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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)

Decision in brief

That is wrong as not the test set out: 

‘In other words…if the claimant needs to use an aid or appliance (such as cutlery with special qualities) in order to cut food into pieces then he…scores two points for doing so, irrespective of his ability or otherwise to convey food and drink to his mouth, to chew food, and to swallow food and drink….Some might say it is so obvious that an inability to perform one of the relevant elements of the definition without an aid or appliance leads to the scoring of two points under the relevant activity, that I should not have bothered. But it would be unfortunate if the interpretation taken by the F-tT [First-tier Tribunal] in this case were to take hold and that claimants were to lose out as a result.’

Decision in brief

Claimant’s appeal was struck out for being made outside the usual ‘absolute’ time limit of 13 months from the date of the mandatory reconsideration – but Secretary of State submitted, and Upper Tribunal accepted, that was in error as failing to consider (as per KK v Sheffield City Council (CTB) [2015] UKUT 367 (AAC)) whether discretion should be exercised so as to allow a later appeal in an exceptional case, as (said the Secretary of State): 

‘Overall, the appellant was waiting on DWP to award UC to the appellant in light of her settled status in the UK and requested updates on multiple occasions within the 13-month time limit, but DWP have seemingly failed to action this in a timely manner. As such, I submit that the FtT [First-tier Tribunal] have erred in law by failing to exercise their discretion in considering whether it was appropriate to hold an oral hearing of the application for permission to appeal in which to assess whether the circumstances are exceptional.’

Decision in brief

Claimant’s appeal to the First-tier Tribunal was made some 22 months after the end of the standard one-month time limit from the date of the mandatory reconsideration (ie, well after the overall usual ‘absolute’ time limit of 13 months from the mandatory reconsideration) – tribunal was aware of, and referred to, the possibility of the possible need, in an exceptional case, to exercise discretion to allow a later appeal in order to comply with the right to a fair trial in Article 6 of the European Convention on Human Rights (as per Pomiechowski v Poland [2012] UKSC 20, reported as [2012] 1 WLR 1604, and Adesina v Nursing and Midwifery Council [2013] EWCA Civ 818, reported as [2013] 1 WLR 3156) – but gave inadequate reasons for not accepting that applied, given that there was a ‘considerable body’ of documentary evidence supplied, including medical evidence, as to why this was such a case

Decision in brief

Remaining grounds would make no difference to the outcome of the appeal – fact that claimant not entitled to legal aid in the First-tier Tribunal not persuasive

Decision in brief

Claimant’s son lived in Slovakia with his grandparents but claimant was sole financial provider for him and responsible for all major decisions regarding his education, health, etc – but not entitled to the element by virtue of Regulation 883/04 – UC itself is ‘not a social security family benefit’ for the purposes of the Regulation – neither is the child element severable from UC for those purposes (and even if it were, would still not be a ‘family benefit) – UC elements are not entitlement, but rather amounts that form one part of a calculation – the child element cannot be severed from UC in a similar way to that in which the mobility and care components of disability living allowance could be severed – no reference to the European Court of Justice as the answer to the issue posed is sufficiently clear, and in any event a reference is only possible concerning Part Two of the Withdrawal Agreement and not, as here, with Regulation 883/04

Decision in brief

Not entitled to CA until was ‘over compulsory school age’ – this was the correct meaning to be given to the words ‘over 16’ in section 70(3) of the Social Security Contributions and Benefits Act 1992, which had not been updated to reflect extension to the compulsory school age – claimant was receiving home schooling and argued on the facts that was not receiving ‘full-time’ education – judge accepted that on the facts (which seemed contrary to what was required), but claimant was still disentitled while being under compulsory school age, and: 

‘Parliament cannot have intended that those who are educated at home should be in any different position to those at school when it comes to the receipt of carer’s allowance, and given the policy position on the need for all children to receive full-time education, I cannot envisage that Parliament should have intended that those who do not receive such education should be in a different position.’

Decision in brief

Claimant on sick leave at time when the bonus was received (2020/21 tax year) – tribunal did not err in finding that constituted employed earnings during that year even though was on sick leave, as he had a continuing contract of employment – tax refund made for the same year (and paid by the employer) and tribunal correctly treated that as a delayed payment of earnings – claimant undoubtedly an employee of a real-time information (RTI) employer and it followed that his earnings fell to be determined, under regulation 61(2) of the Universal Credit Regulations, as that reported to HM Revenue and Customs (HMRC) by the employer under the PAYE Regulations – it was immaterial that regulation 55(4A), which applies to tax refunds paid by HMRC, did not apply, as regulation 61(2) did apply and ‘that is an end of the matter'

Decision in brief

SDP was backdated in the ESA award to before the introduction of the ‘severe disability premium gateway’ in January 2019, but that did not mean the HB claim could be backdated to that date – the HB had originally been claimed and refused in July 2019, and the tribunal rightly accepted that although that refusal could now be revised, the maximum backdating was one month – ie, to June 2019

Decision in brief

Finding there of unlawfulness due to irrationality of income calculation in the Universal Credit Regulations 2013 – court’s order was dated 30 June 2020, but must be given effect retrospectively at least to the dates of 2018 decisions at issue in Johnson (and also up to date that Secretary of State remedied the defect by changing the rules from 16 November 2020) – nothing in the language of the declaration or order of the court to restrict it temporally – application of the rules held unlawful in Johnson to the present claimant’s award in February, May, August and November 2020 must be remedied by the Secretary of State in the light of Johnson – what that remedy should be is for the Secretary of State

Decision in brief

Tribunal hearing appeal against termination of tax credits only had jurisdiction to consider factual questions of whether a claim had been made and Secretary of State was ‘satisfied’ – not whether Secretary of State was ‘properly’ satisfied (eg, claimant who was subsequently refused UC on the basis of not having a qualifying right to reside) – previous decisions (eg, SK v Revenue and Customs Commissioner and another [2022] UKUT 10 (AAC), reported as [2022] PTSR 818) holding otherwise are formally obiter, but in any case SK was correct in holding that Secretary of State needed only to be ‘satisfied’ that claimant was actually in Great Britain, and the fact that the claimant was later refused UC for failing the right to reside test was not relevant here 

Note

As was noted by the Upper Tribunal, the regulation 8 requirement that the Secretary of State be ‘satisfied’ that claimant meant the basic conditions for UC was removed from 25 July 2022 (by the Universal Credit (Transitional Provisions) Amendment Regulations 2022, SI No.752) – so the present decision is of limited application.