2012 07 Welfare Benefits

Wednesday 1 August 2012

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Judicial review of Work Capability Assessment

On 29 June 2012, 'the Guardian' contained a report of an application for judicial review of the Work Capability Assessment (WCA) brought on the basis that the current system discriminates against people with mental health problems because the DWP has failed to make reasonable adjustments to the assessment system for the benefit of people with mental health problems, which is in breach of the Equality Act 2010.

Click here for guardian website story dated 29 June 2012 ‘Judge considers judicial review of Work Capability Assessment’.

On 26 July 2012, the Public Law Project (PLP) issued a press statement announcing that the High Court had granted permission for a judicial review of the work WCA. PLP, which represent the two claimants in the case, says that people with mental health conditions are placed at a substantial disadvantage in navigating the WCA system, and that the Equality Act 2010requires the DWP to make reasonable adjustments to avoid such disadvantage, namely that medical evidence about the claimant should to be obtained by the DWP at the outset of the claim:

“The present case concerns some of the problems with the system as experienced by people with mental health problems. Although medically trained, Atos HCPs typically have very limited knowledge of mental health. The interviews are often hurried, and rely on applicants to explain the limitations on their ability to work.

This is a serious problem for people with mental health conditions who lack insight into their conditions, whose conditions fluctuate in seriousness, or who cannot easily talk about their disability. Such people are placed at a substantial disadvantage in navigating the system. Even if they appreciate the need to get expert medical evidence for themselves, they are often less able to navigate the system successfully and to obtain the medical report that they need. The Equality Act 2010 requires the DWP to make reasonable adjustments to avoid such disadvantage.

The reasonable adjustment to the process that the claimants seek is for medical evidence to be sought by the Atos HCP and the DWP at the very outset of the claim. This would ensure that very sick people for whom having to go through a WCA would be extremely distressing are exempted from the process, and for those that do attend a WCA, the assessment of fitness to work takes place in the correct medical context.”

For more information see ‘High Court rules Work Capability Assessment arguably unlawful’ on the PLP website (click here for link).

New impact assessment on the effect of the ‘bedroom tax’

On 6 July 2012, the DWP published an updated impact assessment on the effect of the size criteria restrictions in the social rented sector (‘the bedroom tax’). In 'Housing Benefit: Under occupation of social housing' the DWP estimates the impacts of a reduction in housing benefit for claimants who are considered to be under occupying social housing which is to be introduced from April 2013, including:

  • 31 per cent of housing benefit claimants in the social rented sector will be affected by the change (660,000 claimants);
  • each claimant will see an estimated average reduction in housing benefit of £14 per week;
  • 40,000 claimants will 'float off' housing benefit altogether;
  • the saving to the Treasury will be £930m.

Under the heading “What are the policy objectives and the intended effects?” the impact assessment states:

“The policy is intended to contain Housing Benefit expenditure in the social rented sector. Where claimants are currently living in accommodation which is considered too large for their needs, the Housing Benefit restriction will provide an incentive to move to more suitably sized accommodation. This will free-up accommodation for households living in overcrowded accommodation, or enable accommodation to be offered to other people on the waiting list for social housing. Housing Benefit claimants living in accommodation which is considered to be too large will need to make up any shortfall between the rent and their Housing Benefit entitlement. Whether claimants in the social rented sector choose to move to smaller and more inexpensive accommodation or remain and meet the shortfall, the measure will also create improved work incentives for working age claimants.”

For the link to 'The impact assessment Housing Benefit: Under occupation of social housing' on the DWP website click here.

Consultation on the Blue Badge Scheme

On 9 July 2012, the Department for Transport launched a consultation on possible changes to the process for assessing eligibility for blue disabled parking badges as a consequence of the introduction of the personal independence payment from April 2013.

The consultation notes that there are currently 2.55 million Blue Badge holders, and at present about 36% of Blue Badges are issued to people in receipt of the higher rate of the mobility component ofdisability living allowance(HRMCDLA). This means over 900,000 badges in England are currently on issue to people in receipt of HRMCDLA. Eligibility for PIP will be assessed on a different basis to DLA. This means that none of the proposed options below replicate the existing eligibility criteria for a Blue Badge as this is not possible given that the eligibility conditions for PIP are different.

