2013 11 Welfare Benefits

Sunday 1 December 2013

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DWP publishes response to SSAC recommendations on new ‘size criteria’ regulations

On 15 November 2013, the DWP published its response to recommendations by the Social Security Advisory Committee (SSAC) on the benefit gateway for disabled children to be allowed an additional bedroom under the housing benefit and universal credit ‘size criteria’ regulations.

Whilst the regulations provide for an additional room for children who are entitled to the care component of disability living allowance at the higher or middle rate (where the local authority or universal credit decision maker is satisfied that the child is not reasonably able to share a room), the SSAC has recommended that –

  • the benefit gateway be extended to include children entitled to the lower rate of the care component of DLA; and
  • the legislation be amended to include an ‘exceptions process’ for those who do not satisfy the gateway but who nevertheless are able to satisfy the authority that it would be inappropriate for the disabled child to share a bedroom.

However, in its response, the DWP says that the Committee had sought to extend the scope of the size criteria policy beyond the ‘narrow consideration’ of the ruling in Gorry [2012] EWCA Civ 629. In rejecting the SSAC recommendations, the DWP also said that discretionary housing payments are available to support vulnerable groups affected by the size criteria that fall outside the benefit gateway in the regulations.

The SSAC report and the DWP's response are available from official-documents.gov.uk – Click here.

The new regulations were laid before Parliament on 7 November 2013, and are due to come into force from 4 December 2013:

Housing Benefit and Universal Credit (Size Criteria) (Miscellaneous Amendments) Regulations 2013 (SI 2013/2828) - Click here

Rent Officers (Housing Benefit Functions) Amendment (No. 2) Order 2013(SI.2013/2827) - Click here

New Research on EEA migrants

On 5 November 2013, the Centre for Research and Analysis of Migration (CReAM) at University College London published new research on EEA migrants in the period 2001-2011 – ‘Recent immigration to the UK: New evidence of the fiscal costs and benefits’ (click here).

The new research report: ‘The Fiscal Effects of Immigration to the UK’ (click here) highlights that, over the decade from 2001, recent EEA immigrants - those who arrived after 1999 -

  • were 45 per cent less likely to receive state benefits or tax credits than UK citizens;
  • on average contributed 34 per cent more in taxes than they received in benefits; and
  • were 3 per cent less likely to live in social housing than UK citizens.

For more information see today's CReAM press release: ‘Recent immigration to the UK: New evidence of the fiscal costs and benefits’ – Click here

David Cameron sets out further restrictions on benefits for EU migrants

In an article for the Financial Times on 26 November 2013, Prime Minster David Cameron announced a number of measures designed to ensure that “no-one can come to this country and expect to get out-of-work benefits immediately”, including

  • no newly arrived EU jobseekers will be able to claim Housing Benefit;
  • no EU migrant will be entitled to out-of-work benefits for the first three months;
  • from January 2014, no EU migrant will be able to claim jobseeker's allowance for more than a maximum of six months unless they can prove that they have a genuine prospect of employment;
  • a new minimum earnings threshold will be introduced before benefits such as income support can be claimed; and
  • any EU national sleeping rough or begging will be deported and barred from re-entry for 12 months “unless they can prove they have a proper reason to be here, such as a job”.

‘Migration plan could make UK look nasty - EU commissioner’: bbc.co.uk – Click here

'EU migrants: David Cameron sets out more benefit restrictions': guardian.co.uk - Click here

580,000 sanctions applied to JSA claimants under regime introduced in October 2012

According to figures published by the DWP on 6 November 2013, a total of 580,000 sanctions have been applied to jobseeker's allowance (JSA) claimants under the regime introduced on 22 October 2012. “Jobseeker’s Allowance and Employment and Support Allowance sanctions: decisions made to June 2013” (click here) confirms that: -

  • more than 11,000 sanctions have been applied under the employment and support allowance (ESA) sanctions regime introduced on 3 December 2012;
  • of those that received an adverse decision under the new sanctions regime, 75 per cent of JSA claimants and 85 per cent of ESA claimants did so for the first time; and
  • that 120 disabled people who had been receiving JSA have been given a 3-year fixed duration sanction since October 2012.

