New regulations on EEA nationals and jobseekers
New regulations have been issued which provide for the end of transitional controls on Romanian and Bulgarian workers and which tighten the right to reside provisions for unemployed EEA migrants. The Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2013 (SI.No.3032/2013) (Click here) which amend the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) comes into force from 1 January 2014. The changes include an absolute limit of six months for the retention of worker status for an EEA national who is a retained worker and who had worked for less than 12 months before becoming involuntarily unemployed.
The habitual residence test has been amended for income-based jobseeker’s allowance so that a claimant (who is not in the exempt group) cannot be treated as habitually resident in the UK, the Channel Islands, the Isle of Man or the Republic of Ireland unless that claimant has been living in any of those places for the past three months. The change was introduced by the Jobseeker’s Allowance (Habitual Residence) Amendment Regulations 2013 (SI 3196/2013) (Click here). The DWP has also issued official guidance in DMG Memo 28/13 (Click here).
Delay in Universal Credit for those on ESA
Speaking in the House of Lords on 10 December 2013, the Minister for Welfare Reform Lord Freud confirmed that existing employment and support allowance (ESA) claimants will not be transferred to universal credit until after 2017. It is estimated that 600,000 to 700,000 claimants will be left on ESA.
Lord Freud's comments on the transfer of ESA claimants to universal credit are available from Hansard – click here
Delays in processing PIP applications for terminally ill claimants
Speaking at a Work and Pensions Committee evidence session on personal independence payment (PIP) implementation on 11 December 2013 the DWP Benefits Director Jason Feeny acknowledged 'unacceptable' delays in processing PIP applications for terminally ill claimants. The Minister for Disabled People Mike Penning told the Committee that he wanted terminally ill claimants to be able to make a claim and receive payment within seven days but said he was reluctant to introduce a target for processing claims.
Source – ‘Personal independence payment delays 'unacceptable', says top civil servant’: guardian.co.uk dated 11 December 2013 – click here
New tribunals statistics
In 'Quarterly Tribunals Statistics for the period July to September 2013', published on 12 December 2013 the figures show that:
- in 18 per cent of JSA cases, 40 per cent of DLA cases and 43 per cent of ESA cases, the original decision was revised in favour of the claimant;
- at 59 per cent of the total, ESA still comprises the highest number of appeals - with JSA at 18 per cent and disability living allowance (DLA) at 11 per cent - and that JSA appeals had increased the most (75 per cent) since July to September 2012.
Quarterly Tribunals Statistics for the period July to September 2013 is available from gov.uk – click here
Review of WCA – year four
In the foreword to 'An Independent Review of the Work Capability Assessment – year four', published on 12 December 2013, Dr Litchfield states that the process of determining fitness to work under the WCA was taking too long and decision making overall was not “working as well as intended”.
'The Independent Review of the Work Capability Assessment - year four' is available from gov.uk – click here
On 13 December 2013 the DWP published 'Statistics to support the fourth independent review of the WCA' – click here
National Audit Office (NAO) Report on the Council Tax Support Schemes
A report published on 13 December 2013 by the National Audit Office (NAO) says that not all local authority council tax support schemes will achieve the objectives outlined by the Department for Communities and Local Government (DCLG). The NAO report states:
- that 71 per cent of local authorities have introduced schemes that require working-age claimants to pay at least some council tax regardless of income, and
- that 41 per cent have no protections for vulnerable groups, other than those mandated for pensioners and war pensioners.
For more information see Council Tax Support from the NAO website - click here.
Bedroom Tax Update
According to a survey published on 17 December 2013 by the Disability Benefits Consortium (DBC), more than one in ten disabled people affected by housing benefit changes have needed to use food banks. Setting out the results of a survey of nearly 4,000 disabled people, DBC says that, of those hit by housing benefit reforms – such as the bedroom tax – 12 per cent have needed to use food banks. For more information, see ‘Food banks become lifeline for disabled people as benefit changes hit’ available on the DBC website – click here.
According to statistics published by the DWP on 20 December 2013, covering the period from April to September 2013, two thirds of discretionary housing payment (DHP) awards are being made in relation to the bedroom tax. See ‘Use of Discretionary Housing Payments: Analysis of mid-year returns from local authorities’ available from gov.uk – click here.
In R(MM) v Secretary of State for Work and Pensions  EWCA Civ 1565, (Maurice-Kay, Ellias and Vos LJJ) the Court of Appeal rejected the DWP's appeal against the Upper Tribunal’s decision that failure to obtain further medical evidence breaches the Equality Act duty. The Upper Tribunal had decided (in  UKUT 259 (AAC)) that the first limb of the statutory test set by section 20(3) of the Equality Act 2010 was satisfied because the practice of not obtaining further medical evidence had the result that in a significant number of claims by claimants with mental health problems were placed at a substantial disadvantage, and made directions that the Secretary of State investigate the reasonableness of an evidence-seeking adjustment and present that evidence to the Upper Tribunal.
