2013 04 Welfare Benefits

Wednesday 1 May 2013

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Waiting time for ESA appeals

According to a response to a written question in Parliament, there was a 17.4 weeks average waiting time for disposal of WCA appeals between April and December 2012. According to the reply, the average waiting times from receipt of an employment and support allowance appeal at HMCTS to disposal were: -

2009/2010 - 12.6 weeks;

2010/2011 - 19.4 weeks;

2011/2012 - 22.9 weeks; and

April to December 2012 (the latest period for which figures are available) - 17.4 weeks.

Mrs Grant, the Under Secretary of State for Justice, said these figures reflect the fact that the number of appeals received by the Social Security and Child Support Tribunal has risen significantly from 229,100 in 2007/2008 to 453,719 between January and December 2012. Click here for extract from Hansard.

AJTC Chairman Speaks Out

In a letter to the Secretary of State for Work and Pensions Iain Duncan Smith, dated 11 April 2013, the Administrative Justice and Tribunals Council (AJTC) Chairman Richard Thomas outlined a number of areas of concern about the government's welfare reforms including:

  • in relation to mandatory reconsideration before appeal -
  • absence of a time limit for mandatory reconsideration which could delay appeal rights indefinitely;
  • the growing inconsistency in the emerging arrangements for managing council tax reduction appeals in England, Scotland and Wales;
  • a 'postcode lottery' of localised social fund provision in addition to a considerable regional variation in arrangements for giving appeal rights to those whose claims are refused.

Mr Thomas's letter to Iain Duncan Smith is available from the AJTC website (click here)..

GP report surge in request for letters of support

According to GPonline, Local Medical Committees (LMCs) across the country have reported a surge in patients asking for letters of support, with some LMCs producing posters and letters informing patients not to ask GPs to support their appeals.

Commenting on the increased workload, deputy chair of the General Practitioners Committee, Dr. Richard Vautrey, said -

'GPs are seeing an increase in patients asking for letters to support a variety of benefit appeals. This is an unnecessary additional workload on already overstretched practices and GPs shouldn't have to pick up the pieces created by the government's failure to invest properly in independent health assessments as part of the benefit changes.'

A Birmingham LMC poster is reported to read -

'GPs provide medical care to their patients and are not in a position to administer nor to police the benefits system. It is not appropriate for the GP to be asked for letters of support or letters to confirm housing or care needs.'

Click here for story “Benefit changes lead to surge in GP workload” on GPonlineck

New Guidance on DHPs

The DWP has issued new guidance to local authority housing benefit staff in relation to discretionary housing payments: ‘Discretionary Housing Payments Guidance Manual Including Local Authority Good Practice Guide’ (April 2013). The guidance takes effect from 1 April 2013, and replaces the previous guidance issued in March 2011. The guidance has been updated to reflect amendments to the Discretionary Financial Assistance Regulations which ensure the scheme covers the introduction of Universal Credit and abolition of council tax benefit from April 2013. The good practice guide offers advice on how DHPs can be used to provide support to claimants affected by some of the key welfare reforms, including: (i) introduction of the benefit cap; (ii) removal of the spare room subsidy in the social rented sector; and (iii) reductions in local housing allowance. Click here for link on DWP website.

In 'Implementation of welfare reform by local authorities' published on 3 April 2013, the Communities and Local Government Committee identifies four key areas that it believes will be crucial to the successful implementation of the welfare reforms that are being implemented from April 2013 onwards: –

  • Interdepartmental working – including the provision of spendingck spending data on the social fund, to allow local decisions to be made in an informed way. Central Government can also do more to get the national aspects of the changes—the scale and timetable and where to get advice—across to the public and claimants.
  • Cumulative financial impact –including assessing the cumulative impact of the entire programme on local authorities' resources.
  • Housing support direct to claimants –'including the cost to housing associations and local authorities of providing support and information to tenants and the need to ensure that the financial viability of housing associations will not be damaged by the welfare reforms.
  • Potential for fraud in universal credit IT systems.

Click here for ‘Implementation of welfare reform by local authorities’ available on the parliament website.

