claim disability living allowance (DLA) (referred to as the ‘2 year PPT’). The appellants argue that the 2 year PPT is unlawful as a result of non-compliance by the SSWP with the Public Sector Equality Duty (PSED) and the discriminatory effect of the 2 year PPT is in breach of their human rights. The cases were heard together before UTJ Ward at a two-day Upper Tribunal hearing on 3 - 4 June 2020 and judgment, dated 12 October 2020 and sent to the parties on 17 November 2020, found in favour of the appellants on human rights grounds. The SSWP has confirmed that she is not appealing the decision of the UT.

Access to means-tested benefits for EU citizens with pre-settled status

Fratila and Tanase v SSWP & AIRE Centre [2020] EWHC 998 (Admin); Fratila and Tanase v SSWP & AIRE Centre [2020] EWCA Civ 1741
CPAG brought judicial review proceedings on behalf of two EU nationals, a severely disabled man and his carer, who were refused universal credit on the basis that their limited leave to remain in the UK under Appendix EU to the immigration rules (‘pre-settled status’) was not a qualifying right of residence for the purposes of means-tested benefits. On 27 April 2020, the High Court dismissed the claim. The Claimants sought permission to appeal and, following the grant of permission by the Court of Appeal, the Court found in favour of the Appellants/Claimants in a judgment handed down on 18 December 2020. The Secretary of State appealed to the Supreme Court. Meanwhile on 15 July 2021, the Court of Justice of the European Union, in a judgment which the parties in the case brought by CPAG accept is binding on the Supreme Court, ruled that it was not unlawfully discriminatory to have such a rule (i.e. that the basis on which the Court of Appeal allowed the appeal was wrong). The Supreme Court gave a final decision allowing the Secretary of State's appeal on 01 December 2021.

Universal credit, earned income and monthly pay

R (Johnson, Woods, Barrett & Stewart) v SSWP [2019] EWHC23 (Admin); SSWP v Johnson, Woods, Barrett & Stewart [2020] EWCA Civ788
This case successfully challenged the rigidity of the monthly assessment period regime under universal credit (UC) and the way that earned income is calculated for certain claimants. The case concerned four single working mothers whose regular monthly pay dates for their wages fell close to the start/end of their assessment periods, resulting in them sometimes having two paydays in one assessment period. This issue caused them to experience fluctuations of their income and significant cash losses.