The Secretary of State appealed the Upper Tribunal’s decision to the Court of Appeal on the grounds that: (i) the Upper Tribunal had no jurisdiction to grant the declaration; (ii) it was not open to the Tribunal to conclude that claimants with mental health problems were in fact placed at a substantial disadvantage; and (iii) the Upper Tribunal misdirected itself as to the meaning of 'substantial disadvantage'. Elias LJ (giving the lead judgment) rejected all three grounds. However, Elias LJ accepted the Secretary of State's fourth and distinct ground of appeal that the Upper Tribunal went beyond its judicial remit when it issued directions requiring the Secretary of State to carry out an investigation and to disclose specified information at the adjourned hearing. Elias LJ held that it was not the duty of the Upper Tribunal to determine for itself what constitutes a reasonable adjustment or to supervise the process of evidence gathering. The Court therefore rejected the appeal on the first three grounds but quashed the directions issued by the Upper Tribunal on the nature of the remedy required under the 2010 Act.
In Obrey & Ors v The Secretary of State for Work And Pensions & Anor  EWCA Civ 1584, (Laws, Sullivan & Sharp LJJ) the Court of Appeal considered whether the housing benefit 52 weeks temporary absence rule unlawfully discriminated against claimants detained under the Mental Health Act 1983. The three claimants all had serious mental health problems and were detained in hospital under the 1983 Act for a period in excess of 52 weeks. The local authorities responsible for payment of their housing benefit decided that, after 52 weeks, they were no longer eligible for housing benefit by virtue of regulation 7(16) of the Housing Benefit Regulations 2006 (SI 2006/213). The claimants appealed to a First-tier Tribunal on the basis that the 52 weeks rule unlawfully discriminated against them as mental patients, and in particular as mental patients detained under section 3 of the 1983 Act, because detained mental patients are more likely than other hospital patients to be resident in hospital for more than 52 weeks. The FtT found that there was indirect discrimination and that, because the discrimination was 'disproportionate and unjustified', it was in breach of the claimants' rights under Article 14 of the ECHR. However, the Upper Tribunal ( UKUT 489 (AAC), Judge Lloyd) allowed the Secretary of State's appeal against that decision and, having set aside the FtT’s decision, substituted a decision that, whilst the 52 weeks rule did indirectly discriminate against the mentally ill, the discrimination was justified because the rule was not 'manifestly without reasonable foundation'. The claimants appealed to the Court of Appeal.
The claimants submitted that the UT judge was wrong to hold that:
- any discrimination that might occur after the expiry of a 52 week period could not be found to be "manifestly unreasonable" as he treated the "bright line" rule as justified when it failed to leave any room for an individualised assessment based on the facts of a particular case, by reference to Kiyutin v Russia  53 EHRR 26 and AM (Somalia) v Entry Clearance Officer  EWCA Civ 634;
- the focus of the purpose of justification was not on the 52 weeks rule in the housing benefit regulations, otherwise, the judge failed to subject the other forms of assistance available to the long-term mentally ill after discharge to a sufficiently detailed scrutiny;
- the discretion which the claimants suggested should be introduced into the regulations would be of a "different order" to other discretions conferred in the housing benefits context, and would give rise to problems of a different order to those considered in Burnip.
Sullivan LJ (giving the leading judgment) noted that the claimants’ appeal appeared to proceed on the assumption that the Court should, in effect, conduct a rehearing of the justification issue when the right to appeal is limited to a point of law arising from the Upper Tribunal's decision (Tribunals Courts and Enforcement Act 2007, s.13(1)). The Court rejected a submission that the Upper Tribunal's conclusion on justification did not fall within its specialist competence. Sullivan LJ went on to say that the question of whether the differential effect of a particular rule in the benefits system is, or is not, 'manifestly without reasonable foundation' is precisely the kind of issue that is best left for evaluation and judgment by a specialist appellate tribunal with a particular expertise in the field of social security law. The Court went on to conclude that the claimants had not identified any error of law in the Upper Tribunal’s decision, saying that:
- the UT judge was correct to have regard to the wider statutory context. Regulation 7 sets out, in considerable detail, the circumstances in which a person is, or is not, to be treated as occupying his home and is the antithesis of a "blanket or indiscriminate" measure. The observations in Kiyutin v Russia and AM (Somalia) v Entry Clearance Officer were apposite on the facts of those two cases but they could not be "read across" to the rule in issue in the present case;
- the UT judge was entitled to conclude that in concentrating on the impact of the 52 weeks rule in isolation, the claimants were focussing on only one element of what the judge rightly described as a complicated overall structure involving many agencies. Nor was the UT judge required, as a matter of law, to enter into a detailed analysis of the effectiveness with which primary care trusts, local social services authorities, housing authorities and voluntary agencies discharge their various statutory functions in providing after-care for the long-term mentally ill when they leave hospital;
- whether the problems involved in the exercise of the suggested discretion would be of a different order to those considered in Burnip were not questions of law. They are pre-eminently questions of evaluative judgment for the expert appellate tribunal, which was entitled to accept the Secretary of State’s submissions.
