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Summary

The claimant was a young man with autism and a learning disability. When he reached the age of 20 in February 2020, his parents lost entitlement to child tax credit for him. On 16 March 2020, the appellant’s father made contact with the DWP to make a claim for UC on his son’s behalf. After an initial telephone appointment, there were three further telephone calls to confirm details of the claim. In none of either the original call or the followup calls was there any discussion of the start date for the claim – ie, so that ‘backdating’ was not discussed. In April 2020, the claimant was awarded UC from 16 March 2020. In July 2020, a request for backdating by one month to 16 February was made. That was rejected by the decision maker on the grounds that it had been made outside the one-month time limit that a claim could be extended by and had been requested after the claim had been determined. That decision was upheld both on mandatory reconsideration and by the First-tier Tribunal.

A panel of Upper Tribunal judges (Judges Jacobs, Wikeley and Wright) held that the tribunal had erred in law and that it had not been necessary for the claimant to have requested ‘backdating’ before the claim was determined. They referred the case to a fresh tribunal to decide if any of the backdating grounds were actually made out. (The judges clarified that the relevant law, at regulation 26 of the Universal Credit Regulations 2013, SI No.376, does not actually refer to ‘backdating’, although that was the term in common use. Rather, it provides for the circumstances in which the Secretary of State is obliged to ‘extend the time’ for claiming UC, by up to one month, back from the date on which the claim was in fact made.) They accepted the claimant’s argument that neither the primary legislation (at sections 1 and 5 of the Social Security Administration Act 1992) nor regulation 26 imposed a requirement to request this extension either at the time of making the claim or before the claim was determined. Rather, the start date of any entitlement to UC is a question of fact for the decision maker to determine when making her/his decision on the claim. That could then be challenged by applying for a revision of that decision. Whether ‘backdating’ would actually apply would then depend on whether any of the circumstances identified in regulation 26 applied.

In so holding, the judges rejected the argument of the Secretary of State that, as regulation 26(1) says that a claim must be made on ‘the first day of the period in respect of which the claim is made’, the start date contended for made must be specified in the claim (either expressly or by implication). The Secretary of State referred to R(SB) 9/84 (ie, an older case about the now long-defunct supplementary benefit), which said that backdating had to be requested as part of the claim or before it was determined. But the judges considered that regulation 26 was not about the contents of a claim and did not create any requirement regarding it: ‘It follows,’ said Judges Wikeley and Wright in giving their reasons for the decision, ‘that legislation has not made it a requirement of a UC claim that the claim itself specifies a date from which entitlement is sought. It follows, as a matter of statutory construction, that identifying the date from which entitlement is sought is a determination to be made by the Secretary of State in the course of deciding the claim rather than a constitutive part of the claim itself’ (paragraph 57). Regarding R(SB) 9/84, that was not authority regarding UC, and was not to be followed as there were ‘important contextual differences between the supplementary benefit scheme on the one hand and the UC regime on the other’ (paragraph 61). Judge Jacobs submitted his own reasons as part of the decision, emphasising that the date of claim is set by the decision maker and not by any request made by the claimant – but his conclusions regarding the outcome were the same as those of Judges Wikeley and Wright.

Comment from CPAG

It remains good advice to ask for ‘backdating’ as soon as possible and if at all possible before the claim is determined – for example, by entering the request on the online journal. However, this decision makes it clear that the DWP should not regard that as a legal requirement, and that the backdating request may still be made on revision of the initial decision. The Secretary of State has applied for permission to appeal to the Court of Appeal. See also the article in Bulletin 291, p4.

Note: the Secretary of State's appeal against this decision was dismissed by the Court of Appeal on 1 March 2024. For further details, see our caselaw summary Secretary of State for Work and Pensions v Miah [2024] EWCA Civ 186 and our test case update: No requirement to request backdating before a claim to universal credit determined.

