2013 01 Welfare Benefits

Friday 1 February 2013

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Legal Aid and First-tier Tribunals

On 8 January 2013, responding to a question in the House of Lords, the government confirmed that it will not provide legal aid for welfare benefit cases in First-tier Tribunals. Responding to a question in the House of Lords yesterday about what plans the government has following the House of Lords rejection of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2012 - rejected on the grounds that it failed to fulfil a government concession in relation to legal aid for welfare benefits appeals to a First-tier Tribunal - Ministry of Justice Minister Lord McNally said that the rejection of the Order through a 'fatal motion' meant that the concession no longer existed, and that -

"The commitment was to examine the case for the First-tier Tribunals. As I have reported back to the House on numerous occasions, the decision was that in the circumstances it was far too expensive."

An extract of the exchange is reproduced below:

"Lord Bach

To ask Her Majesty's Government what plans they have in respect of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2012, which the House of Lords declined to approve on 3 December.

The Minister of State, Ministry of Justice (Lord McNally): My Lords, as I made clear before the House voted on 3 December, if the fatal Motion was carried, the LASPO Act would not provide legal aid in the cases specified in the rejected statutory instrument. That remains the case.

Lord Bach: Does the Minister understand that that Answer is entirely unsatisfactory and does no credit to the Government? This House declined to accept the order because it represented a breach of a government undertaking given to another place to get the legal aid Bill through and because what it offered was too mean. Why are the Government taking absolutely no notice of the will of this House of Parliament? Are they not behaving more like a spoilt child than a mature, responsible Government, protecting the legal rights of some of the poorest citizens under their care, including many with disabilities?

Lord McNally: I think that the noble Lord got all his soundbites in there.

Noble Lords: Oh.

Lord McNally: Well, we have had heard it over two years and both Houses have come to decisions on the LASPO Bill. As regards fatal Motions, I can speak from experience. I was part of engineering a fatal Motion on the casino Bill. That fatal Motion was carried by the House. The Government of the day did nothing further on the casino matter. If I may coin a phrase, as it says on the tin, fatal Motions mean what they say."

Further details of Lord McNally's statement on legal aid for welfare benefits appeals to a First-tier Tribunal is available from Hansard 8 Jan 2013: Column 13 (click here for link).

The end of Council Tax Benefit - April 2013

On 4 January 2013 the Guardian reported that according to new research by the New Policy Institute and the Resolution Foundation, two thirds of councils will expect a council tax contribution from all working age claimants. The research shows that of the 86 councils which have already published their plans for the localised council tax support which will replace Council Tax Benefit from April 2012, 57 intend to introduce a minimum council tax payment ranging from 6 per cent to 30 per cent of a full council tax bill.

See "More households to pay council tax as benefits cease under coalition rules" available on the guardian.co.uk website (click here for link).

According to a new report, 'No Clear Benefit', published on 31 January 2013 by the Resolution Foundation, three quarters of local authorities expect an increased council tax contribution from low income families when Council Tax Benefit ends from 1 April 2012. The Report states that 28 per cent of local authorities are making no change to the scheme; 33 per cent a 'moderate' increase; 14 per cent a 'large' increase; and 21 per cent a 'severe' increase. In addition, the report says that an unemployed claimant currently receiving 100 per cent council tax benefit will typically face annual council tax bills of between £96 (£1.80 per week) and £255 (£4.90 per week) a year under the reforms. In relation to people who are working, the report says that –

  • a typical single parent with children in childcare and working part-time on the national minimum wage (NMW) will face increases in their annual council tax bill ranging from £96 (an increase of 55 per cent on their current payment) to £577 (an increase of 333 per cent on their current payment) depending on the severity of the local scheme introduced;
  • a typical couple with children where only one partner is in full-time work on the NMW will face increases in their annual council tax bill ranging from £96 (an increase of 12 per cent on their current payment) to £304 (an increase of 37 per cent on their current payment);
  • a typical single parent working part-time on the NMW, and not paying for childcare will face increases in their annual council tax bill ranging from £96 (an increase of 14 per cent) to £446 (an increase of 66 per cent) depending on the severity of the local scheme introduced.

The Resolution Foundation report, 'No Clear Benefit', is available from resolutionfoundation.org.uk (click here for link).

The impact of housing benefit cuts

On 24 January 2013 the National Housing Federation published a survey of 232 housing associations in which many fear that welfare reforms will lead to an increase in rent arrears. The 'Impact of welfare reform on housing associations – 2012 Baseline report', contains the following findings:-

  • of all the reforms, the introduction of direct payments to tenants is expected to have the biggest impact on housing associations – more than 80 per cent of housing associations say it will affect their organisations a great deal or a fair amount;
  • the 'bedroom tax' is anticipated to have a significant impact for more than 60 per cent of associations;
  • 84 per cent of associations believe that rent arrears will increase as a direct result of welfare changes - the average increase expected is 51 per cent.

The National Housing Federation report Impact of welfare reform on housing associations – 2012 Baseline report is available at housing.org.uk (click here for link).

See also BBC News 'Evictions warning over housing benefit reforms' on the BBC website (click here for link).

Increase in social security appeals

According to a press release issued on 17 January 2013, Citizens Advice Bureaux (CAB) saw 450,000 people with employment and support allowance problems in 2012, representing an increase of 67 per cent on the previous year.

Citizens Advice also estimates that 80 per cent of appeals against work capability assessment decisions were successful where the claimant received specialist CAB advice and was represented.

See 'Disability benefit problems soar by 67%' on the Citzens Advice website (click here for link).