Having concluded that the claimants had not identified any error of law in the Upper Tribunal’s decision the Court dismissed the appeal.
In R (HC) v Secretary of State for Work and Pensions & Ors EWHC 3874 (Admin) (Supperstone J), the High Court dismissed a challenge to the regulations excluding Zambrano carers from entitlement to social assistance. The claimant, an Algerian national, had married a British national and had two children with him, both British nationals. After the claimant and the children left the family home due to domestic violence, they were provided with temporary accommodation and small weekly subsistence payments from Oldham Council under section 17 of the Children Act 1989. The claimant's sole right to reside in the UK derived from Ruiz Zambrano v Office national de l'emploi (ONEm) C-34/09,  QB 265 and regulation 15A of the Immigration (European Economic Area) Regs 2006, (SI 2006/1003) which came into force from 8 November 2012, pursuant to the Immigration (European Economic Area) (Amendment) (No.2) Regulations 2012 (SI 2012/2560). Following the Zambrano decision, the UK government introduced the Social Security (Habitual Residence) (Amendment) Regulations 2012 (SI 2012/2587), the Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2012 (SI 2012/2588) and the Child Benefit and Child Tax Credit (Miscellaneous Amendments) Regulations 2012 (SI 2012/2612), which had the effect of excluding people whose right to reside arose from the Zambrano principle from eligibility for social security benefits, child tax credits and housing assistance.
The claimant challenged the legality of the three statutory instruments (the Amending Regulations), arguing that the blanket exclusion of Zambrano carers and their children from any social welfare assistance or entitlements from the State was unlawful as it discriminated against both the claimant and her children in relation to the enjoyment of their rights under Article 20 (citizenship) of the Treaty on the Functioning of the European Union (TFEU’)on the basis of her nationality and gender, contrary to Article 18 (anti-discrimination), and failed to take into account the best interests of Zambrano children. Further, the claimant argued that the regulations breached the public sector equality duty under section 149 of the Equality Act 2010. The court dismissed the claim holding that:
- the Amending Regulations do not directly discriminate against the claimant on grounds of her nationality as the differential treatment is based on immigration rather than nationality (Bah v UK (2012) 54 EHRR 21) (para 48);
- the reasoning in ONAFTS v Ahmed Case C-45/12 - that the anti-discrimination provisions in Article 18 of the TFEU do not apply to third country nationals seeking social assistance – apply equally to the anti-discrimination provisions in Article 21 of the Charter of Fundamental Rights of the European Union (paras 43-44);
- any discrimination – whether on grounds of nationality or gender - which exists as a result of the Amending Regulations can only be indirect and can be justified because they represent a proportionate means of protecting scarce public resources from individuals who move to, or remain in, the UK in order to take advantage of its welfare system (para 59);
- moreover, the Secretary of State could point to a range of measures under national law that fulfil the objectives of alleviating destitution and any consequential need to leave the UK, protecting the welfare of the child and responding to the particular circumstances of individual cases including: (i) the availability of section 17 support; (ii) maintenance payments from British citizen parents; (iii) the right to seek employment; and (iv) Zambrano carers are entitled to apply for leave to remain under Appendix FM of the Immigration Rules which includes a discretion to allow recourse to public funds in cases of destitution or low wages which would cause harm to the child (para 61);
- in respect of having regard to the best interests of the children of Zambrano carers, Supperstone J holds that there is no general requirement under EU law for Member States to provide parents with a particular level of support, regardless of their right to reside (para 70); and
- there is no breach of the public sector equality duty because the relevant Equality Analysis and Equality Statements show that the Defendants were aware of the differential impact on lone parents, but that regard was properly had to countervailing considerations (para 83).
Postscript on Sanneh
The claimant in HC does not suggest that she and her children will be forced to leave the UK or EU if she is not given the entitlement to social security benefits (para 37), following the ruling in R (Sanneh) v The Secretary of State for Work and Pensions & Anor  EWHC 793 (Admin). However, on 18 December 2013, Pitchford LJ granted Ms Sanneh permission to appeal against the Upper Tribunal's decision: Secretary of State for Work and Pensions v JS  UKUT 490 (AAC)) (click here for judgment), in which a claim for income support made under the pre-November 2012 regime was refused. Permission was granted to consider the question of whether the decision-maker had to wait until Ms Sanneh was driven, by her destitution, to the point where she had no choice but to leave the UK, before she could be said to have an enforceable right to reside under the Zambrano test.