CPAG search

Summary

In this decision, the Court of Appeal quashed the regulations which provided for various employment programmes and related sanctions. The Court quashed the regulations because they did not describe the programmes in the necessary detail; it maintained a previous ruling that the rules were not in breach of the European Convention on Human Rights as creating 'forced or compulsory labour'.

The appeal arose from the decision of the High Court in this case (Bulletin 230, p10) in which the work programmes and sanctions were held not to be unlawful. Allowing the claimants' further appeal, the Court of Appeal held that the relevant regulations, the Jobseeker's Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011, Si No.917, were unlawful and to be quashed. That was because they failed to comply with the primary requirement at section 17A of the Jobseekers Act 1995 that said that regulations were to provide for programmes of a prescribed 'description'. The regulations did not describe the programmes; they merely named them. Giving the lead judgment, Lord Justice Pill said, 'Simply to give a scheme a name cannot, in context, be treated as a prescribed description of a scheme in which claimants may be required to participate, within section 17A(1)' (paragraph 51). That failure rendered the regulations unlawful and so had to be quashed (paragraph 57).

The regulations were not unlawful on other grounds. In particular, had arrangements for the programme been properly made under the Act, Article 4 of the European Convention on Human Rights (precluding forced or compulsory labour) would not be engaged (paragraphs 65-67).

Note: the government acted swiftly to remake the regulations in new form and with a different title, from 6.45pm on 12 February. See Sl 2012 No.276.

Summary

This decision of a Northern Ireland Chief Commissioner holds that, in the context of child benefit, the right-to-reside test is directly discriminatory in terms of nationality, and is therefore unlawful under European Union legislation. It also suggests that 'economic or social integration' is a distinct route to a right to reside - ie, as an alternative to those specified in the rules.

The claimant was Latvian - ie, an 'AB' national. Following a short stay in 2004, she came with her husband to Northern Ireland in 2005 and shortly after commenced employment, in which (apart from a 17-day period) she remained. However, she was at no point working for an 'authorised worker' and so (under the rules then in operation, since discontinued) she could not be treated as a 'worker' for the purpose of right to reside. She claimed child benefit in 2006 and was refused on the basis that she did not have the right to reside. Her appeal to the appeal tribunal was rejected. Allowing the claimant's further appeal, Chief Commissioner Mullan held that, provided she satisfied the usual rules other than right to reside, the claimant was entitled to child benefit. As it applied to child benefit, the right-to-reside test (contained at regulation 27(3) of the Child Benefit (General) Regulations 2006, SI No.223, was directly discriminatory on grounds of nationality, and was therefore in breach of Article 3(1) of EC Regulation 1408/71 (since replaced by EC Regulation 883/04) (paragraph 59). The appeal tribunal had erred in failing to consider and apply that (paragraph 73).

The Chief Commissioner's reasoning was based on his analysis of the decision of the Supreme Court in Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11 (16 March 2011) (Bulletin 221, p10). In that decision, the Supreme Court had rejected on the context of a claim for pension credit) an argument that the right-to-reside test constituted unlawful discrimination on grounds of nationality. The rationale was partly that in pension credit (and indeed in other means-tested benefits) the test was a 'composite' test, in that it was merely part of a wider 'habitual residence' test that was not in itself directly discriminatory. Although UK nationals would always have the right to reside, not all of them would pass the habitual residence test. But in the present decision, the Chief Commissioner distinguished that in the context of child benefit. Here, there was no wider 'habitual residence' test. Instead, the only wider test was the requirement to be 'ordinarily resident' in the UK That was a test of 'fact and degree rather than law', may be satisfied immediately on arrival in the UK and was the same for UK nationals and European nationals (paragraphs 44-54). Given the 'neutrality' of the ordinary residence requirement, it seemed to the Chief Commissioner that the right-to-reside test was the 'effective and sole residence test' for child benefit (paragraph 56). In the present case, it was the right-to-reside test that was the sole rule that prevented the claimant from being entitled to child benefit; as that test was automatically satisfied by UK nationals, it followed that in this context the right-to-reside test was directly (and so, unlawfully) discriminatory on the grounds of nationality (paragraph 59).