The 'Quarterly Tribunals Statistics - 1 July to 1 September 2012', published by the Ministry of Justice in January 2013 sets contains the following figures:

  • The number of social security appeals received was 119,000 (representing 58 per cent of cases received by all tribunals, e.g. immigration, employment etc).
  • This was a 31 per cent increase when compared with the same quarter for the previous year, and was mainly as a result of the increased number of employment and support allowance (ESA) appeals (a 69 per cent increase).
  • The number of social security appeals disposed of was 113,400, an increase of 1 per cent compared to the July to September quarter of 2011.
  • A total of 42 per cent of ESA appeals were found in favour of the claimant.

The Quarterly Tribunals Statistics - 1 July to 1 September 2012 and associated tables are available from www.justice.gov.uk (click here for link).

428,000 less people will be entitled to the higher rate of assistance with mobility needs under PIP than under DLA

According to a report by the campaign group for disabled people 'We are Spartacus' issued on 14 January 2013, 428,000 less people will be entitled to higher rate of assistance with mobility needs under the personal independence payment (PIP) than under disability living allowance (DLA). In 'Emergency Stop', the group highlights that:

  • the new benefit is designed to reduce spending on disability benefits by 20 per cent, and says that, according to figures in the DWP's PIP impact assessment, 428,000 less people will be entitled to the higher rate of assistance for mobility needs than are currently entitled under DLA.
  • under the draft PIP regulations, eligiblity to the higher rate of assistance with mobility needs will be limited to those who can walk no more that 20 metres, rather than to those who are 'virtually unable to walk' as at present (often interpreted as meaning unable to walk more than 50 metres).
  • the effect of the changes on the Motability scheme, it is estimated that the current 600,000 claimants who use the scheme could be reduced by 160,000 by 2018.

"Emergency stop" is available at wearespartacus.org.uk (click here for link).


In R (Knowles) v Secretary Of State for Work and Pensions [2013] EWHC 19 (Admin) (Hickinbottom J) the Court held that the differential treatment of Romani Gypsies under the Housing Benefit scheme was objectively justified. The two claimants who were Romani Gypsies, had been living in caravans on a council-owned caravan site - and had all of the rent paid by housing benefit - but, in 2009, they moved to a privately owned gypsy and traveller site due to anti-social behaviour on the council-owned site. The rent charged to both claimants was £80 per week (excluding a £5 water charge) but, because the caravan site was a privately owned gypsy and traveller site, the claimants' housing benefit fell to be determined on the basis of a rent assessment by a rent officer.

On the basis of that assessment, housing benefit of £36.13 was awarded, leaving a considerable shortfall between the contractual rent and the housing benefit award. As a result of having to meet this shortfall the claimants contended that they were suffering hardships which would eventually lead to their eviction. Since, they submitted, they would be unable to remain at the site they would therefore be unable to carry on the traditional way of life they wished to follow.

Both claimants then applied for a judicial review and argued that under article 14 ECHR, the situation of Gypsies and Travellers on private sites (whose HB is assessed without account being taken of the additional costs of their sites) is adversely differential and prima facie discriminatory, when that situation is compared with: (i) non-Gypsies and Travellers on private sites (who do not have such additional costs) and/or (ii) the situation of Gypsies and Travellers on public sites (who recover full HB reimbursement of their rent). Hickinbottom J said that on the assumption that Gypsies and Travellers have increased accommodation costs, then the claim was properly put on the basis of Thlimmenos. The Judge however was unconvinced that the additional costs were attributable to accommodation costs (or fell within the scope of eligible rent under the HB scheme). The Judge was prepared to proceed on the assumption that there were such additional costs, but having considered a number of factors, Hickinbottom J held that any differential treatment of Gypsies and Travellers on private sites was objectively justified and that the claim therefore failed (click here for judgment).

In R (Nicholas) v Upper Tribunal (Administrative Appeals Chamber) and the Secretary of state for Work and Pensions [2012] EWHC 2724 (Admin) (Haddon-Cave J) the court considered whether a First-tier Tribunal (FTT) had acted fairly in not adjourning the hearing to obtain previous favourable Personal Capability Assessment (PCA) reports of an unrepresented claimant. The claimant was awarded incapacity benefit in 2004. She then attended a number of personal capability assessments (PCAs) from 2005 to 2007 that all confirmed that she was not fit for work. However, a new PCA in 2008 found her her fit for work and she appealed the decision. At the start of the hearing the FTT told the claimant (who was unrepresented) that it did not have the documents relating to her 2005 to 2007 PCAs and that it could adjourn if necessary to obtain them but the claimant declined its offer. The FTT upheld the decision that she was fit for work the claimant sought permission to appeal to the Upper Tribunal but this was refused. The claimant then sought judicial review of this refusal in the High Court on the grounds that: -

  • it was unfair, as she was unrepresented and might not, have known the potential significance of earlier PCAs and the merits of any adjournment to obtain them;
  • the FTT acted unfairly because they effectively deprived her of a fair and proper consideration of the merits of her case in breach of the overriding principle that a tribunal should act “fairly and justly” (Part 1 of the Tribunal Procedure (First-tier Tribunal)(Social Entitlement Chamber) Rules 2008); and
  • the FTT failed first to consider itself whether to adjourn the matter in order to obtain the previous PCAs and that if they had done so they would have concluded that they should as the previous PCAs contained potentially valuable material that would inform them as to the true merits of her case.

Refusing the claim Haddon-Cave held that (i) there was nothing unfair about the FTT's approach of leaving the question of an adjournment to the claimant, (ii) there was no obvious or compelling reason why the FTT should have thought it was necessary to see the earlier PCAsand; (iii) even if it could be said that there was any unfairness by the FTT, or that the FTT should have advised or cautioned the Claimant in some way as to the previous PCAs, this case did not come close to satisfying the test in Cart, namely a wholesale "collapse" of fairness (click here for judgment).

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