Summary

The claimant had been entitled both to income support (IS) and (via the 'passporting' provisions) to HB. Following a revision at the DWP, it was held that in fact she was not entitled to IS between 2003 and 2010 as in that period she was living together as husband and wife with someone in full-time work. The local authority adopted that decision (ie, without conducting its own investigation into whether the claimant was part of a couple and entitled to HB) and held that she was not entitled to HB in the same period and had to repay the overpaid benefit. The claimant appealed against both decisions. The IS appeal was heard first and was rejected; with regard to the HB, First-tier Tribunal rejected the appeal because it considered that the claimant's entitlement was dependent on IS entitlement and that it was 'bound' by the finding that she was living together as husband and wife.

Judge Wright allowed the claimant's further appeal against the decision of the H B tribunal. The tribunal had erred in holding that it was bound to decide the appeal against a claimant where another First-tier Tribunal had decided that she was not entitled to IS in the same period. He remitted the matter to a new First-tier Tribunal, which was to decide, for HB purposes, whether the claimant was living together as husband and wife with the other person, whether in consequence she was overpaid HB and, if so, whether and from whom the overpayment was recoverable.

The tribunal had erred because it had misapplied the decision in R v HBRB Penwith District Council ex parte Menear (1991) 24 HLR115, in that it considered that decision meant that it was bound by the IS decision. Menear, held the judge, 'is authority for the proposition that where a claimant for housing benefit (or council tax benefit) is on income support all of her and her partner's (if she has one) earnings, income and capital is to be disregarded'; but 'there is nothing in the law (statutory or caselaw) that lays down that a local authority is similarly bound to follow the Secretary of State where he has decided that a claimant is not entitled to income support' (paragraphs 16-17). Further, even if the tribunal had been correct in considering that it was bound by the living together decision, for HB, an assessment would still have needed to have been made of their possible entitlement as a couple to HB (paragraph 19). The only thing the tribunal was bound by was the finding that the claimant was not entitled to IS (paragraph 21). In R(H) 9/04 it had been clarified that Menear was limited to cases where the claimant was on IS [or income-based jobseeker's allowance (JSA)], and even then, limited to findings about income and capital, not to any issue of fact common to a JSA or IS decision, and that where the claimant was not on IS or income-based JSA, the local authority had to make its own decision, including on income and capital (paragraph 30-37).

Summary

The claimant had been entitled to income support, housing benefit (HB) and council tax benefit (CTB) as a lone parent. She was the subject of overpayment recovery decisions and a fraud prosecution on the basis that she had been living together as husband and wife with another person, with whom she had made an application for a mortgage on the basis that they had been living together for several years. Before the criminal court in the fraud prosecution, the claimant pleaded guilty (although there were two charges and she only pleaded guilty to one of them). She was convicted. Before the tribunal that considered the recoverability of the HB and CTB overpayments, she argued that she only pleaded guilty because of legal advice that to argue otherwise might have led to action from the mortgage lender. The tribunal allowed her appeal, holding on the balance of probabilities that she was not living together with someone else at the relevant time

Judge Mark allowed the local authority's further appeal and remitted the case to a new tribunal. The tribunal had erred in not properly investigating the effect of the conviction. In so holding, he had extensive reference to his decision in AM v SSWP (DLA) [2013] UKUT 94 (AAC) (CDLA/759/2012). There, he had held that a conviction itself was no more than the opinion of the criminal court that the person was guilty as charged. That was not expert opinion and had no probative value (ie, so as to be sufficiently useful to amount to prove something). However, a guilty plea was of probative value (paragraph 13). Further, there was a general rule of public policy that a convicted person was precluded from challenging her/his conviction in a civil action-- to allow that would be to allow an abuse of process. But in social security tribunals there was an exception in so far as the tribunal should be able, in appropriate cases, to substitute its own legal findings regarding the application of social security law, and draw its own inferences and conclusions from the primary facts with regard to that law. But it remained that a claimant could not change (or resile from) a guilty plea, and the tribunal could not be used to challenge the primary findings of fact made by the criminal court.

