Welfare benefits law and its rules affect thousands of people including some of the most vulnerable members of society
The official view is that welfare benefits law is relatively straightforward and does not require any input from advisers or lawyers. Hence legal aid funding has been withdrawn for appeals at first instance before the first-tier tribunals (‘Government Proposals for the Reform of Legal Aid in England and Wales‘, Cm 7967). The Courts, on the other hand, describe the benefits system as ‘enormously complex’ and social security legislation as being ‘notoriously labyrinthine’. What is clear is that welfare benefits law and its rules affect thousands of people including some of the most vulnerable members of society and “a social security case may well involve the right of a claimant to subsistence income and so directly affect their access to the most fundamental necessities of life” (per Dyson LJ, Wiles v Social Security Commissioner & Anr  EWCA Civ 258). Our team is dedicated to providing the expertise in this important area and we are particularly committed to representing claimants in appeals against the various benefit authorities (ie. the Department of Work and Pensions, HM Revenue and Customs, Housing Benefit Authorities and the Child Support Agency/Child Maintenance Service).
The Work We Do
Under the public funding scheme in place following the Legal Aid Sentencing and Punishment of Offenders Act 2012, the Team can provide advice and/or representation in the following types of welfare benefit cases:
- Settling applications for permission to appeal to the Upper Tribunal (Administrative Appeals Chamber)
- Representation in the Court of Appeal and the Supreme Court
- Representation in proceedings for judicial review
Welfare benefit cases are also potentially amenable to judicial review. Examples include:
- The exercise of a statutory discretion (e.g. decisions to make interim payments while a claim is being processed)
- Interlocutory decisions of a First-tier Tribunal (e.g. refusing to extend the time limit for a late appeal)
- Decisions by an Upper Tribunal Judge refusing permission to appeal
Members of the Welfare Benefits Team also advise in housing cases where there are underlying benefit issues, e.g. drafting a defence of reasonableness based on an outstanding housing benefit issue and where the appropriate remedy is by way of judicial review of the housing benefit authority (further details can be found on the Garden Court Chambers blog).
The Team also has expertise in advising on:
- Questions of eligibility to welfare benefits having regard to the individual’s immigration status (including migrant workers and their families under EU law)
- The housing benefit rules related to supported housing accommodation
- The treatment of resources held in trust on behalf of vulnerable claimants
- Benefit issues that may arise in proceedings before the family courts or the immigration tribunals
Garden Court Chambers has a strong commitment to providing advice on social welfare issues across the areas of law covered by the Housing, Immigration, Family and Criminal law teams. Examples of the cross-over work the Welfare Benefits Team has undertaken include:
- Housing benefit (Novitskaya v London Borough of Brent and another  EWCA Civ 1260  AACR 6)
- Disability benefits(Sandhu v Secretary of State for Work and Pensions  EWCA Civ 962
- Incapacity benefits (AD v Secretary of State for Work and Pensions  UKUT 307 (AAC)
- Recoupment of benefits and personal insolvency (Secretary of State for Work and Pensions v Payne and Anor  UKSC 60,  2 AC 1)
- Human rights (RM v Secretary of State for Work and Pensions (SF)  UKUT 220 (AAC),  AACR 8)
- EU migrants (Secretary of State for Work and Pensions v Dias  EWCA Civ 807)
- Treatment of income – personal injury payments (Malekout v Secretary of State for Work and Pensions  EWCA Civ 162,  (AACR))
- Treatment of income – funds held by the Court of Protection (CP v Secretary of State for Work and Pensions  UKUT 157 (AAC))
- Treatment of income – immigration status – adequate maintenance – third party payments – no recourse to public funds(Yarce (adequate maintenance: benefits) Colombia  UKUT 425 (IAC))
- Overpayments (SD v Newcastle City Council (HB)  UKUT 306 (AAC));
- Exempt accommodation – supported housing (Wirral Borough Council v Furlong & Ors (HB)  UKUT 291 (AAC))
Publications and Training
Members of the Team are contributors to the social welfare section in Macdonald’s Immigration Law and Practice and the Housing Benefit Update in Legal Action (the Legal Action Group’s magazine). We regularly provide training to a range of organisations including the Housing Law Practitioners Association, the Immigration Law Practitioners Association and the Public Law Project.
Court of Justice of the European Union
Secretary of State for Work and Pensions v Maria Dias  EUECJ C-325/09 (21 July 2011) European Court of Justice
Whether periods of residence completed prior to the transposition of Directive 2004/38/EC contributed to the acquisition of the right of permanent residence. Whether periods of residence completed in reliance on a Residence Permit contributed to the acquisition of a right of permanent residence.
Teixeira (European citizenship)  EUECJ C-480/08
Whether an EEA national who was both a former worker and the primary carer of her children who were in education, was eligible for homelessness assistance.
The Higher Courts
Blakesley v Secretary of State for Work and Pensions  EWCA Civ 141 – Income Support- Whether the UK is in breach of its international obligations towards refugees because of the lack of any provision to make back-payments of welfare benefits to those asylum seekers who, upon inquiry, are found to be refugees
Sanneh v Secretary of State for Work and Pensions and Others  EWCA Civ 49 – Income Support – EU rights – ‘Zambrano’ carers have a positive right to reside as soon as the conditions are satisfied. Consequently, Ms Sanneh had been entitled to claim income support in June 2011 as this was prior to the amendment of the habitual residence test on 8 November 2012. More information can be found on the Garden Court website.