The three options are:

  • Option 1 – no legislative link between eligibility for a Blue Badge and eligibility for personal independence payment;
  • Option 2 – establishing a legislative link between Blue Badge eligibility and the enhanced mobility component of personal independence payment; or
  • Option 3 – establishing a legislative link between Blue Badge eligibility and those who score 8 points or more within the 'Moving Around' activity within personal independence payment.

The Government says that its preferred option is Option 3 as it would mean that eligibility for a Blue Badge would be most similar (though not identical) to the current scheme and the potential impact would be “minimal”. The arguments in favour of option 3 are set out in paragraphs 3.27-3.38 of the consultation document:

“ … Option 3 would cost the same as it currently costs them to operate the scheme in its existing form as we would expect the number of eligible badge holders to be similar to what it is now. (3.32)

In terms of comparing eligibility with the current scheme, as with Option 1, those who are currently awarded HRMCDLA for a mental health condition, intellectual or cognitive impairment conditions, but who are able to physically move at least 50m, would cease to be automatically eligible for a badge. People who have difficulty working out or following a route as a result of an enduring mental health condition, intellectual impairment or cognitive impairment would also not be automatically eligible. …(3.33)

Those applicants who were not automatically eligible … would apply directly to a local authority under the ‘with further assessment’ criteria and some would be successful. Others, however, would not be eligible unless their condition or illness meant that they were unable to walk or have very considerable difficulty walking. We do not have any estimates of how many people would cease to be automatically eligible but we believe that the majority of those currently automatically eligible would continue to be eligible (3.34).

We would therefore expect the impact of this Option to be less than Options 1 and 2 in terms of the effects on eligibility and local authority costs. It is likely, however, that some people who are currently eligible for a badge would become ineligible. These are people of working age who currently receive a HRMCDLA for a mental health condition, intellectual or cognitive impairment but who are able to walk" (3.36).

The consultation also asks for views on whether the eligibility criteria for a Blue Badge should be extended to include “people with a mental health condition, intellectual or cognitive impairment but who are able to walk. (Question 1, p 13).

The deadline for responding to the consultation is 2 October 2012.

For more information on the Blue Badge consultation from the Department for Transport website click here:

New Statistics Relating to Work Capability Assessments

On 24 July 2012, the DWP published quarterly official statistics containing the latest figures (up to the end of November 2011) for completed Work Capability Assessments (WCAs): The 'Employment and Support Allowance: Outcomes of Work Capability Assessments, Great Britain – new claims'.

Outcomes of completed initial assessments (adjusted for appeals for claims started from September to November 2011) show:

  • 45 per cent of claimants have an outcome i.e. decisions have been made on their claims;
  • 36 per cent of claimants had their claim closed before assessment was complete; and
  • 19 per cent of claimants were still undergoing assessment.

The figures for claimants with an outcome for their claim break down as follows:

  • 45 per cent of claimants were entitled to the benefit. Within this –
  • 20 per cent of claimants were placed in the Work Related Activity Group, and
  • 26 per cent of claimants were placed in the Support Group; and
  • 55 per cent of claimants were assessed as Fit For Work and are no longer eligible for Employment and Support Allowance.

The figures for appeals against an outcome decision were:

  • 41 per cent of all fit for work decisions have been appealed against
  • 31 per cent of the appeals were successful (for claims made between March 2011 and May 2011).

The DWP has also started asking tribunal judges to record a reason if they overturn a decision on appeal. The DWP says that it will use this information to ensure it “understands” why decisions are being overturned by tribunals which will, in turn, assist it in “improving standards of decision making”.

For the link to the July 2012 statistical release 'Employment and Support Allowance: Outcomes of Work Capability Assessments, Great Britain – new claims' click here.

For the accompanying news release available from the DWP website, click here.