Applying that to the present case, the claimant had pleaded guilty to one of the charges to avoid the risk of admitting to lying on her mortgage application form. For Judge Mark, it was 'wrong that the claimant should be able to take that course, and then seek to avoid the consequences by arguing that it was the mortgagee that she misled all along...". There was a public policy concern that prevented the claimant from mounting an attack on her conviction, and she should not be allowed to resile from her guilty plea before the tribunal (paragraphs 17-18). However, the new tribunal would need to establish exactly what charge the claimant pleaded guilty to. For example, if her guilty plea related only to a particular year, it may be that she can argue to the tribunal that she was not living together with someone else in other, different years covered by the overpayment decisions (paragraph 19).

Summary

The local authority decided that the claimant had been overpaid HB and council tax benefit, caused by her alleged failure to report changes in her earnings and her alleged failure to report that her child benefit was stopping, and that the overpayments were recoverable from her. The First-tier Tribunal dismissed the claimant’s appeal.

Judge Wikeley allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred in failing to ensure that the documentation before it was sufficient to determine the claimant’s liability to repay. The tribunal had also erred in failing to have regard to the local authority’s prior knowledge that the claimant had stopped receiving child benefit, the claimant having in fact notified them of that. The error concerning the child benefit notification was conceded by the local authority before the Upper Tribunal. That left Judge Wikeley to decide the claimant’s argument that the tribunal had failed to ensure that the documentation before it was sufficient.

The lengthy history of decision making in this case included that, in connection with the decision on the HB overpayment, on a number of occasions the local authority had sent to the claimant very large bundles of computer- generated notification letters covering the overpayment period (one, for example, comprising over 100 pages). Some, but not all, included final pages setting out how overpayments in the various periods had been calculated. The local authority’s response to the First-tier Tribunal clearly failed, held Judge Wikeley, to present its case clearly and cogently, although ‘a process of forensic archaeology’ revealed a route to the overpayment totals for council tax benefit as stated (paragraph 33). But regarding the HB overpayment, the tribunal had simply accepted the local authority’s explanation without sufficient probing, and it was impossible to discern how the overpayment total had been arrived at. It was, said the judge, 

‘the Council’s responsibility to make out its case and satisfy the First-tier Tribunal as to both the accuracy of the information relied upon and the methodology employed in calculating the claimed overpayment. The Council failed to do so here; moreover the Tribunal erred in law by taking the approach that it did’ (paragraph 35).

Summary

This decision concerns the scope of the decision of the European Court of Justice in Saint Prix v Secretary of State for Work and Pensions. See the article Upper Tribunal extends pregnancy right to reside in Welfare Rights Bulletin 248, p4.

Summary

The claimants were, respectively, Vietnamese and Nigerian nationals with leave to remain in the UK without restrictions on claiming public funds. Having applied for UC, they were both denied payment, including advance payment, until the point at which they were allocated a national insurance number (NINo), the DWP having verified the information and evidence the claimants provided with their applications for a NINo. The claimants requested judicial review of the failure to pay them UC until that point.

A three-judge panel of the Upper Tribunal (Mr Justice Farbey, Judge Wikeley and Judge Church) refused the claimants’ request for judicial review. The Secretary of State had not acted unlawfully in not paying UC until the point that the evidence relating to the application for a NINo had been verified and a national insurance number allocated. In so holding, the Upper Tribunal considered the application of the so-called ‘NINo requirement’ at section 1B of the Social Security Administration Act 1992. That requires that entitlement to benefit cannot arise unless the claimant either has a NINo or, (per section 1B(b), as was the case here) the claimant did not already have a NINo, but applied for one and supplied ‘information or evidence enabling such a number to be so allocated’.

