Current test cases

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.

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. DWP says it hopes to have a scheme in place covering those within the scope of the Court of Appeal judgment in early 2022.

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. The Secretary of State has appealed to the Supreme Court. Meanwhile on 15 July 2021, the Court of Justice of the European Union, in a judgment which the parties in the case brought by CPAG accept is binding on the Supreme Court, ruled that it was not unlawfully discriminatory to have such a rule (i.e. that the basis on which the Court of Appeal allowed the appeal was wrong). The parties have written to the Supreme Court Registry with proposals for further case management directions and a response is awaited.