2012 12 Welfare Benefits

Tuesday 1 January 2013

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Legal Aid and Welfare Benefits

On 4 December 2012 the government was defeated in the House of Lords on legal aid for first-tier tribunal welfare benefits cases. Peers voted by 201 to 191, to accept a motion by Lord Bach that the House decline to approve the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2012 because it did not honour an undertaking made during the bill’s passage through parliament (on 17 April 2012) to provide support in such cases. Liberal Democrat justice minister Tom McNally insisted the government had never promised to provide all first-tier welfare benefit appeals with legal aid. Lord Bach, who moved the motion, said during the debate:

". how can it be right that at a first-tier tribunal, when a client has a point of law, they should not be allowed some legal advice before the first-tier tribunal commences-in other words, before the first-tier tribunal or during it? It is no use being able to get it at the very end of the first-tier tribunal in very remarkable and odd circumstances. The Government seem to believe that was appropriate logic because that is the concession they were generous enough to make in the House of Commons on 17 April 2012. But they have not kept to that concession. They have come up with something much more vague; something that will happen in very, very few cases." (3 Dec 2012 : Column 490).

The House of Lords debate on legal aid for first-tier tribunals is available from Hansard (click here).

For media reports see: 'No legal aid cuts for social welfare appeals' in the Law Society Gazette (click here) and 'Lords defeat part of legal aid cuts' in the Guardian (click here).

NB - On 17 April 2012, then Lord Chancellor Kenneth Clarke introduced an amendment to the Legal Aid, Sentencing and Punishment of Offenders Bill allowing legal aid for welfare benefits cases going to the Upper Tribunal, Court of Appeal and Supreme Court and said that the government would look at introducing regulations which would allow legal aid for tribunals that involved 'a legal issue'. See Welfare Benefits Update for April 2012 (click here) and for September 2012 (click here).

The Autumn Statement

On 5 December 2012 the Chancellor delivered his Autumn Statement in which he announced further welfare savings of 3.7bn in 2015-2016, on top of the £18bn in previously announced savings for the period 2014-2015.

Working age benefits will be uprated by 1 per cent for three years from April 2013 (these include JSA, ESA, IS, and HB). However, it excludes the disability, carers and pensioner premiums in these benefits and the support component in employment and support allowance, which will continue to be uprated by prices. The 1 per cent uprating will extend to child tax credit and working tax credit (excluding disability elements).

In addition, Mr Osborne said that the government would save over £1bn in the next four years through the introduction of a package of measures aimed at reducing tax credits error and fraud.

The Autumn Statement 2012 and accompanying Treasury documents are available at the hm-treasury website (click here).

Mandatory reconsideration before appeal can be lodged

Section 102 of the Welfare Reform Act 2012 contains a power to require consideration of revision before appeal. The December 2012 edition of the DWP's 'Touchbase' magazine provides further details of how mandatory reconsideration system is to be implemented in 2012.

The policy aim is to ensure that more appeals against DWP decisions are resolved without being referred to Her Majesty’s Courts and Tribunals Service (HMCTS). The three key initiatives designed to deliver this objective are:

(1) Mandatory reconsideration: When a person receives a decision from the DWP that they dispute, they will have to request that the Department conducts a ‘mandatory reconsideration’ before being allowed to lodge an appeal.

(2) Direct lodgement People who want to appeal after mandatory reconsideration will need to send their appeal directly to HMCTS.

(3) Time limits The introduction of time-limiting the period in which the DWP produces its appeal response. The DWP is currently in discussions with the Tribunal Procedure Committee as to what these limits might be.

The December 2012 edition of Touchbase is available from the DWP website (click here).