Both claimants argued that the Secretary of State’s requirement that an individual must be allocated a NINo prior to payment of UC was a misdirection in law. That was rejected by the Upper Tribunal. In so deciding, the Upper Tribunal declined to follow the decision of Commissioner (as he then was) Rowland in CH/4085/2007, where he had held (at paragraph 26) that: ‘there is no requirement that a national insurance number have been allocated before benefit is awarded. It is sufficient that an application has been made.’ The Upper Tribunal considered that obiter (not binding) reasoning on the facts of the case, and no principles of law or authority had been cited regarding it. Rather, the NINo requirement was an anti-fraud measure, and as such the words in section 1B(b): ‘…cannot refer to information or evidence which purports to enable a NINo to be allocated. Rather, parliament must mean verified information or evidence which actually then enables a NINo to be allocated’ (paragraph 55). There were ‘… sound reasons of public policy for parliament to impose, by virtue of subsection (1B)(b), a process of verification before awarding or paying public funds to a person who may not be entitled to them’ (paragraph 56). That also applied to advance payments, specifically in the context of the requirement at regulation 5(1)(b) of The Social Security (Payments on Account of Benefit) Regulations 2013 (SI No.383) that it was ‘likely’ that the claimant would be entitled to UC: the Upper Tribunal agreed with the Secretary of State that: ‘..verification is a neutral exercise under section 1(1B)(b) in the sense that it will not be “likely” that entitlement will be established under that process or, conversely, not established. The Department cannot know until the verification process has been completed’ (paragraph 59).

The claimant in Bui additionally argued that it was a breach of Article 1 of Protocol 1 of the European Convention on Human Rights (rights to property); and unlawful discrimination against her as a foreign national, via indirect discrimination within the meaning of section 19(1) of the Equality Act 2010 on grounds of race, as foreign nationals are less likely than British nationals to have a NINo prior to making a claim for UC. The Upper Tribunal did not accept that Article 1 of Protocol 1 was engaged. She could not have an assertable right to UC until the NINo requirement was satisfied, so UC was not her property until that point had been reached. Even if it were, some delay in paying UC was justified ‘by the important public interest in preventing the payment of benefit in respect of fraudulent claims, which was parliament’s intention in introducing section 1(1B)(b)’ (paragraph 63). Neither did the Upper Tribunal accept that the Equality Act was breached. Any differential treatment of claimants from abroad in this context was justified: ‘The government issues NINos only to those who are resident in the United Kingdom. To issue NINos to the entire world, on the off-chance that they might at some point in the future come to the UK and claim benefits or enter employment here, would plainly be impossible. Equally, abandoning the system of routinely issuing NINos to United Kingdom residents approaching adulthood would generate major inefficiency in relation to market and social security access’ (paragraph 69).

Comment from CPAG

Many will find it odd that despite a clear statutory route for satisfying the NINo requirement by applying for one and supplying sufficient evidence, the present decision finds in effect that it cannot be satisfied until one is actually allocated. The claimants have applied for leave to appeal to the Court of Appeal.

For the Court of Appeal's decision see our caselaw summary: Bui, R (On the Application Of) v Secretary of State for Work and Pensions (Re Universal Credit)
Bui, R (On the Application Of) v Secretary of State for Work and Pensions (Re Universal Credit). For further information see our test case update: Delays accessing universal credit for claimants with national Insurance numbers.

Summary

In this decision, the Court of Appeal unanimously held that the practice of automatically refusing to award an advance  of universal credit (UC) merely on the basis that the claimant does not have a national insurance number (NINo) is unlawful. More widely, however, the court upheld an earlier finding (in the Upper Tribunal) that, regarding  a claimant who had applied for a NINo, formal entitlement to UC could only arise when the relevant information or evidence had been verified by the Secretary of State.

The claimant (and another in a similar  case joined to the present one) had both experienced delays in being awarded UC,  due to human errors causing delays in their applications for a NINo) being processed, and the Secretary of State policy of not awarding UC unless and until the relevant information  for the NINo had been verified – ie, so that a NINo was then issued. Although both claimants were eventually awarded UC back  to their date of claim, no advance payments had been made. The claimants’ argued that the policy of not awarding UC, and not making an advance payment of UC, before a NINo had been allocated was unlawful. Specifically: (1) regarding advance payments, that the relevant rule at regulation 5 of the Social Security (Payments on Account of Benefit) Regulations 2013 (SI No.383), in requiring that it was ‘likely’ that the claimant would be entitled to UC,  did not require the claimant already to have  a NINo; (2) regarding formal entitlement to  UC, that the relevant rule at section 1(1B)(1)  of the Social Security Administration Act  1992 specifically provided that the NINo requirement was satisfied where the claimant did not have a NINo but had applied for one and provided the relevant information or evidence ‘enabling’ one to be allocated, and so the Secretary of State’s practice of requiring verification of that information or evidence was unlawful; and (3) that the practice that NINo eligibility does not begin until every other aspect of the claimant’s eligibility to UC had been determined was unlawful as it caused unnecessary delay.