The Chief Commissioner went further. If he was wrong that the right-to-reside test for child benefit constituted direct discrimination, it fell to be considered whether it constituted unlawful (ie, unjustified) indirect discrimination. In Patmalniece, the Supreme Court held that it did not. The indirect discrimination was justified as a measure preventing exploitation of the UK benefits system. But, at least in the judgment of Lord Hope, the leading judgment in that case, that was founded on the principle that a person would be entitled to benefit were s/he to have 'economic integration' or a 'sufficient degree of social integration' (paragraphs 41-52 of the decision in Patmalniece). Emphasising that, in the present decision the Chief Commissioner considered that the 'tenor' of caselaw authority was that an 'exception must exist' to the standard right-to-reside categories, that this exception is for those who have achieved economic or social integration and that the apparent concession of the Secretary of State that economic or social integration was sufficient (as outlined at paragraph 42 of Lord Hope's judgment in Patmalniece) was 'in-many ways, remarkable ... ' (paragraph 68). For the Chief Commissioner, to avoid unlawful indirect discrimination, economic or social integration had to be an 'alternative' route to a right to reside. Although he could not be definitive on what might amount to such integration in the UK, on the facts of this case, which included continuous residence in Northern Ireland for 23 months immediately before the claim and almost continuous employment, the Chief Commissioner considered that the claimant niust have achieved social integration there (paragraph 72).

Comment from CPAG

Thanks to Patricia Carty of the Law Centre Northern Ireland, the claimant's representative, for sending us this decision. Being one of the Northern Ireland Commissioners, it is of persuasive but not formally binding authority in Great Britain. At time of writing, it was understood that the Secretary of State was seeking permission to appeal to the Northern Ireland Court of Appeal.

It remains to be seen whether, and to what extent, it will be followed by (for example) the Upper Tribunal. The finding regarding direct discrimination will in any case not apply to means-tested benefits (which include 'composite' tests involving a habitual residence test, and so are on all fours with Patmalniece), but arguably could be applied to child tax credit (which does not have a habitual residence test). The finding that 'economic or social integration' could constitute a distinct right to reside is potentially capable of general application, but may well need to be tested further, and it is undoubtedly a yet more difficult argument. For more details on both arguments, see the article in our Welfare Rights Bulletin 234, p11.

Note: this decision was overturned by the Court of Appeal, see our caselaw summary The Commissioners for Her Majesty's Revenue and Customs v Spiridonova [2014] NICA 63.

Summary

In this decision, the High Court rejected the claimant's challenge against decisions refusing to make interim payments of benefit and child tax credit to her, pending resolution of her appeals against decisions refusing her initial claims. The claimant was a Gambian national with a child who was a UK national. She had a complex history of claims and challenges, which included a judicial review application of 30 April 2012 in the High Court on a very similar issue, albeit regarding different decisions (Bulletin 229, p14).

For the purposes of the present decision, however, the only relevant decisions were now those of 29 November 2012, refusing to make interim payments of income support, and of 26 October 2012, refusing to make interim payments of child tax credit and child benefit. In both cases, the claimant had been refused entitlement on right to reside grounds, and now had current appeals against those decisions pending. It was not suggested that the decisions refusing to make interim payments were unlawful under domestic law; it was accepted that the only means of challenge open to the claimant was on the basis that to give effect to the right of her daughter as a European Union (EU) citizen to reside in the UK, she should be given interim payments pending resolution of the appeals (paragraphs 76-7).

