Current test cases

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 applied directly to the Supreme Court for permission to appeal but that application was refused on 26 February 2021 and the SSWP will need to proceed to implement the Court of Appeal judgment.

Test case

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. The SSWP has confirmed that she is not appealing the decision of the UT.

Children’s benefits Current Disability benefits Disabled children Legal Test case UK

Test case

Retrospective child tax credits for newly recognised refugees

DK v The Commissioners for her Majesty’s Revenue and Customs (Secretary of State for Work and Pensions (Interested Party) (CO/2

CPAG have obtained permission from the High Court to judicially review HMRC’s refusal to award retrospective child tax credits (“CTC”) for the period between a refugee’s claim for and award of refugee status.

Current Tax credits Test case UK

Test case

Access to means-tested benefits for EU citizens with pre-settled status

Fratila and Tanase v SSWP & AIRE Centre [2020] EWHC 998 (Admin); Fratila and Tanase v SSWP & AIRE Centre [2020] EWCA Civ 1741

CPAG brought judicial review proceedings on behalf of two EU nationals, a severely disabled man and his carer, 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 High Court dismissed the claim. The Claimants sought permission to appeal and, following the grant of permission by the Court of Appeal, the Court found in favour of the Appellants/Claimants in a judgment handed down on 18 December 2020.

Benefits for people from abroad Current Test case UK Universal credit

Test case

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.

Current In-work benefits Test case UK Universal credit

Test case

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.

Benefit cap Current In-work benefits Test case UK Universal credit Work and pay

Test case

Maternity Allowance and Universal Credit

Moore and another 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 (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 have applied to the Court of Appeal for permission to appeal on behalf of the claimants.

Current Maternity and Early Years Test case UK Universal credit

Test case

Universal Credit for 19 year olds in full-time, non-advanced education

MH v Secretary of State for Work and Pensions (SC944/19/01408)

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 24th November 2020 and was dismissed.

Current Education Legal Students Test case UK Universal credit

Test case

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.

Current Mandatory reconsideration and appeals PIP Test case UK

Test case

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.

Current Test case UK