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Our September 2021 e-bulletin about advising Black and ethnic minority communities.

Our February 2021 e-bulletin about advising Black and ethnic minority communities.

This case successfully challenged the rigidity of the monthly assessment period regime under universal credit (UC) and the way that earned income is calculated for certain claimants. The case concerned four single working mothers whose regular monthly pay dates for their wages fell close to the start/end of their assessment periods, resulting in them sometimes having two paydays in one assessment period. This issue caused them to experience fluctuations of their income and significant cash losses.

These cases challenge the legality of the revised past presence test (PPT), which requires a child to have been in the UK for 104 of the past 156 weeks before being eligible to claim disability living allowance (DLA) (referred to as the ‘2 year PPT’). The appellants argue that the 2 year PPT is unlawful as a result of non-compliance by the SSWP with the Public Sector Equality Duty (PSED) and the discriminatory effect of the 2 year PPT is in breach of their human rights. The cases were heard together before UTJ Ward at a two-day Upper Tribunal hearing on 3 - 4 June 2020 and judgment, dated 12 October 2020 and sent to the parties on 17 November 2020, found in favour of the appellants on human rights grounds. The SSWP has confirmed that she is not appealing the decision of the UT. Subsequent claims for carer's allowance by the children's mother's for the earlier period that their children were now recognised as being entitled to DLA from were initially refused by the SSWP but appeals were successful before the FTT.

On 12 May 2020, the Court of Appeal handed down judgment in favour of the appellants in this case. The appellants were originally in receipt of legacy benefits but had to claim universal credit (UC) when the Secretary of State for Work and Pensions (SSWP) decided that they were no longer entitled to legacy benefits and terminated their awards.  Even though those decisions were ultimately overturned on revision, the appellants were stuck on UC and received less than they would have if they had remained on legacy benefits.  The Court found that there had been a difference in treatment of the appellants compared with legacy benefit claimants who had not had any wrongful decision terminating their legacy benefit awards and therefore would be moved to UC through managed migration and benefit from transitional protection. This difference in treatment was found by the Court to be manifestly without reasonable foundation and the Article 14 non-discrimination rights of the appellants (in conjunction with Article 1 to the First Protocol) had been breached. The SSWP applied directly to the Supreme Court for permission to appeal but that application was refused on 26 February 2021. 

On 7 February 2020, the High Court handed down judgment in this case. It was held that the requirement under the Pensions Act 2014, in conjunction with the Bereavement Support Payment Regulations 2017, to be married or in a civil partnership in order to claim higher rate bereavement support payment (BSP) was not compatible with the European Convention on Human Rights. The SSWP did not appeal that judgment. The Bereavement Benefits (Remedial) Order 2022 came into effect on 9th February 2023 and extends eligibility for bereavement support payment and widowed parent's allowance to cohabiting partners with children.

The Upper Tribunal in this case gives guidance on how HMRC should calculate the earnings in a period of a term time worker and advises that this should not be done by looking at the wages they receive in a period but rather by looking at the wages they expect to receive for work done in a period. This should mean more term time workers on low incomes who are paid a monthly salary should now qualify for 30 hours free childcare.

This case concerned the approach a First-tier Tribunal should take in a case where the DWP had offered to revise the decision under appeal but the claimant had elected instead to continue straight to appeal. The Upper Tribunal held an FTT should treat the offer made to the claimant as its starting point and should ensure that if it was minded to award less than had been offered it would warn the claimant and possibly allow an opportunity for an adjournment.

A brief update on the habitual residence test and the benefit cap, and three further topics which emerged over the past month.

CPAG represented the appellant in a challenge to the universal credit (UC) rules that prevent certain 19 year olds who are in full-time, non-advanced education from being included in their parents’ UC claim, while they are also prevented from claiming UC in their own right, on the basis that the provisions are discriminatory and irrational. The appeal was heard by the First-tier Tribunal on 24 November and was dismissed.

On 18 October 2019, CPAG issued judicial review proceedings challenging the treatment of maternity allowance (MA) as unearned income in the calculation of universal credit (UC) awards. A "rolled up" hearing of the case took place in the High Court on 24–25 June 2020, meaning that permission to apply for judicial review and the substantive case were considered at the same hearing. In a judgment handed down on 26 October 2020, the judge found that CPAG's case was arguable on two grounds, but ultimately found in favour of the Secretary of State. CPAG applied to the Court of Appeal for permission to appeal on behalf of the claimants. The permission application was considered at an oral hearing on 23 June 2021 and permission was refused. There is no further avenue of challenge in relation to this matter.

The Upper Tribunal decides refugees who arrived in the UK with children, can claim a Sure Start Maternity Grant when having their first child in the UK (as the contrary position results in unlawful discrimination). The Upper Tribunal has allowed the appeals of two claimants who challenged the rule excluding those who had another child in their family aged under 16 from entitlement to the Sure Start Maternity Grant (SSMG).