Mr Justice Hickinbottom rejected the claimant's challenge. On the facts of the case, it was not the case that failure to make interim payments put her daughter's rights, as an EU citizen, to reside in the UK in jeopardy. Because of that, there was no need to for the judge to rule on whether, had there been such jeopardy, interim payments should have been made. The judge did accept that, given that the daughter was four years old, the claimant was her primary carer and there was no available substitute, the daughter's rights to reside in the UK would be in jeopardy were the claimant compelled to leave the UK (and hence EU territory- ie, because she was Gambian) (paragraph 94).

However, the challenge fell 'at the first hurdle', as the claimant in fact conceded that she will never in practice leave the UK due to economic pressure, as she was receiving payments under section 17 of the Children Act from the local authority which would 'inevitably prevent her and her daughter facing destitution and homelessness' (paragraph 97). Even without such a concession, Judge Hickinbottom said he would have found so himself, as the claimant had a council house, money in the form of section 17 payments and child support and the right to work (paragraph 96). It followed that in this case, 'EU law is simply not engaged at all', and that therefore the judge left open the question of what relief may or should be available in an appropriate case (paragraphs 103 and 113).

Summary

The claimant suffered from agoraphobia. On conversion of her income support award to a claim for ESA, she was held to fail the work capability assessment. She appealed but the First-tier Tribunal dismissed her appeal, holding that she scored only nine points under descriptor 15(b) ('is unable to get to a specified place with which the claimant is familiar, without being accompanied by another person').

Judge Turnbull allowed the claimant's further appeal and remitted the case for consideration by a new tribunal. He considered it possible that she may also have scored six points under descriptor 16(c) ('engagement in social contact with someone unfamiliar to the claimant is not possible for the majority of the time due to difficulty relating to others or significant distress experienced by the individual'). The tribunal had erred in apparently assuming that, provided the claimant had the ability to engage with others, the fact that her anxiety could only be allayed by having a friend or relative within easy reach could not bring her within that descriptor (paragraph 14). The evidence was that the claimant could not go out of the house on her own and had to get a taxi to the hospital or doctor's surgery, but could not go to crowded places because of anxiety about feeling faint. The judge accepted that difficulty 'in simply getting alone to the destination' was not covered by activity 16, if the claimant could then engage in social contact without difficulty (paragraph 11). However, the descriptors also referred to where such engagement was precluded because of significant distress experienced by the individual', and it was possible that the effect of having to leaving home unaccompanied, or to enter unfamiliar buildings, caused distress which then prevented the claimant from being able to engage in social contact. For the judge, if the claimant was 'anxious about being in places where she might get into difficulties if she was unaccompanied by a friend or relative and fainted, and that anxiety prevented her from engaging with others, that would in my judgement be capable of bringing her within 16(c), although the "majority of the time" requirement would of course need to be satisfied' (paragraphs 11-14).

The judge also considered that the tribunal should have considered whether there was a 'substantial risk' to the claimant's health were she found not to have limited capability for work, in which case, under regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008 , SI No. 794, she should be treated as having limited capability for work. For the judge, in a situation where regulation 15(b) was the only one satisfied, a tribunal will 'almost inevitably' need to consider regulation 29(2)(b), and the same was probably true where other descriptors in activities 15 and 16 applied that scored only nine or six points. That was because 'inability, for mental reasons, to get to a specified place with which the claimant is familiar without being accompanied inevitably raises the question what the effect on the claimant's mental health would be if he or she were found not to have limited capability for work' (paragraph 15).

Summary

In this Northern Ireland decision, the tribunal had dismissed the claimant's appeal against his failure of the work capability assessment, holding that he did not score points in Activity 1 (mobilising). Its findings included that the claimant could repeatedly walk in excess of 200 metres without 'severe discomfort or exhaustion'.

Allowing the claimant's further appeal, Commissioner Stockman held that the tribunal had applied the wrong test. The descriptors for mobilising refer, in their post-28 March 2011 form, to 'significant' discomfort, not to 'severe discomfort'. For the commissioner, there was a 'qualitative difference' between the two: 'it appears to me that "significant discomfort" denotes a degree of discomfort which does not necessarily reach the threshold of "severe discomfort'", and the tribunal had applied the wrong test (paragraph 12).