Exempt Accommodation not subject to benefit cap

On 6 December 2012 the DWP issued new guidance to local authority housing benefit departments stating that housing benefit paid to households in supported exempt accommodation was to be disregarded from the benefit cap. The HB/CTB Circular Urgent Bulletin U5/2012 contains the following statement:

"In making the change we recognise that those households in supported exempt accommodation will be paying higher than average housing costs and are not generally in a position to make the behavioural changes required to remove themselves from the cap, therefore needing additional support. It also addresses a specific concern about the impact of the benefit cap on those claimants who are fleeing domestic violence into supported exempt accommodation."

The Housing Benefit and Council Tax Urgent Bulletin U5/2012 dated 6 December 2012 can be found on the DWP website (click here).

Proposed Benefit Cap to apply to carers after children reach adulthood

Minsters have confirmed that parents who look after grown-up disabled offspring will not be exempt from the Benefit Cap. The £500-a-week cap will apply to carers after their children reach adulthood, raising the possibility that some parents will be forced to move out of their home or put their child into care. The admission was made by the Parliamentary Under-Secretary of State for Work and Pensions Esther McVey during a debate in the Commons on 10 December 2012:

"14. Andrew Gwynne (Denton and Reddish) (Lab): For what reason people who receive carer’s allowance are not exempt from the benefits cap. [132040]

The Parliamentary Under-Secretary of State for Work and Pensions (Esther McVey):Although there is no specific exemption from the cap for carers, in practice most carers will be exempt because their partner or child is in receipt of disability living allowance. In addition, there are exemptions for people in work that can also apply to carers. Under universal credit, carers need only work the equivalent of 16 hours a week at the national minimum wage to be exempt.

Andrew Gwynne:I am grateful to the Minister for that response, but it is not quite correct. Close reading of the regulations indicates that a household comprising parents and a disabled adult dependant receiving disability living allowance will not be exempt from the cap, despite the Minister’s promises that they would be. I am sure the Minister appreciates that this is causing great anxiety to those potentially affected. Will she undertake to fix this problem?

Esther McVey:Should there be another adult in the house, that is then a separate household, so both have to be assessed separately. However, I reiterate the fact that those who are exempt from the cap include those on working tax credit, all households with someone who is in receipt of a disability-related benefit, war widows and widowers, and those in receipt of war disablement pensions. A lot of people are therefore exempt.

Ms Karen Buck (Westminster North) (Lab):Ministers have repeatedly stressed that a household containing anyone in receipt of disability living allowance will not be affected by the benefit cap, but constituents of mine who have an adult disabled child are now being told they will be affected by the cap because the regulations appear to state that if a family has an adult severely disabled person living in the household, that person is not a member of the household. Please will the Minister clarify whether the benefit cap will apply to someone who is looking after a severely disabled adult child?

Esther McVey:I will reiterate what a household is: a household is a basic family unit, and for the purposes of paying out-of-work benefits that will be a single adult or a couple and children, so once another adult is in the house, that is a separate household. That has been the definition for a very long time. However, in the instances the hon. Lady mentions, discretionary payments are available and will come to fruition.There is no point in Opposition Members huffing and puffing. That is the situation, and an extra £30 million has been put in place for this."

For the extract from Hansard 10 Dec 2012: Column 16 (click here). See also 'Parents who look after grown-up disabled offspring face benefit cap' the Guardian (click here).

Government decides to proceed with its abolition of the Administrative Justice and Tribunals Council

The government has decided to proceed with its abolition of the Administrative Justice and Tribunals Council (AJTC) and on 21 December 2012 laid a draft Order before Parliament (Public Bodies (Abolition of Administrative Justice and Tribunals Council) Order 2013). This was despite the Public Administration Select Committee (PASC) having said that the role of the AJTC in providing an independent overview of the system is one of 'vital national importance', and the chair of the AJTC last month having written an Open letter to Helen Grant MP, Under Secretary of State at the MoJ (dated 22 November 2012) seeking to persuade the government that it should defer the abolition process (on the grounds that the council's functions cannot simply be brought inside the MoJ, or discharged by the MoJ alone). The open letter contained the following passages:

"Challenges facing Administrative Justice

I am confident that, not least from your days in practice, you are very much aware of the challenges facing Administrative Justice at the moment. …. the Public Administration Select Committee said in its Report earlier this year: “This subject may seem obscure and technical, but it touches upon the lives, the standards of living, and rights of millions of citizens every year.”