Giving the lead decision, Lord Justice Nugee allowed the claimants’ appeal regarding advance payments. He said that the ordinary meaning of the language used in regulation 5 lent force to the argument that a NINo was not required. Whether a claimant was ‘likely’ to be entitled to UC was a matter of judgement on the facts of the individual case: ‘The scheme  of the provisions contemplates that in a case where a claimant’s claim has not yet been determined and the claimant is in need the Secretary of State will consider whether it appears likely that the conditions of entitlement are met; and it seems to me that this is just as much so in a case where the claimant does not have a NINo as in the case when they do. In my judgment therefore the Secretary of State’s practice in never considering whether this is likely in a case where the claimant does not have a NINo  is flawed’ (paragraph 79).

The other appeals of the claimants were dismissed. Regarding formal entitlement  to UC, supplying sufficient evidence or information for a NINo ‘enabling’ one to be allocated meant, as the Upper Tribunal had held, supplying such material that was subsequently verified. Lord Justice Nugee said: ‘Evidence that enables a NINo to be allocated seems to me plainly to refer to evidence that does in fact justify the allocation of a NINo, not evidence that merely purports to but in fact does not... Since NINos are only allocated to those who need them...and this in turn means those who either have a right to work or (in the present context) a right to benefits, I think it follows that evidence that enables a NINo to be allocated to a claimant for benefit is evidence that establishes that the claimant does in fact have a right to benefits. False documents do not do this’ (paragraph 55).  

Finally, there was nothing unlawful about the Secretary of State having a dedicated team of security officers consider the NINo after other aspects of UC entitlement had been considered. For that to be unlawful it would need to be irrational, and the proper desire to pay benefit to those entitled to it and prevent fraud meant that it was not.

Note from CPAG

The Secretary of State applied for permission to appeal to the Supreme Court. This application was refused by the Court of Appeal and by the Supreme Court. See our test case update: Delays accessing universal credit for claimants with national Insurance numbers.

Summary

This decision of the Court of Appeal holds that, regarding a claimant paid four-weekly, the universal credit (UC) rule setting the earnings threshold for exemption from the benefit cap with reference to a monthly calculation of the level of earnings was not unlawful. In so holding, it rejected the previous decision of the High Court (R (Pantellerisco and others) v Secretary of State for Work and Pensions [2020] EWHC 1944 (Admin)) in this case.

The claimant (represented by CPAG) worked 16 hours a week at the national minimum wage rate. Crucially, for this case, she was paid on a four-weekly cycle, rather than by the calendar month. For 11 months of the year she was unable to qualify for exemption from the benefit cap in UC, as provided for by regulation 82 of the Universal Credit Regulations 2013, SI No.376. This was despite the fact that she was working for 16 hours a week at the national minimum wage rate. The problem was that she was only receiving payment for her work over 28 days rather than the full calendar month, with the result that in 11 months the level of her earnings was below the threshold set by regulation 82.

The court rejected the claimant’s argument that the use of earnings received in the calendar month as the basis of the threshold was unlawful on grounds of irrationality (as had been ruled by the High Court) and that an hours-related threshold should be used instead. Giving the lead decision, Lord Justice Underhill held that that ‘would involve a wholesale departure from a fundamental policy choice of precisely the kind with which the court should be very slow to interfere…’ and that the Secretary of State’s reasons for using a monthly earnings-related threshold were ‘legitimate and cogent’ (paragraph 72). Using averaging of earnings rather than actual receipts in each month ‘would seem to be the most natural way’ of eliminating the problem, but it was not irrational for the Secretary of State not to have done so (paragraph 76). Making such an adjustment was ‘a question for the Secretary of State…and not the court… If it were established that there was a straightforward solution which it was irrational for the Secretary of State not to have pursued the court could and should nevertheless intervene; but that is not the case’ (paragraph 80).