Comment from CPAG

Although, as a decision of the Northern Ireland Commissioner, this decision is formally of persuasive rather than binding authority in Great Britain, it has been highlighted on the Upper Tribunal website, and it is strongly arguable that its finding that 'significant' may be less than 'severe' is plainly correct.

This is the decision of the Supreme Court on appeal from the decision of the Court of Appeal in this case. The Court was asked to consider the same issues as the Court of Appeal; in essence, it upheld the Court of Appeal's decision. See the article on p7 of Bulletin 237.

Summary

In this decision, the High Court rejected an argument that the failure to include contributory employment and support allowance as a qualifying benefit for entitlement to a community care grant from the social fund was a breach of her human rights.

The claimant was entitled to contributory employment and support allowance (ESA) but not to income-related ESA. Her claim for a community care grant was refused on the basis that she was not, as required by Direction 25 of the Social Fund Directions, entitled to a qualifying benefit (which included income-related ESA, but not the contributory form). She argued that this was a breach of her human rights, in that it constituted unlawful discrimination against her under Article 14 of the European Convention of Human Rights (prohibition on discrimination) read together with Article 8 (right to respect for private and family life).

Dismissing the application, Deputy Judge Brennan QC noted that the Secretary of State conceded that the facts of the case fell within Article 8 (paragraph 17). However, he held that Article 14 was not engaged, as no discrimination under the Article was made out. Contrary to the claimant's argument, there was no discrimination against her on the basis of 'property', as her proprietary right to contributory ESA was not interfered with (paragraph 22). Further, there was no discrimination on the grounds of the claimant having 'other status' as referred to in Article 14. The claimant did not have a personal characteristic that formed such a status. Article 14 did not outlaw discrimination on any ground whatsoever, and the treatment of the claimant (ie, so that she was entitled only to contributory ESA) simply reflected her work record and national insurance contribution record, without sufficient personal characteristic to bring her within the Article (paragraphs 25-30). Even if there was unlawful discrimination, the deputy judge considered it justified. Applying the test of whether the discrimination was 'manifestly without reasonable foundation, that is to say irrational', as applied by the Court of Appeal in Humphreys v Commissioners for Her Majesty's Revenue and Customs [2010] EWCA Civ 56, he held that it did not meet that test (paragraphs 31-36).

Decision in brief

Test pre-28 January 2013 amendment - at this time, although the test did require inability to remain at a work station by standing and by sitting, it did not consider ability to remain at a work station by means of alternately standing and sitting - MC v SSWP [2012] UKUT 324 (AAC) disapproved in that regard - but from 25 July 2013, wording of test amended so as also to consider a combination of standing and sitting.

Summary

The claimant had mental health problems which led to her having difficulties in getting around unaccompanied and which led her to behave 'occasionally in an unreasonable manner when in the presence of other people'. She was assessed as having limited capability for work, but not as having limited capability for work-related activity and so was put in the work-related activity group. On appeal, it was argued that she should be treated as satisfying the test on the basis that, were she not, there would be a 'substantial risk' to her health from having to carry out work-related activity. The First-tier Tribunal dismissed her appeal, although there was no specific evidence before the tribunal as to what 'work-related activity' the claimant could do without such risk. The tribunal merely found that 'she may be required to attend for occasional interviews and comply with any reasonable requirement made of her in that context.'

Allowing the claimant's further appeal, Judge Gray held that the tribunal, erred in making assumptions about what was to be expected of the claimant rather than relying on evidence. The judge also rejected the submission of the Secretary of State that because there was nothing in the regulations that specified what work-related activity the claimant could be expected to undertake, those activities cannot be stated. Rather, held the judge, 'in order to exercise his judgement and make that decision the Secretary of State must have had some work related activity in mind' (paragraphs 11-14). Decisions that the Secretary of State must provide sufficient information about work-related activity (AH v SSWP [2013] UKUT 118 (AAC) and MN v SSWP (ESA) [2013] UKUT 0262 (AAC)) were noted in support of that (paragraphs 7 and 14).