The system is noteworthy for the very high volumes of cases which bring people into contact with both public administration and the machinery of justice. I have previously described the Administrative Justice system as a pyramid or iceberg. At its base, the number of decisions affecting individuals is huge. Many of these decisions may be wrong or open to challenge, but the majority of grievances do not proceed all the way up to a formal system. Nevertheless we know that, just at the tip of the iceberg, there are over one million cases a year proceeding to a tribunal, ombudsman or other dispute resolution scheme.

In the years ahead, increased volume demands may make the system very creaky indeed. In particular, we can anticipate considerable additional demand being driven by the introduction of new benefits - Universal Credit and Personal Independence Payment by changes to Housing and Council Tax Benefits and by other welfare reforms.

The austerity programme presents major challenges across the system. There have been impressive productivity improvements within HMCTS which we welcome, but we have worries as cuts hit staff numbers and tribunal venues. More immediate and acute will be the impact of cuts to legal aid and the funding of advice services. This will not only increase the number of self-represented appellants. It will also seriously reduce the numbers who get advice before lodging an appeal or attending a hearing. This will remove a useful filter which weeds out unmeritorious cases and will increase the number who are entirely unprepared. This will mean more appeals, more adjournments, longer hearings, more delay and ultimately more cost.

When we met earlier in the month, I emphasised the ability of the AJTC to keep the whole the system under review and identify the knock-on effects from one part of the system to another. A major challenge remains to make all parts of the system inter-act better together. We have paid special attention in recent years to original decision-making in a wide range of public bodies. Too many mistakes need recourse to justice for a remedy – and this goes much wider than Sir Richard Branson having to use Judicial Review to expose basic mistakes inside the Department of Transport. At the level of ordinary citizens, PASC endorsed our concerns about poor quality of decision-making which manifests itself in high volumes of successful appeals. This can indicate mistakes, mistakes which are not put right and unacceptable ways of dealing with people. There has been considerable concern in the last couple of years, for example, about the handling of Work Capability Assessments for those claiming Employment and Support Allowance (ESA) or being transferred from Incapacity Benefit to ESA. Criticisms of both Atos and DWP officials, which have been voiced by Professor Malcolm Harrington, the National Audit Office, the Public Accounts Committee and others have been echoed in our own observations at tribunals and in our reports. Just last week, I observed a SSCS case involving a long-term heroin addict with physical and mental problems - which were manifestly obvious to the tribunal - who had been assessed by an Atos nurse as effectively free of symptoms."

For more information including the full text of the Open letter to Helen Grant see the AJTC's website (click here).

Government delays roll out of the Benefits Cap

The Benefit Cap was due to be implemented from April 2013. On 21 December 2012 the government announced that it intends to have a phrased roll out of the Benefit Cap to allow the DWP and local authorities time to test out their systems and processes. It will now be starting in four local authorities in London – Bromley, Croydon, Enfield and Haringey. The plan is that the remaining local authorities in London will be implementing the cap by the end September 2013. The precise date at which this change will be rolled out nationally ais to be agreed in the New Year.

For link to DWP website click here.

See also 'Government delays roll out of benefits cap' Inside Housing (21/12/12) (click here) and 'Department for Work and Pensions under fire as benefit cap is delayed - Surprise postponement for up to six months raises doubts over wider programme of welfare reform': the Guardian (22/12/12) (click here).