The court had reference to the fact that irrationality had been the basis of the decision of the court (regarding inflexibility in the allocation of double payments of monthly wages) in R (Johnson) v Secretary of State for Work and Pensions [2020] EWCA Civ 778, reported as [2020] PTSR 1872. But that similarity been that case and this one was superficial. In Johnson, the challenge was not at any ‘fundamental feature’ of the UC scheme, but was rather due to the ‘quirk’ of double payment due to mechanics of bank payment, and the solution was essentially one of ‘fine tuning.’ ‘The problem in the present case, by contrast,’ said the judge, ‘arises from the fact the claimant is paid by reference to a period which does not correspond to the assessment period which is a cornerstone of the regulations. That is a real and fundamental mismatch’ (paragraph 82). There was therefore nothing irrational in not electing to provide a solution to the problem, and the rule in regulation 82 was not unlawful.

Comment from CPAG

The court noted that the problem suffered by the claimant would also be suffered by a claimant working 16 hours a week and earning at the national minimum wage but paid weekly or fortnightly, but did not make any distinction in its findings. Whether the court’s identification of averaging as a viable solution will be attended to by the Secretary of State remains to be seen. See the article in Bulletin 285, p4.

Note: an application for permission to appeal to the Supreme Court was refused, see our test case update: Universal credit, benefit cap and those paid 4 weekly.

Summary

In this judicial review decision, the High Court held that universal credit (UC) rules resulting in the claimant being subject to the benefit cap solely because she was paid four-weekly rather than monthly were irrational and unlawful.

The claimant was single with three children. She worked 16 hours a week, paid at the ‘national living wage’ (‘NLW’) rate. She was paid on a four-weekly cycle. When she claimed UC, she found that she was subject to the benefit cap. Despite her work, the exception to the cap for earnings at regulation 82(1)(a) of the Universal Credit Regulations 2013, No.376 (‘the UC Regulations’) did not assist her, apart from in one of her 12 monthly assessment periods. This was because the rule on earned income at regulation 54 of the UC Regulations only has reference to earnings received during the monthly assessment period concerned. That meant that in 11 out of 12 assessment periods, the claimant was assessed on the basis only of 28 days’ pay, despite the fact that she worked for the full calendar month.

In the High Court, Mr Justice Garnham held that the failure to provide the claimant with an exception to benefit cap on the basis of her 16-hour NLW earnings paid four-weekly rather than monthly was irrational and unlawful. Applying the decision (regarding the treatment of those paid monthly but who receive a ‘double payment’ of wages in one assessment period) in R (Johnson and others) v Secretary of State for Work and Pensions [2020] EWCA Civ 778 (22 June 2020), he held: ‘The question to be addressed is whether the decision of the Secretary of State, as to the drafting of the Regulations was outside the range of reasonable decisions open to the decision maker. The particular decision in issue here is the decision not to include in the Regulations an additional express adjustment to ensure that a claimant working 16 hours per week at NLW level, but paid on a four-weekly basis, receives the same UC as those who earn the same amount but are paid on a monthly basis’ (paragraph 47). Applying the analysis in Johnson, the judge could not see that the problem for those paid four-weekly had been considered by the Secretary of State, or a possible solution considered. He concluded that: ‘In those circumstances, it seems to me that the outcome of the balance is obvious and irresistible. I cannot see how any reasonable Secretary of State could have struck the balance in the way the SSWP has done in this case’ (paragraph 81). The order made by the court holds that the combined effect of regulations 82(1)(a) and 54 ‘is irrational and unlawful in so far as employees who are paid on a four-weekly basis (as opposed to a calendar-monthly basis) are treated as having earned income of only 28 days’ earnings in 11 out of 12 assessment periods a year.’

Comment from CPAG

Again, following the decision in Johnson, the judge did not consider it necessary to deal with an additional argument for the claimant that her human rights had been breached. The Secretary of State’s request for permission to appeal was refused, but may be renewed to the Court of Appeal. For more, see our legal test case page: Universal credit, benefit cap and those paid 4 agai . 