R (Sanneh) v Secretary for State for Work and Pensions & Anor  EWHC 793 (Admin)
Test case on whether a ‘Zambrano carer’ who has been denied access to mainstream welfare benefits should, as a matter of EU law, be provided with interim relief, pending the outcome of the substantive appeal on entitlement.
R (Nicholas) v Upper Tribunal & Anor  EWHC 2724 (Admin)
Judicial review of refusal of permission by the Upper Tribunal – Application of the Cart test in an incapacity benefit appeal where previous medical assessments were not included in the papers.
R (Knowles) v Secretary of State for Work and Pensions  EWHC 19 (Admin)
Housing Benefit – On whether a failure of the housing benefit rules to differentiate between caravan sites for two Romani Gypsies which were privately owned and those run by social landlords amounted to a breach of Article 14 of the ECHR under the Thlimmenos principle.
Burnip v Birmingham City Council & Anor  EWCA Civ 629
Housing Benefit – Test case on whether a failure of the housing benefit rules to differentiate between the disabled and able-bodied amounted to a breach of Article 14 of the ECHR under the Thlimmenos principle.
Wirral MBC v Salibury Independent Living Ltd  EWCA Civ 84  AACR 37
Housing Benefit – whether decisions issued to tenants gave a landlord, here a specialist supported housing provider, a right of appeal.
Secretary of State for Work and Pensions v Payne and Anor  UKSC 60
Test case on the Secretary of State’s power to recoup social security debts when a Debt Relief Order had been made.
Scott v Secretary of State for Work and Pensions  EWCA Civ 103,  AACR 23
State Pension Credit – on the meaning of “members of a religious order fully maintained by their order”.
Sandhu v Secretary of State for Work and Pensions  EWCA Civ 962
Disability Living Allowance – Higher rate of the mobility component – concerning a claimant who could only walk with the aid of crutches.
Malekout v Secretary of State for Work & Pensions  EWCA Civ 162
Income Support – Whether for payments to be disregarded for the purposes of assessing a claimant’s entitlement to income support, the agreement giving rise to the payments, and not just the payments themselves, had to have been made in consequence of personal injury to the claimant.
Novitskaya v London Borough of Brent and another  EWCA Civ 1260  AACR 6
Housing Benefit – Whether a claim can be made without using explicit words to indicate that a claim for housing benefit is being made.
Yesiloz v London Borough of Camden & Anor  EWCA Civ 415 (R(H) 7/09)
Housing Benefit – Whether a Turkish asylum seeker on temporary admission and subject to immigration control, as a citizen of a state that had ratified ECSMA, and in respect of whom some provision had been made in social security legislation, ought to have been considered as having a right to reside for housing benefit purposes.
R (Gargett) v London Borough of Lambeth  EWCA Civ 1450
Discretionary Housing Payment – Whether a claimant could be entitled to a discretionary housing payment for a past period if they are currently in receipt of maximum Housing Benefit.
Humphries & Ors v Secretary of State for Work and Pensions  EWHC 1585 (Admin)
Child Support – On the application of the ex gratia compensation scheme and the use of administrative complaints procedures.
Rowley & Ors v Secretary of State for Department of Work and Pensions  EWCA Civ 598
Whether the Secretary of State for Work and Pensions owed a common law duty of care in negligence to an applicant for child support under the Child Support Act 1991 as such a duty would be inconsistent with the statutory scheme.
R (Hook on the application of) v Secretary of State for Work and Pensions  EWHC 1705 (Admin) (R(IS) 7/07)
Income Support – Whether the application of the notional capital rules in an individual case were disproportionate under Article 8 ECHR.
Secretary of State for Work and Pensions v Bhakta  EWCA Civ 65
Income Support – Habitual residence test and the use of the advanced awards provisions.
The Upper Tribunal
HB v Secretary of State for Work and Pensions (IS)  UKUT 443 (AAC)
Income Support – on whether the abolition on 14 June 2007 of regulations 21ZB of the IS Regs (the rule backdating income support awarded to a refugee to the date his or her asylum application had been made) is contrary to EU law under article 28 of Directive 20044/83/EC or a breach of the appellant’s human rights.
SS v Birmingham City and Secretary of State (HB)  UKUT 418 (AAC)
Housing Benefit – Women’s Refuge – Exempt Accommodation – Whether rent charged by charity with no funding is unreasonably high in comparison with the rent charged by publically funded charities in respect of suitable alternative accommodation elsewhere.
AD v Secretary of State for Work and Pensions  UKUT 307 (AAC)
Whether alcohol and drug dependency constituted a ‘mental condition’.
DK v Secretary of State for Work and Pensions  UKUT 230 (AAC)
On a tribunal’s decision to go ahead with hearing in the claimant’s absence, whether overpayment decision had been properly made.
CP v Secretary of State for Work and Pensions  UKUT 157 (AAC)
Income Support – Whether compensation to disabled claimant for death of mother when she was a child should be ignored as capital and whether failure to make special provision breached her human rights.
RM v Secretary of State for Work and Pensions (SF)  UKUT 220 (AAC),  AACR 8 (1 July 2010)
Funeral payment – Whether statutory scheme discriminatory contrary to Article 14 of the Convention in the case of a Jewish funeral.