Responding to the new figures, Tim Nichols, a spokesperson for Child Poverty Action Group, said:

'The sanctions regime is an unfolding scandal that is doing tremendous damage to jobseekers and disabled people, even when they are trying to do the right thing.... Claimants are finding it increasingly confusing to understand what the sanctions regime expects of them, and many sanctions appear to happen when people are trying to do the right thing, but they just cannot find their way through the unhelpful and chaotic bureaucracy of Jobcentres and the Work Programme. The result is demand on foodbanks surging from people whose claims are stopped for weeks, months and even years... Instead of helping people, many claimants are finding that Jobcentres are becoming like a Kafkaesque nightmare. The government should urgently investigate what the consequences are for the children and families of people being failed by this cruel regime.”

For CPAG Press Statement - Click here.

Independent review of jobseeker'sck allowance sanctions

On 11 November 2013, the DWP announced that an independent review of jobseeker's allowance (JSA) sanctions would be carried out by Matthew Oakley, a member of the Social Security Advisory Committee (SSAC). Mr Oakley has requested that responses be focused on the following questions -

  • to what extent do claimants understand that when they are referred to a 'back-to-work' scheme (such as the Work Programme) their benefit may be sanctioned if they don't take part?
  • to what extent does a claimant’s failure to meet their conditions arise from them not having a sufficient understanding of what is expected, and are there ways in which this could be made clearer to them?
  • do sanctioned claimants understand why they have been sanctioned?
  • do sanctioned claimants feel informed throughout the sanctions process?; and
  • to what extent are sanctioned claimants aware of the help available to them from Jobcentre Plus, of how to appeal a decision or how to seek help through hardship payments?

The deadline for responding to the review is 10 January 2014. For more information see ‘Jobseeker’s Allowance sanctions: independent review’from gov.uk – Click here.

Disability Benefits Consortium calls on government to exempt disabled people and carers from bedroom tax

In a letter to the Secretary of State for Work and Pensions Iain Duncan Smith dated 26 November 2013, the Disability Benefits Consortium (DBC) called on the government to exempt disabled people and carers from the bedroom tax. DBC highlights recent government figures showing that more than half a million people have been affected by the tax, and says that, of those -

  • two thirds of those affected are disabled;
  • 100,000 live in specially adapted properties; and
  • around 230,000 claim disability living allowance.

DBC goes on to say -

“Before the policy was implemented, we warned that it would hit disabled people and carers for whom additional accommodation was essential, not spare.

We have been deeply frustrated at reports that disabled people and their families are protected from this policy. The stark evidence since the policy was implemented in April clearly shows they are not. It is hitting disabled people who need an extra room for essential home adaptations or equipment which enable them to live independently; seriously or terminally ill people who sleep on hospital beds and cannot share a room with a partner who cares for them and parents caring 24/7 for disabled children who need a room for a care worker to stay in to give them a night off from caring. None of these groups are exempt and our organisations are seeing the devastating impact it is having on those who now face a shortfall in their rent as a result of the changes.

9 in 10 disabled people and three quarters of carers affected are now having to cut back on food and heating to pay the shortfall in rent they face as a result of this policy. Our organisations are hearing time after time from disabled people, carers and families of disabled children who are being forced deeper and deeper into debt and falling behind on their rent, putting them at risk of eviction.

Discretionary payments are not working. Our research shows that only a minority of disabled people and carers receiving support from the fund the Government set aside to cover the shortfall in rent for disabled people. Those who are unable to access discretionary support are being hit with an average bill of £700 a year.

Disabled people and carers are being left in constant fear of losing their homes. Even those who have received discretionary payments to cover the shortfall in rent now are being left with a deep sense of insecurity – knowing they may have to reapply for temporary support for the rest of their lives just to stay in their own homes. The government must act now to exempt disabled people and carers from this policy.”

The letter to Iain Duncan Smith is available from the Disability Rights UK website – Click here.

Cases

The High Court in R(JS & Ors) v Secretary of State for Work and Pensions & Ors [2013] EWHC 3350 (QB) (Elias LJ, Bean J) dismissed a challenge to the benefit cap made by a group of three single parent families. The common theme in each case being that, for various reasons, they were not in a position to work; and they had cultural and support reasons why they did not want to move any distance from their current homes based in London. The challenge was to the regulations introducing the benefit cap (the Benefit Cap (Housing Benefit) Regulations 2012, (SI 2012/2994). In particular, the inclusion of Child Benefit, Child Tax Credit and Housing Benefit in the list of prescribed benefits or alternatively the failure to include large families among the exceptions to the cap. The claim contained four grounds of challenge:

  1. Failure by the Secretary of State to comply with his Public Sector Equality Duty imposed by Section 149 of the Equality Act 2010;
  2. Discrimination on various grounds contrary to Article 14 of the ECHR when taken with Article 8 and/or Article 1 of Protocol 1 (A1P1);
  3. Breach of the claimants’ rights under Article 8 of the ECHR and/or the Secretary of State’s obligations under the United Nations Convention on the Rights of the Child (“UNCRC”) to ensure that the best interests of children are a primary consideration “in all actions concerning children”, including those taken by legislative bodies;
  4. Irrationality and/or unreasonableness at common law.

