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.

PR claimed UC as part of a mixed-age couple after her ESA award (with support component) ended when she reached pension age. Despite having been previously recognised by DWP as having LCW and LCWRA, she was subject to the application of the three month delay before the LCWRA element became payable in her UC award. The UT found that regulation 28(1) (and to the extent that it is necessary, regulation 28(2)) of the Universal Credit Regulations 2013 discriminated against the appellant on the basis of her age, contrary to her rights under Article 14 when read with A1P1 of the ECHR. The offending part of regulation 28 must therefore be disapplied.

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 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 29 March 2018, CPAG issued judicial review proceedings challenging the decision of the DWP to limit backdated payments to those disabled people who had been underpaid when they transferred from incapacity benefit (‘IB’) to employment and support allowance (‘ESA’) to a 21 October 2014 date.

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.

The issue raised by this case in the Court of Appeal is whether the UK’s Immigration (EEA) Regulations 2006 must be read pursuant to EU law as providing a right to reside in the UK not only to EEA children in education whose parents have been employed persons, but also to those whose parents have been ¬self-employed persons. Regretfully the Court of Appeal has decided that there is no such requirement and an application for permission to appeal to the Supreme Court has been refused.