Benefit cap and those paid 4 weekly | CPAG

Benefit cap and those paid 4 weekly

11 May 2020

Pantellerisco and others v SSWP CO/3572/2019

On 12 September 2019, CPAG issued judicial review proceedings on behalf of a single parent and her children challenging the application of the benefit cap to the mother’s universal credit award despite the fact that she works 16 hours per week at national living wage simply because she is paid 4 weekly rather than monthly. Permission to apply for judicial review was granted on 5 December 2019 and the case has been listed for hearing on 12 May 2020.

Ms Pantellerisco has always worked since she left school when she was 16. Initially she worked full-time but then moved to part-time work following the birth of her first child. As of November 2018 up until March 2020, she had been working as a home-carer for 16 hours per week at national living wage. Her employer paid her 4 weekly. In February 2019, her then relationship broke down and she contacted HMRC as she and her partner had been claiming tax credits on a joint claimant basis. She was told that she would have to claim UC which she did and found herself subject to the benefit cap because the wages she received in each assessment period are for 4 weeks work (other than for one assessment period per year in which she receives two lots of 4 weeks wages). This amounted to £525.44 (at the 2019/20 national living wage rate of £8.21 per hour) whereas the earnings exemption for the benefit cap, while based on 16 hours work per week at national living wage, was set at £569.23 (again 2019/20 rates) because it is calculated on a monthly basis.

Ms Pantellerisco tried to get her employer to pay her monthly but this was simply not possible. Nor could she increase her hours of work given her childcare responsibilities and her own health (she suffers from fibromyalgia). Being subject to the cap means that she has been forced to rely on a local foodbank and her children’s school for assistance with food, school uniforms and payment of gas and electricity bills.

The legal challenge is brought on the basis that the SSWP has adopted an unlawful approach to the calculation of earned income of people paid on a four-weekly basis rather than a calendar-monthly basis. As a result, for eleven twelfths of the year Ms Pantellerisco is treated as if she earned or worked for less than the required amount, and therefore subjected to the benefit cap. It is being argued that the SSWP’s approach to earned income is unlawful and misinterprets regulation 54 of the Universal Credit 2013 Regulations in similar manner to Johnson and others v SSWP [2019] EWHC 23. Alternatively, if the SSWP’s approach to income calculation is in fact in line with the legislation it is irrational, at least for the purposes of establishing benefit cap exemption, and creates perverse outcomes. Further, it is argued that the SSWP’s approach is discriminatory contrary to Art 14 ECHR.