A reflection on litigating for impact at CPAG

CPAG has a long history of advancing social security test cases – as solicitors and representatives for claimants, as an Intervener to assist the courts on important points of law or policy in CPAG’s areas of expertise and as a claimant judicially reviewing government policies when individuals are unable to bring cases.

This work goes back decades – CPAG social security judicial reviews in the 1980s included challenges to delays in decision making, failures by a Secretary of State to carry out statutory duties due to the claimed expense and ‘inconvenience’ of doing so, and procedures to rectify previous mistakes in decision making.1 Over time, the conditions for this litigation have evolved, with the advent of domestically enforceable human rights through the Human Rights Act 1998, shifts in judicial approaches, cuts to legal aid and more mundane – but nonetheless important – procedural changes that affect things such as the costs risks of litigating. The term ‘strategic litigation’ has been used to capture this proactive approach to using legal cases to advance the rights of claimants. Whatever we call it, the aim is – as it has always been – to use legal cases for positive impact, to benefit our clients and other families who find themselves in similar situations.

Strategic litigation supports CPAG’s core objective of maximising family incomes and reducing child poverty. Cases can aim to:

• encourage a social security system that ensures claimants receive all of the support they are legally entitled to;
• challenge discriminatory and unfair practices and policies, particularly where they negatively impact children in poverty – we know children in racialised communities and in households with at least one disabled person are disproportionately in poverty;2
• uphold human rights and children’s rights.

With these overlapping aims in mind, we can look to litigate issues across the entire social security system – reflecting CPAG’s analysis that adequate social security is a key solution to child poverty. We monitor the lawfulness of policy decisions that negatively impact children in poverty: for example, by challenging the coalition government’s failure to set up a Child Poverty Commission, which they were required to consult under the (since amended) Child Poverty Act 2010.3 We aim to advance access to justice for claimants – for example, challenging the Lord Chancellor on refusals of legal aid in cases before the social security tribunals and commissioners.4 In the current climate, when a comprehensive child poverty strategy is still much needed, and legal aid funding for welfare benefits issues is decimated following LASPO (the Legal Aid, Sentencing and Punishment of Offenders Act 2012), these areas sadly remain relevant, over a decade since those cases.

How advisers can contribute

CPAG’s litigation work would not be possible with the support of frontline advisers and the commitment and patience of our individual clients.

This article does not cover all possible areas for litigation, and there will be issues not yet identified by CPAG that welfare rights advisers come across in casework. We welcome referrals to [email protected] and continue to use our Early Warning System, Upper Tribunal and Judicial Review Projects to identify recurring problems faced in frontline work.

Specific calls for issues of interest are circulated to National Association of Welfare Rights Advisers (NAWRA) members or posted on Rightsnet but some of our ongoing work concerns the following areas.

Flawed administration resulting in missed entitlement – UC digital system

Last year CPAG published a research report You Reap What Code: universal credit, digitalisation and the rule of law,5 highlighting a myriad of ways in which the universal credit (UC) digital system undermines rule of law principles in the areas of claims processes, decision making, the communication of decisions and disputes processes. The report identifies shortfalls in transparency, procedural fairness and lawfulness – all areas which public law and litigation have a role in upholding.

Failures to ask relevant questions or take relevant information into account

The Court of Appeal recently criticised the Secretary of State for Work and Pension’s (SSWP’s) UC claim process in Abdul Miah (by his litigation friend Mashuq Miah) (Respondent) v SSWP [2024] EWCA Civ 186.6 The Court of Appeal highlighted that ‘it is very unsatisfactory that the system for claiming UC does not offer claimants any opportunity to ask to have their claim backdated’, particularly when the affected group is ‘by definition people who could not reasonably have been expected to make their claim earlier and some of whom are [e]specially vulnerable as a result of ill-health or disability; many will not have ready access to advice’.

Systemic failures by the SSWP to ask relevant questions to establish entitlement or failing to take relevant information into account when it is already held by the Department (for example, regarding receipt of other benefits) when taking decisions engage public law principles that long pre-date digital systems. Moreover, the DWP has options to resolve the identified issues at a systemic level, by amending the IT systems that perpetuate them.

Examples of ongoing areas of interest include:

• absence of claim processes to identify all UC entitlement – for example, in relation to backdating, additional bedrooms (which would result in a higher rate of local housing allowance, or removal of an under-occupancy deduction), and exemptions from the shared accommodation rate;
• reverification and review processes of existing awards that wrongly remove previous lawful entitlement.

Lack of transparency

You Reap What You Code highlighted aspects of the UC system that are opaque and make it difficult for claimants and advisers to know whether they have received their correct entitlement.

Aspects of decision making are partially or fully automated. For example, in relation to managed migration to UC, the DWP has stated in response to a freedom of information request that ‘the calculation of the transitional element itself is an automated process that happens within our systems and there are no manual checks of the actual calculation. Therefore, there is no specific information on the automated process in terms of specific calculations, spreadsheets or formulas that we can share.’7 Claimants are not provided with a breakdown of how their transitional element has been calculated. Lack of transparency risks leaving advisers ill-equipped to advise their clients and check whether decisions are correct. Systemic changes are needed, but in the meantime template wording for requesting written explanations for individual cases and a survey for advisers is available here: cpag.org.uk/migration-to-uc-tools-templates.

Policies or practices that are unfair, discriminatory or otherwise breach human rights

Our legal work supports CPAG’s advocacy focused on policy changes that would most effectively reduce child poverty. We are always keen to hear about unfair or discriminatory aspects of the social security system, particularly when they relate to CPAG’s core policy focus areas, such as the two-child limit, the benefit cap, child benefit and free school meals. Our complaints to the European Court of Human Rights on behalf of three families affected by the two-child limit are pending with the Strasbourg court and we are actively working on the application of the exemptions to the two-child limit.

Unfair or discriminatory policies or practices that can result in families losing out have emerged recently as part of the ongoing managed migration exercise. Areas of ongoing interest in this context include:

• transitional protection rules in managed migration: despite the core aim of transitional protection being to ensure claimants are not worse off at the point of transfer, some claimants’ benefit entitlement at the point of transfer to UC is lower than their legacy benefit entitlement due to the way that the transitional element is calculated. Claimants in this situation might include: families newly affected by the benefit cap, families previously entitled to childcare support in working tax credit but not the UC childcare element (including carers of disabled children), parents with children in residential education, some separated parents with shared responsibility for a child, some families with children temporarily absent or abroad, some claimants whose dependent child has a child (particularly where two-child limit applies) and some kinship carers;
• failures to grant extensions to managed migration deadlines, refusals of cancellation requests in relation to migration notices and failures to make reasonable adjustments for disabled people or other groups as part of the Department’s managed migration exercise.

Even if not referring a case to CPAG, advisers encountering the issues discussed in this article can contact CPAG’s advice services through the usual routes (Support for advisers) and request that their query be flagged to the Strategic Litigation Team.