The claimants submitted that:

  • The Secretary of State had failed to ensure that the best interests of children were a primary consideration when formulating the policy.
  • The Secretary of State had acted irrationally or unreasonably in failing to obtain relevant information about the impact of the scheme on single parents escaping domestic violence, and on those in temporary accommodation.
  • The benefit cap was discriminatory under Article 14 ECHR when read with Article 1 of Protocol 1 due to its adverse impact on large families and single parents.
  • Given the adverse effect on large families, it constituted indirect discrimination against certain ethnic minorities and certain religious groups because it is common knowledge that, for example, Catholics tend to have larger families.
  • The adoption of the cap involved a breach of Article 8 because of its adverse impact on family life. The reduction in Housing Benefit threatened the ability of the families to remain in their present accommodation; it may make it necessary for them to move away from London and the support networks of their families and friends; and it might result in the family being unable to remain together.
  • The benefit cap scheme was unfair because it frequently creates a dramatic and unjustified differential between those in benefit and those in work who in addition to their earnings are entitled to a range of benefits, in particular Child Benefit and Housing Benefit.
  • The Secretary of State had acted irrationally or unreasonably in failing to obtain relevant information about the impact of the scheme on single parents escaping domestic violence, and on those in temporary accommodation. In addition, it was irrational to impose the cap as a means of seeking to steer women back to work, when single parents with young families cannot meaningfully take advantage of that opportunity. In that context the claimants referred to the fact that under the current rules someone can be in receipt of Income Support and, provided he or she is caring for a child under five, does not have to look for work.

The Court rejected each of these submissions holding that:

  • In view of the Impact Assessment published in February 2011, and other similar documents, it could not be said that there was any failure on the part of the Secretary of State to appreciate the impact of the benefit cap on children (para 49).
  • The Secretary of State was well acquainted with the particular difficulties of those fleeing domestic violence and the problem of temporary accommodation. There had been extensive consultations with affected groups and an attempt to re-structure the scheme so as not to disadvantage women subject to domestic violence (paras 73, 96). Similarly, consideration was given to the possibility of exempting temporary accommodation, but the idea had been rejected on the grounds that it would undermine the objectives of the scheme (para 97).
  • The circumstances in each of the cases fell “well short” of demonstrating a breach of Article 8. Even if the cap did give rise to a breach of Article 8 in any particular case, that would not of itself invalidate the scheme (para 68).
  • It was not in dispute that the benefit cap had a disproportionate adverse impact on women; however, the court expressed reservations about the applicability of the concept of ‘a large family’ or the generalised assertion that certain religious groups have large families. It went on to hold that this did not materially add to the justification burden which the Secretary of State had to discharge(paras 74-75).
  • After taking note of the government’s stated aims in introducing the benefit cap - namely “(i) to introduce greater fairness in the welfare system between those receiving out-of-work benefits and tax payers in employment; (ii) to make financial savings where the benefit cap applies and, more broadly, help make the system more affordable by incentivising behaviours that reduce long-term dependency on benefits; and (3) to increase incentives to work” - the court concluded that the imposition of the cap could not properly be described as “manifestly without reasonable foundation“ The division of the resources of the state and the question to what extent state funds should be made available to those in need for one reason or another was “par excellence a political question” (para 85). Parliament had taken the view that a change in welfare culture was critical and that the imposition of the cap was an important element in achieving that objective. There was a need for the court “to tread with extreme caution in this area”, particularly in circumstances where Parliament had fully debated and considered many of the concerns identified by the claimants and had chosen not to make the exceptions they sought (para 86).
  • Finally, there was nothing intrinsically illogical in the Secretary of State deciding to adopt a different principle in relation to the benefit cap than had been adopted with respect to the payment of Income Support. It was not for the court to exercise its common law powers to interfere with Government decisions as to how it would allocate public funds, save very exceptionally where the method of allocation infringed some basic human right. Having found that the human rights challenge had failed, it followed that the common law challenge could not succeed (para 100).