In so holding, the judge disagreed with the finding in AK v SSWP (ESA) [2013] UKUT 435 (AAC) (file number CE/3916/2012) (9 August 2013) that it in the absence of evidence from the Secretary of State about work-related activities, the First-tier Tribunal could rely on typical examples that were within its knowledge and hold that if the claimant could safely undertake those activities, then there would be no 'substantial risk'. That seemed to Judge Gray to be 'looking at matters from the wrong end of the telescope'; even if the tribunal could identify some activities, that was 'insufficient' to conclude that there was no substantial risk, because the actual activities the claimant would be required to engage in 'may be of a very different order' (paragraphs16-17). The tribunal in the present case was not entitled to make an assumption as to what work-related activity would be required (paragraph 27). A tribunal faced with either no information or generalised information about work-related activities that decided not to adjourn to get case specific information could take one of two routes: decide that the Secretary of State had not shown that the claimant did not have limited capability for work-related activity or make a decision stating in terms what work-related activity would not result in substantial risk, and stating that more onerous commitments would be likely to result in substantial risk, with that being taken into account by the Secretary of State in framing any requirements (paragraphs 26-33).

Summary

In this decision, the Court of Appeal considered the Secretary of State's appeal against the judicial review decision of the Upper Tribunal in MM & DM v SSWP [2013] UKUT 259 (AAC). The Upper Tribunal had held that the work capability assessment placed claimants with mental health problems at a substantial disadvantage by reason of the failure to obtain further medical evidence at an early stage in the process and that the Secretary of State was under an obligation to make 'reasonable adjustments' under the Equality Act 2010 to remedy that. The Tribunal then directed the Secretary of State to investigate and assess such adjustments - ie, before any formal finding of unlawful discrimination was made.

The Court of Appeal unanimously rejected the Secretary of State's challenges to the Upper Tribunal's findings about the work capability assessment and claimants with mental health problems. But it upheld a challenge that the tribunal had no power to direct the-Secretary of State to investigate and assess the necessary adjustments. It was the case, as the Secretary of State argued, that under section 21 (3) of the Equality Act 2010, any challenge regarding reasonable adjustments had to involve seeking to establish discrimination against at least one disabled person - it was not sufficient for interveners to do so. However, although interveners had been involved, there were also at least two disabled claimants with relevant claims in this case, so it was not the case that the Upper Tribunal had no power to grant relief in the judicial review (paragraphs 48-57). Regarding other arguments, the Secretary of State had not established that the finding of substantial disadvantage was either perverse or unfairly reached, and the tribunal had properly identified relevant disadvantages as potentially relating both to the actual determination or outcome of the benefit claim, and the process leading up to it (paragraphs 66 and 70-77).

However, the Court accepted that the tribunal had overstepped its powers in issuing directions to the Secretary of State. It was not for the tribunal to determine for itself what constitutes a reasonable adjustment or to supervise the process of evidence gathering; that would be, said Lord Justice Elias in the lead judgment, to involve the tribunal in 'determining policy issues, which is constitutionally improper... it is not for the court to step into the Secretary of State's shoes and to require the Secretary of State to incur public funds in ways he or she might consider inappropriate' (paragraph 82). It was perfectly proper for the tribunal to adjourn to allow further evidence to be submitted on the reasonableness issue; but actually doing so was a matter for the Secretary of State, and so the tribunal's directions to do so were quashed (paragraphs 83-4).

Summary

In this decision, the Court of Appeal rejected the Secretary of State’s challenge to the earlier decision of the High Court, Jwanczuk, R (On the Application Of) v Secretary of State for Work and Pensions [2022] EWHC 2298 (Admin). In that decision it had been held that the requirement for bereavement support payment (BSP) for the claimant’s deceased spouse to have paid sufficient national insurance contributions was in breach of human rights law as discrimination in the case of a late spouse who had been unable to work for their entire life. 