Case-Law

Defining the scope and limits of Zambrano

In the O, S v Maahanmuuttovirasto and Maahnmuuttovirasto v L , (Joined Cases C-356/11 and C-357/11) [2012] WLR (D) 371, the CJEU (Second Chamber) was asked to define the scope and limits of the principles set out in Case C-34/09 Ruiz Zambrano. In both of the cases a third country national (Ms S and Ms L) had married a Finnish national and each wife bore a child. Those children enjoyed rights afforded by their status as citizens of the Union. The two couples divorced and the wives were awarded soul custody of the children and remained lawfully resident in Finland. Both subsequently remarried third country nationals and each had another child. The second children were third country nationals. The applicants in the proceedings were the third country national husbands who were refused residence permits. The applicants sought to reply on the principles in Zambrano. The CJEU noted that (i) the mothers had a permanent right of residence in Finland and (ii) the applicant fathers were not persons on whom the EU children were legally, financially or emotionally dependent. The also Court observed that it is the relationship of dependency between the Union citizen who is a minor and the third country national who is refused a right of residence "that is liable to jeopardise the effectiveness of Union citizenship, since it is that dependency that would lead to the Union citizen being obliged, in fact, to leave not only the territory of the Member State of which he is a national but also that of the European Union as a whole, as a consequence of such a refusal" (para [56]). The Court concluded that Article 20 TFEU did not preclude a Member State from refusing to grant a residence permit in the type of situation at issue in the main proceedings if such a refusal did not entail, for the Union citizen concerned, the denial of the genuine enjoyment of the substance of the rights conferred by the status of citizen of the Union. (click here for the judgment).

In DH (Jamaica) and AB (Morocco) v Secretary of State for the Home Department [2012] EWCA Civ 1736 (Ward, Elias, Pitchford LJJ) (click here for the judgment) the Court of Appeal was asked to consider the scope of the Zambrano principle. This was a case in which the Secretary of State had ordered that each of the appellants should be deported. Each had committed a serious criminal offence. The Secretary of State maintained that the Zambrano principle does not extend to cover anything short of a situation where the EU citizen is forced to leave the territory of the EU. The appellants' submission was that the scope of the doctrine might arguably extend beyond the situation of forced removal and that it was at least arguable that depriving an EU citizen of the "genuine enjoyment of the substance of the rights" attached to EU citizenship could embrace decisions which leave the right intact but less valuable because the enjoyment is diminished. It may be enough that the right is impeded even though not lost such that a reference to the CJEU was justified. Dismissing the appeal, Elias LJ concluded that:

" ... there is really no basis for asserting that it is arguable in the light of the authorities that the Zambrano principle extends to cover anything short of a situation where the EU citizen is forced to leave the territory of the EU. If the EU citizen, be it child or wife, would not in practice be compelled to leave the country if the non-EU family member were to be refused the right of residence, there is in my view nothing in these authorities to suggest that EU law is engaged. Article 8 Convention rights may then come into the picture to protect family life as the Court recognised in Dereci, but that is an entirely distinct area of protection." (At para [63]).

Elias LJ made the following observations on the nature of the right of residence established in Zambrano:

" .. my judgment it is necessary to focus on the nature of the right in issue and to decide what constitutes an impediment. The right of residence is a right to reside in the territory of the EU. It is not a right to any particular quality or life or to any particular standard of living. Accordingly, there is no impediment to exercising the right to reside if residence remains possible as a matter of substance, albeit that the quality of life is diminished. Of course, to the extent that the quality or standard of life will be seriously impaired by excluding the non EU national, that is likely in practice to infringe the right of residence itself because it will effectively compel the EU citizen to give up residence and travel with the non-EU national. But in such a case the Zambrano doctrine would apply and the EU citizen's rights would have to be protected (save for the possibility of a proportionate deprivation of rights). Accordingly, to that extent that the focus is on protecting the substance of the right, that formulation of the principle already provides protection from certain interferences with the enjoyment of the right.

In my judgment, it is also highly pertinent that the CJEU has confirmed in Dereci (paras 67-68) that the fact that the right to family life is adversely affected, or that the presence of the non-EU national is desirable for economic reasons, will not of themselves constitute factors capable of triggering the Zambrano principle."

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