Note: the Court of Appeal allowed the Secretary of State's appeal against this decision, see our summary of the Court of Appeal's decision: Pantellerisco and others v Secretary of State for Work and Pensions [2021] EWCA Civ 1454.  For further information see our test case update: Universal credit, benefit cap and those paid 4 weekly.

Summary

In 2010, the claimant entered into a religious marriage ceremony (Nikah) with her partner in accordance with Islamic principles. Believing themselves to be legally married, the marriage was not, as required in order to be recognised as a matter of English law, registered with the Registrar General at the General Register Office. The couple had children. Subsequently, the partner died. The claimant’s application for bereavement payment and widowed parent’s allowance was refused, on the basis that the Nikah did not comply with the formal requirements of the Marriage Act 1949 and the presumption of marriage did not apply, so the she did not satisfy the requirement that she was a surviving ‘spouse’ or ‘civil partner’. Her appeal to the First-tier Tribunal was refused.

On further appeal, the claimant argued that both her and her children’s rights under the European Convention on Human Rights would be breached on an ordinary construction of the term ‘spouse’ in section 39A of the Social Security Contributions and Benefits Act 1992, because such a construction would result in discrimination against them contrary to Article 14 read with Article 8 of the Convention. Further, applying section 3 of the Human Rights Act 1998, the definition of ‘spouse’ must be read as including someone living with her partner having participated in a religious marriage ceremony according to the rites of that religion and subjectively believing herself (on objectively reasonable grounds) to be thereby married. A three-judge panel of the Upper Tribunal (Mrs Justice Farbey, Judge Ward and Judge Church) rejected that argument.

The Secretary of State accepted that, in the light of the decision of the Supreme Court in re McLaughlin [2018] UKSC 48, [2018] 1 WLR 4250, that there was discrimination against the appellant on the grounds that she was not married, contrary to Article 14 read with Article 8 of the Convention. But regarding construing section 39A as the claimant argued (ie, so as to conclude that as a matter of law she was married), the Upper Tribunal’s view was that ‘the grain of section 39A is that benefits should only be paid to a spouse married under English law, even where the benefit is indeed (following McLaughlin) to diminish the financial loss caused to families by the death of a parent’ (paragraph 28). Further, the tribunal said: ‘In the field of social security law, it is a matter for Parliament to decide who receives benefits and who does not. This Tribunal will ensure the fair and proper allocation of benefits within the law but will not grant socio-economic benefits that Parliament has decided to withhold. We have been directed to nothing in the legislative scheme which would persuade us that, by adopting the term “spouse” in the 1999 Act, Parliament intended to grant bereavement benefit to those not validly married as opposed to intending to remedy historic discrimination between men and women’ (paragraph 31).

Comment from CPAG

The Upper Tribunal did not dispute that the claimant (as, in English law, an unmarried surviving partner) was subject to McClaughlin-like discrimination. But it did not accept that on the facts the claimant could avoid that by in fact being treated as a ‘spouse’.

For further information see our test case update: Widowed Parent's Allowance where there has been a religious ceremony.

Summary

In this decision, the Supreme Court rejected the claimants’ argument that the two-child limit in child tax credit was unlawful as in breach of their human rights.

The claimants were parents with, respectively, three and five children living in their households. They argued that the two-child limit was in breach of provisions in the European Convention on Human Rights (ECHR), specifically under Article 8 (right to private and family life), Article 12 (right to found a family) and Article 14 (prohibition of discrimination) taken together with Article 8 and/or Article 1 of Protocol 1.

Giving the lead judgment, Lord Reed first rejected the argument that the two-child limit was in breach of Article 8 by discouraging the creation of larger families and hindering the integration of the ‘additional’ children into their respective families. There was nothing on the facts to engage these points, and no positive obligations on states under the Article to provide material support. Regarding Article 12, again there was nothing on the facts to engage that, and neither was there any positive obligation to provide the material means to found a family.