Overlaping impact of Welfare Reform cuts

A new analysis, published on 4 April 2013 by the New Policy Institute (NPI), considers the cumulative effects of three reforms coming into force in April this year - the replacement of council tax benefit by localised council tax support; the 'bedroom tax'; and the benefit cap.

NPI says that estimated impacts that have been published so far deal with the scope and depth of each reform on its own - rather than estimates of the extent to which families are affected by more than one reform - and that to remedy this it has produced estimates of the extent of these overlaps, based on official data and building on previous single estimates. NPI’s key findings include that: –

  • 2.6m families (8 per cent of families in the UK) are affected by at least one of the three 'absolute benefit cuts'; and that
  • just under half a million families are affected by more than one of the changes;
  • the largest group is the 2m families that have seen their council tax benefit cut ;
  • of the 660,000 families hit by the 'bedroom tax', most of them (440,000) have also had their council tax benefit cut as well;
  • those affected by both the 'bedroom tax' and the change to council tax benefit now have on average £16.90 less income a week - this is 20 per cent higher than the individual bedroom tax cut and five times higher than the individual council tax benefit cut; and
  • almost two thirds (63 per cent) of the 2.6m families affected by an absolute cut in benefit have also seen a fall in real terms to other benefits.

The NPI also concludes that in failing to consider the overlap between the benefit cuts, the DWP has seriously underestimated the impact that its reforms are having on individual households.

Click here for the NPI report: ‘How many families are affected by more than one benefit cut this April’ available from npi.org.uk

Impact of Welare Reform

In a new report published 11 April 2013, 'Hitting the poorest places hardest - the local and regional impact of welfare reform',Sheffield Hallam University provides an estimate of the effect of welfare reforms in each of the UK's 379 local authority areas, based on official statistics such as the Treasury’s estimates of the financial savings, government impact assessments, and benefit claimant data.

Key findings of the report include: –

  • when the present welfare reforms have come into full effect they will take nearly £19bn a year out of the economy - this is equivalent to around £470 a year for every adult of working age in the country;
  • the biggest financial losses arise from reforms to incapacity benefits (£4.3bn a year), changes to tax credits (£3.6bn a year) and the 1 per cent up-rating of most working-age benefits (£3.4bn a year);
  • housing benefit reforms result in more modest losses – an estimated £490m a year arising from the ‘bedroom tax’ for example – but for the households affected the sums are nevertheless still large;
  • some households and individuals, notably sickness and disability claimants, will be hit by several different elements of the reforms;
  • the financial impact of the reforms varies greatly across the country - at the extremes, the worst-hit local authority areas lose around four times as much, per adult of working age, as the authorities least affected by the reforms;
  • the UK’s older industrial areas, a number of seaside towns and some London boroughs are hit hardest - much of the south and east of England outside London escapes comparatively lightly;
  • as a general rule, the more deprived the local authority, the greater the financial hit; and
  • a key effect of the welfare reforms will be to widen the gaps in prosperity between the best and worst local economies across the UK.

Click here for the report ‘Hitting the poorest places hardest - the local and regional impact of welfare reform’ available from www.shu.ac.uk

Case-law

R (Sanneh) v Secretary of State for Work and Pensions and Anor[ [2013] EWHC 793 (Admin) (Hickinbottom J), concerns a third country national (from Gambia) who contends that she has a derived right to reside as the primary carer of her dependent daughter who is a British citizen, based on Ruiz Zambrano v Office National de l'Emploi (C-34/09). The Claimant who is a lone parent, and unemployed, made various applications for mainstream social security benefits, namely income support, child tax credit and child benefit, which were refused by the Defendants. The Claimant exercised her right of appeal against those decisions. The judicial review is of the Defendants' refusal to make interim payments of income support, child benefit or child tax credit pending the outcome of the statutory appeals.

It was submitted on behalf of the Claimant that the failure of the Defendants to make the interim payments of benefit puts her daughter's rights as an EU citizen to reside in the United Kingdom in jeopardy, and that the court has an obligation under EU law to protect those rights in the interim (R v Transport Secretary ex parte Factortame Ltd (No 2) [1991] AC 603, and that it was no answer to say that the Zambrano principle did not apply because the Claimant via her daughter could access support from the Council under section 17 of the Children Act 1989, given the availability of mainstream benefits.