The claimant’s late wife had suffered from severe disability since birth and had never been able to undertake paid employment. The claimant had been refused BSP on the basis that section 31 of the Pensions Act 2014 required the late spouse to have met an NI contribution condition involving payment of class 1 or 2 NI contributions. In the High Court, Mr Justice Kerr accepted the claimant’s argument that the decision of the Northern Ireland Court of Appeal in O’Donnell v Department for Communities [2020] NICA 36, although not binding in Great Britain, fell to be applied as it was not ‘clearly wrong’. In that decision, the similar Northern Ireland rule was held to be unlawful in such a case (ie, where the late spouse had been unable to work for their entire life), as it was in breach of the prohibition of discrimination at Article 14 of the European Convention on Human Rights (ECHR). The remedy for the breach was to read the legislation as if, in such a case, the NI condition did not apply. The Secretary of State appealed against the decision of the High Court. 

The Court of Appeal unanimously rejected the Secretary of State’s further appeal. All the Secretary of State’s arguments were dismissed, including that the High Court had wrongly followed the decision in O’Donnell, that the claimant did not have an ‘other status’ for the purpose of Article 14, that the alleged discrimination was not justified and that the only available remedy was a declaration of incompatibility between the Pensions Act and the ECHR. Giving the lead decision, Lord Justice Underhill said regarding the application of O’Donnell: ‘In my view a judge of the High Court should be even slower than this court to reach a different conclusion from an appellate court in Scotland or Northern Ireland on an identical issue about the meaning or effect of UK legislation’ (paragraph 49). There was no difficulty with regarding the claimant’s late wife’s disability leading to a lifelong inability work (and so pay the requisite level of NI contributions) as a sufficient ‘other status’ for Article 14. On justification, applying the Bank Mellat questions set out in Bank Mellat v Her Majesty’s Treasury (No.2) [2013] UKSC 39, reported as [2014] 1 AC 700, there was no doubt as to the legitimacy and rationality of the national insurance requirement. So the key issue in this case boiled down to that of proportionality between the measure and the severity of its effect. The Northern Ireland Court of Appeal in O’Donnell had considered the failure to make an exception for the situation at issue to fail the requirement for proportionality, and so was not justified. Although LJ Underhill considered some of the reasoning there debatable, he said: ‘I do not think it right to develop the points further, still less to express any concluded view, because I do not believe that this comes close to being a case of the exceptional kind where it would be right for this court to decline to follow O’Donnell’ (paragraph 105). On remedy, the Secretary of State’s essential point was that to permit a reading of the legislation that excluded the NI condition was to go against the grain of the legislation as a whole. Again, the court considered there was some force in that, but nevertheless (said LJ Underhill): ‘The Northern Ireland Court of Appeal has decided as a matter of ratio that the relevant statutory language can be read down in the way that Kerr J did, and I see no compelling reason which would justify our reaching a different conclusion’ (paragraph 110).

Decision in brief

Entitlement stopped when claimant claimed tax-free childcare (refused) – decision in HMRC v RS (CTC) [2021] UKUT 310 in this case now formally not a final decision – but present decision agrees with it, so that following termination claimant could not in August 2019 make a new claim for tax credits on the basis that the savings (or transitional protection) rule at Article 7(6) of SI 2015 No.634 applied to him as he had a tax credits award for the previous tax year – the rule requires the new claim to be ‘for the next tax year’ (ie, not to a part tax year) – the transitional protection therefore ceased once tax credit entitlement was terminated – however, ‘I should make it clear I am not expressly deciding that the protection afforded by Article 7(6) only applies in the context of renewal claims…in the absence of full argument on the point, I do not exclude the possibility that there may be other types of case which fall within the remit of Article 7(6)’ (paragraph 53)