Legal test cases

This is a challenge to the policy of the Secretary of State for Work and Pensions in relation to MJ, a claimant in receipt of the carer element and transitional SDP element, to erode the whole of her transitional SDP element when she was found to have limited capability for work and work related activity. The UT allowed the SSWP’s appeal and re-made the FTT decision in MJ’s favour, finding that she had been unlawfully discriminated against.

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. The SSWP appealed to the Court of Appeal and judgment was given on 8 October 2021, allowing the SSWP's appeal.  Ms Pantellerisco applied for permission to appeal to the Supreme Court on 1/12/21 and this was refused by order dated 04/08/22. 

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.

This case concerned a judicial review challenging the revised, lower benefit cap, introduced in 2016. The appeal was brought on behalf of two single mothers who are affected by the cap due to their caring responsibilities. One of the claimants has children with significant health needs while the other has previously fled domestic violence. The appeal in this case was heard on 17-19 July 2018 by a 7 judge panel of the Supreme Court alongside that of R (DA and Others) v SSWP. Judgment was given on 15 May 2019 finding that cap did not unlawfully discriminate against lone parents with children under 5 and their children.

This appeal concerns the application of the ‘past presence’ test that requires disability benefit claimants to be resident in Great Britain for 104 weeks out of the 156 weeks prior to the claim. However, for claimants to whom an EU regulation applies, the past presence test is disapplied if they can establish a genuine and sufficient link to the UK social security system.