Dismissing the claim Hickinbottom J held that the claim failed because the Claimant could not show that the failure to pay her benefits pending the ultimate resolution of her entitlement put her daughter's rights as an EU citizen to reside in the United Kingdom in jeopardy. The Judge also rejected the submission that the Court is bound to leave out of account section 17 support:

"The Council, as much as the Secretary of State and HMRC, is an organ of the state. I well appreciate that section 17 of the Children Act 1989 was not designed for the long-term accommodation of children and their carers, and that the readily available housing stock to satisfy a local authority's section 17 obligation is not ideally suited to long-term accommodation. But this claim is concerned with a temporary situation (whilst the Claimant's entitlement to benefits is determined), and, whilst the Council may consider it is less than ideal that they have to bear the economic burden of ensuring the Claimant and her child are not destitute and are not placed in a position in which they would be compelled to leave the country, any issue as to which authority should bear that burden is not a matter for this court in this case." (At para [102]).

As a result, Hickinbottom J says that he is quite satisfied that the right of the claimant's daughter as an EU citizen to reside in the territory of the EU was not in jeopardy, and would not be in jeopardy in the period during which the claimant's entitlement to the benefits would be determined, and that: –

'In those circumstances, EU law is simply not engaged at all: there is no EU law right that requires the protection of this court, now.' (paragraph 103)

Hickinbottom J added that he would leave the question of the issue of interim relief under Factortame open, to be decided in an appropriate case, i.e. in a case where EU law is engaged, and EU rights are in jeopardy. Click here for judgment.

In MB v Wychavon D.C. [2013] UKUT 67 (AAC),the claimant was in receipt of housing and council tax benefit (HB/CTB) when he received a lump-sum divorce settlement of £25,000. The claimant used £20,000 of it to purchase an interest in a property owned by his mother and other members of his family. The claimant informed the LA of his interest. The LA decided that he was no longer entitled to HB/CTB because he had capital of £18,000, calculated on the basis that the property was worth £200,000, and his 10% share was therefore worth £20,000, less 10% for expenses of sale.

The claimant’s appeal was not processed and passed to the first-tier tribunal for nearly a year. The Judge criticised the LA for the long delay:

'11. The Local Government Ombudsman has made it clear in Complaint No 01/C/13400 against Scarborough BC that authorities should aim to refer all appeals to HMCTS within 28 days. As I also pointed out in CH/3497/2005, a claimant is entitled under Article 6 of the European Convention on Human Rights to have his or her appeal heard within a reasonable time, and this could be particularly important in housing benefit cases where a delay could cost a tenant his home. It is unlawful for a local authority or any other public authority to act (which includes a failure to act) in a way which is incompatible with a Convention right (Human Rights Act 1998, s.6(1), (6)). The conduct of Wychavon in this case was wholly unacceptable and inconsistent with the proper conduct of this appeal.

12. In addition, it appears to me that taking the administrative step normally required to commence proceedings before the tribunal is a duty of the relevant council which now falls within regulation 2(4) of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008 which provides that parties must help the tribunal to further the overriding objective and co-operate with the tribunal generally. The overriding objective is defined in regulation 2(1) as dealing with cases fairly and justly and regulation 2(2) provides that this includes ensuring so far as practicable that the parties are able to participate fully in the proceedings and avoiding delay so far as compatible with proper consideration of the issues. A failure for almost a year to take the simple administrative step needed to commence the proceedings, the tribunal already having jurisdiction (R(H) 1/07) clearly prevented the claimant from participating in the proceedings during that time and caused serious delay which was not compatible with the proper consideration of the issues.'

On the substantive issue of the market value of the claimant’s beneficial interest in the property, the Judge decided that the maximum a willing buyer would have paid following a quick sale was £8,000, which after deduction of 10% expenses of sale left £7,200, taking into account the trust, and the interests of the other family members and their likely opposition to a sale (R(JSA)1/02 and R(IS)5/07). Click here for transctipt.

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