Arguments that the rule breached Article 14 by discriminating against the parents and the children were also rejected. There was no direct or indirect discrimination against children as compared with adults because children, who had no legal entitlement to means-tested benefits, were not in a comparable position to adults. Possible indirect discrimination against women, and against children living in larger families, was nevertheless justified (and so not unlawful). The aims (protecting the economic welfare of the country by reducing benefit expenditure and ensuring a fair and reasonable social security system) were undoubtedly legitimate. That left the question of proportionality, which essentially was a question of whether parliament made the right judgement in passing the legislation. In both cases, the rule was proportionate. Regarding women: ‘Parliament decided that the importance of the objectives pursued by the measure justified its enactment, notwithstanding its greater impact on women. I see no basis on which this court could properly take a different view’ (paragraph 199). Regarding children in larger families: ‘The democratic credentials of the measure could not be stronger… It was approved by parliament, subject to amendments, after a vigorous debate at which the issues raised in these proceedings were fully canvassed, and in which the body supporting the appellants was an active participant. There is no basis, consistent with the separation of powers under our constitution, on which the courts could properly overturn parliament’s judgement that the measure was an appropriate means of achieving its aims’ (paragraph 209).

Comment from CPAG

The decision is final domestic authority on the lawfulness of the two-child limit, both in child tax credit and universal credit. 

For further information see our test case update: Two child limit challenge.

Summary

This decision of a three-judge panel of the Upper Tribunal arises from the different approaches taken to the hearing of joined employment and support allowance (ESA) and disability living allowance (DLA) appeals taken in WS v SSWP (DLA) (Bulletin 230, p14) and PJ v SSWP (ESA) (Bulletin 224, p17). In the present decision, the three-judge panel held that where a claimant has current appeals concerning ESA and DLA, the hearings are to be held on completely separate sessions and by entirely differently constituted tribunals. The advocacy of 'concurrent' hearings in WS v SSWP (DLA) and 'consecutive' hearings in PJ v SSWP (ESA) were both rejected.

The issue before the Upper Tribunal was whether it was permissible for the First-tier Tribunal to hear joined ESA and DLA appeals (current appeals by the same claimant) either concurrently (ie, without a formal break in proceedings) or consecutively on the same day, without the membership of the tribunal being entirely different. In the Upper Tribunal, Mr Justice Charles and Judges Masher and Ward held, by a majority decision, that neither approach was permissible and that entirely separate hearings by different tribunals were required. The essential background to this issue is the rule on composition on membership of tribunals in the Practice Statement, 'Composition of Tribunals in Social Security and Child Support Cases in the Social Entitlement Chamber on or after 3 November 2008', issued by the Senior President of Tribunals. Under that, an ESA First-tier Tribunal is to consist of a legally qualified member and a medically qualified member, while a DLA First-tier Tribunal is to consist of those plus a disability qualified member.

Judges Masher and Ward considered that Judge Williams had been correct in PJ when he held that the Practice Statement referred to 'the whole decision-making process of a tribunal', including reading the papers and hearing evidence as well as making the final decision (paragraph 33). It followed from that that if there was a 'concurrent' hearing of both an ESA and a DLA appeal, there is an error of law in relation to the ESA appeal, in the 'knowing taking part' of the disability qualified member in the function of the making of the decision in the ESA appeal (paragraphs 34-5). Having established that the rule on tribunal membership applied to all parts of the hearing, it could not be accepted that participation of the disability qualified member in a concurrent hearing did not amount to participation in the ESA appeal - so Judge Lane in WS was wrong to hold otherwise. But, held Judges Masher and Ward, that meant that Judge Williams was also wrong in PS to hold that a tribunal could hear the appeals consecutively- ie, in the same session but with a break (paragraphs 37-9). Even if the DLA appeal was considered first, 'the claimant and any representative would be put in an impossibly unfair position in relation to the ESA appeal' (paragraph 49). In particular, in the event of an adverse decision on the DLA appeal, the short break afforded to the claimant in a 'consecutive' hearing would not give them time to property respond before the ESA part of the hearing began. By contrast, with completely separated hearings, the claimant would be able to property consider the decision and what further evidence or submissions could be made. Accordingly, holding entirely separate hearings of the appeals was the correct approach (paragraphs 48-51).