The court made it clear that a claimant could not be regarded as intentionally homeless where the rent had become unaffordable simply through the application of the benefit cap (para 53); albeit that the obligation to house the claimant may mean that the place offered may not be where the family would like to live and was likely to be outside of London (para 54). Click here for transcript.

Note: The claimants in JS & Ors, R (on the application of) v Secretary of State for Work and Pensions & Ors (C1/2013/3305) have been granted permission to appeal by Richards LJ. The Court of Appeal hearing has a current trial window of 15 April 2013 to 15July 2014. See Hopkin Murray Beskine’s website for further details – Click here.

In HB v Secretary of State for Work and Pensions (IS) [2013] UKUT 433 (Ward, O’Connor, Wright), a Panel of three Upper Tribunal Judges considered the abolition of the backdating of income support for refugees pursuant to s.12 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004, and whether this was contrary to EU law or breached the appellant’s human rights.

The appellant had claimed asylum on her arrival in the UK in August 1997. A second claim for asylum was made in 2005. Both claims for asylum were refused. In June 2008, the Asylum and Immigration Tribunal allowed the appellant’s appeal on refugee convention grounds - due to her religious faith. The appellant was subsequently recognised as a refugee by the Secretary of State on 9 July 2008, and was granted limited leave to remain in the UK. The appellant then made a claim for income support on 24 July 2008, which was successful. But her application to backdate the income support claim was refused on the basis that regulation 21ZB of the Income Support (General) Regulations 1987 (SI 1967) on backdating had been abolished with effect from 14 June 2007. Her appeal to a tribunal was refused, but the Upper Tribunal granted permission to appeal.

The appellant argued that:

  • under the Geneva Convention on Refugees, she is entitled to the same social and economic rights as UK citizens (article 23, on public relief);
  • once she was recognised as a “refugee”, this applied for all past times that she met the conditions for being a “refugee”; given that the recognition of her refugee status is a declaratory act (R(IS) 9/98 and Khaboka [1993] Imm AR 484);
  • hence, once the appellant’s refugee status was recognised by the Secretary of State, the UK was required, as a matter of international law, to pay her income support on an equal basis with UK nationals for the past periods when she was a refugee under the Geneva Convention;
  • moreover, once the appellant was recognised as a refugee, she fell within article 28 of Council Directive 2004/83/EC (the Qualification Directive) which provides that refugees should receive the same level of social assistance as would be received by UK nationals;
  • as the Qualification Directive is part of EU law, the claim to backdate income support as someone with the status of a refugee was a directly enforceable right under EU law.

The Upper Tribunal dismissed the appellant’s argument that the Geneva Convention and the Qualification Directive had retrospective effect for the following reasons:

  • the rights under article 23 of the Geneva Convention only apply to refugees “lawfully staying” in the UK, and in the appellant’s case this only occurred at the point she was granted leave to remain in the UK: the reasoning in R(ST) v Secretary of State for the Home Department [2012] UKSC 12; [2012] 2 AC 135 applied;
  • the Qualification Directive draws a distinction between a “refugee” as defined under the Geneva Convention and “refugee status” defined as meaning the recognition by a Member State of “a ... person as a refugee”. Thus refugee status is a separate and distinct stage of a person’s qualification under the Directive;
  • article 28 of the Qualification Directive only provides for the provision of social assistance to “beneficiaries of refugee status”, and up until the point refugee status had been granted to the appellant on 9 July 2008 she was not a beneficiary of “refugee status” under the Directive;
  • this distinction between the rights of a person prior to the point she is granted refugee status (i.e. a person seeking refugee status or an asylum seeker) and the rights of a person with such a status is consistent with the fact that the European Union has provided a separate directive on the rights of the asylum seeker – Directive 2003/9/EC (the Reception Directive) – in which a basic level of support for asylum seekers is contrasted with the social assistance available to the person if and when s/he is granted refugee status: per article 28 of the Qualification Directive.

The Upper Tribunal therefore rejected the appellant’s argument on article 23 of the Geneva Convention and article 28 of the Qualification Directive having retrospective effect. The Upper Tribunal went on to dismiss the human rights challenge holding that it could not be argued that it was “manifestly without reasonable foundation” for the UK to bring its social security scheme for refugees and those seeking refugee status into line with the Geneva Convention and the Qualification Directive. Click here for transcript.

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