Update on Zambrano and Welfare Benefits

In Secretary of State for Work and Pensions v RR (IS) [2011] UKUT 451 (AAC) (file number CIS 886 2008) Judge Jacobs decided that the Zambrano principle [Ruiz Zambrano (European citizenship) [2011] EUECJ C-34/09] extends to an EU parent of a dependant British child. The case concerned a German claimant (R). She came to the UK in 1985 and gave birth to a daughter (D) here in June 2000. She returned to Germany in April 2002. The claimant and D returned to the UK in July 2006. D entered education but R was unable to take up a job offer in the UK (first because she did not have her own accommodation and later by reason of her health, as she had been diagnosed with breast cancer). The Upper Tribunal held that R had a derived right based on her daughter's status as a citizen of the Union, having regard to the principles in Zambrano. The Upper Tribunal reasoned that the fact that R was not a third country national was not 'significant' as the key person in the case was D, the claimant's child. The decision, however, was handed down before the ruling in Dereci & Ors (European citizenship) [2011] EUECJ C-256/11. In December 2011, the DWP announced that it intended to apply for permission to appeal against the Upper Tribunal's decision and issued guidance to decisions makers on staying lookalike cases, namely those where an EU citizen is a parent of a dependant British child: see DMG Memo 35/11 – UT Decision on Right to Reside – "Staying lookalikes".

Subsequently, a message appeared on the HMCTS website for the Upper Tribunal (Administrative Appeals Chambers) that the decision in SSWP v RR had been set aside by Judge Jacobs and should no longer be relied on, and that the issue of the scope and application of Zambrano was to be considered by a Three-Judge Panel (click here).

The hearing of the Three-Judge Panel has been adjourned to await the judgment of the Court of Appeal in De Biasi v Secretary of State for the Home Department (C5/2011/2010) which was heard on 22 March 2012 and concerns an Argentinean national and her two Italian national minor children born in the UK.

In March 2012, the DWP issued Guidance on Zambrano - Memo DMG 7/12 – Right to Reside – Update on Case Law. This advises(at para 6):

"… that Zambrano can never apply in the case of a dependent UK national child whose parent and primary carer is an EU national because the primary carer will always be able to reside within the Union in their state of nationality and the child will be also be able to reside in that state."

Zambrano and EU national primary carers

The DWP's position in relation to the impact of Zambrano on third county nationals is less clear. DMG 7/12 says:

"For the time being, DMs are asked to submit cases which raise this issue to DMA (Leeds) for advice." (para 7).

The DWP’s position on third country nationals can, however, be gleaned from the transcript of R (Sanneh) v Secretary of State for Work and Pensions [2012] EWHC 1840 (Admin), (HHJ Purle QC) where the Court accepted that the application for judicial review was unarguable because while the denial of Income Support benefit may, sooner or later, require her to leave the UK (and the Union), this was not “an inevitable result” of her award of benefit being suspended for the time being. In other words, the Secretary of State’s position is that he is not prohibited by EU law from applying the eligibility test for welfare benefits in respect of third country nationals who are primary carers of British children unless the EU child is at risk of being forced to leave the UK with the primary carer.

The claimant in R (Sanneh) v SSWP was a Gambian national with a UK child whose student visa had run out who had successfully argued before the First-tier Tribunal that she should nevertheless be entitled to claim Income Support, since to treat her as being subject to immigration control was contrary to her rights deriving from the judgment in Zambrano. The Secretary of State used his power to suspend payment of the award of benefit pending the outcome of his appeal to the Upper Tribunal. The claimant sought to challenge the decision to suspend payment of benefit by judicial review, relying on the principle in EU case-law on the need to give full effect to EU rights under EU law, including the obligation to grant interim relief where this is necessary to ensure the full effectiveness of an individual’s rights derived from EU law where judgment has yet to be given on the existence of the rights being claimed under EU law (R v Secretary of State for Transport, Ex p Factortame Ltd (No 2)[1990] AC 603). On refusing permission, HHJ Purle QC commented that while it was not able to say whether the Secretary of State’s appeal to the Upper Tribunal is likely to succeed or whether it is likely to fail, the precise impact of Zambrano has not been finally established yet. However, when the appeal is determined the claimant will be protected to the extent that she will have the right be paid benefit retrospectively. Click here for transcript.

The claimant has lodged an appeal against the refusal of permission to the Court of Appeal (C1/2012/1062). For further details see Birmingham Law Centre’s Blog click here for link.

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