Current test cases | CPAG

Current test cases

Maternity Allowance and Universal Credit

Moore and Others v Secretary of State for Work and Pensions [2020] EWHC 2827 (Admin). On 18 October 2019, CPAG issued judicial review proceedings challenging the treatment of maternity allowance as unearned income in the calculation of universal credit awards. The case was heard as a "rolled up" hearing on 24th and 25th June 2020 and the judgment was issued on 26/10/2020. The High Court found in favour of the Secretary of State. Read full article for the judgment.

Universal credit, earned income and monthly pay

R (Johnson, Woods, Barrett & Stewart) v SSWP [2019] EWHC23 (Admin); SSWP v Johnson, Woods, Barrett & Stewart [2020] EWCA Civ788
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.

Universal credit, benefit cap and those paid 4 weekly

R (Pantellerisco and others) v SSWP [2020] EWHC 1944 (Admin)
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. The cap is applied to the mother 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 was heard on 12 May 2020. Judgment was given on 20 July 2020 with the court finding in the claimants' favour.

Disability Living Allowance 2 year Past Presence Test for children

EK v SSWP CDLA/2019/2018 and TS v SSWP CDLA/2208/2018
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.

Widowed Parent's Allowance where there has been a religious ceremony

This case concerned entitlement to widowed parent’s allowance (WPA) where the appellant and her partner had undergone a religious ceremony, several years before his death, and considered themselves to be, and held themselves out as being, legally married even though they weren't in fact married under English law. The First tier Tribunal found that the appellant had no entitlement to WPA because she did not meet the marriage requirement, and CPAG supported the appellant in appealing to the Upper Tribunal. Judgment was handed down on 26/05/20, dismissing the appeal. The Tribunal held that the grain of the legislation was that the benefit was only to be paid to a spouse or civil partner and to interpret it otherwise would be to cross the divide from the Tribunal's interpretive function and into policy matters that should be reserved for Parliament. For the judgment and advice for unmarried WPA claimants, read full article.

Universal Credit, disability and transitional protection

R (TD & Ors) v Secretary of State for Work And Pensions [2020] EWCA Civ 618
On 12 May 2020, the Court of Appeal handed down a 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 the appellants had been unlawfully discriminated against compared with legacy benefit claimants who had not had any wrongful decision terminating their legacy benefit awards and who would be moved to UC through managed migration when they would benefit from transitional protection. The SSWP has applied directly to the Supreme Court for permission to appeal and a decision on that application is awaited.

Refugees with pre-flight children and access to Sure Start Maternity Grant

Refugees with pre-flight children claiming Maternity Grant for first child in UK
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).

EU pre-settled status

lawfulness of exclusion from universal credit of EEA nationals whose only right to reside is "pre-settled status".
Fratila and Tanase v SSWP CO/3632/2019: CPAG brought judicial review proceedings on behalf of two EU nationals who were refused universal credit on the basis that their limited leave to remain in the UK under Appendix EU to the Immigration Rules (pre-settled status) was not a qualifying right of residence for the purposes of means-tested benefits. On 27 April 2020, the Court dismissed the claim. The Court of Appeal granted permission to appeal on 29 May 2020.

DWP offers and how Tribunals should deal with them

Tribunal making worse decision than DWP offered claimant / practice of "offers"
This case concerns the apparent DWP practice of making "offers" to claimants who have appealed a decision about their benefit entitlement where if the claimant states they would renew their appeal against a revised decision that gave them what was offered, the Decision Maker does not revise as offered but instead allows the case to proceed to the Tribunal. In particular it concerns the approach the First-tier Tribunal should take when faced with a case in which such an offer has been made and refused.

Bereavement Support Payments for Unmarried Parents

Jackson & Others v SSWP [2020] EWHC 183: On 07 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 has not appealed that judgment and indicated on 27 July 2020 that the incompatibility would be addressed by way of remedial order. Please read the full article for the judgment and advice on the current position for unmarried claimants of BSP.