Housing Systems: Combating poverty and sustaining tenancies.

Caselaw Update

Over the past few months there have been quite a few interesting decisions made by the Upper Tribunal and Court of Appeal. Here we summarise some of them –

Decision not to apply £20 uplift to legacy benefits was not unlawful

This was a big case concerning four legacy benefits, and the outcome was anticipated by many people, but unfortunately the Court of Appeal dismissed the appeal. The claimants argued that it was discrimination not to apply to the £20 uplift to legacy benefits. However, the judges felt that as the main purpose of the uplift was to help those who were claiming benefits for the first time after losing income due to the Covid-19 pandemic, there was no legal requirement to extend this to existing legacy benefit claimants. We believe that the claimants and their solicitors are now considering whether to appeal this decision to a higher court.

You can read the full judgement here 
Or, a summary from the claimant’s solicitor here 

Changes to entitlement to Bereavement Benefits

This caselaw is not new but the change of law that follows is just about to be put into effect. Currently, to be entitled to Bereavement Support Payment on the death of a partner the claimant must have been married/in a civil partnership with their deceased partner. However, on 30th August 2018 this was found to be discriminatory against children whose cohabiting parents are not married/in a civil partnership. Legislation to extend entitlement to Bereavement Support Payment to surviving parents who were not married/in a civil partnership to their deceased partner has made slow progress through parliament but is expected to be passed in the next few months. 
The legislation will apply from 30th August 2018 but anyone requesting a backdate will need to do so within 12 months of the order coming into force. It has been confirmed that claimants who made unsuccessful claims in the past but are entitled under the new rules will not be prevented from making a new claim. 

You can read the gov.uk announcement here 
Or, more on bereavement benefits here 

Time limits for appeals

Over the past few months there have been various Upper Tribunal decisions on when appeals can be made. If the claimant is appealing a decision that was an ‘official error’, or imposing a sanction or the Benefit Cap, there is no time limit. However for all other decisions, there is a one month time limit although this can be extended by a further 12 months if they were unable to make their appeal in time. This gives an absolute time limit of 13 months. For more on time limits - click here.

Can a claimant appeal the decision not to backdate their UC?
Some claimants will be entitled to a ‘backdate’ of UC when they first claim. However, the DWP’s stance has always been that the decision whether or not to do so is not appealable and therefore claimants either need to request it before a decision on their UC claim is made (i.e. within a month of claiming) or miss out. 
The Upper Tribunal ruled that this is incorrect and the decision is appealable – meaning the normal 13 month time limit applies. Additionally, a second UT ruled that if the claimant indicated on their UC claim that they met the conditions for being entitled to a backdate, it could be an official error if the decision maker did not grant one - and as an official error could be appealed at any time. 
However, we expect that the DWP will appeal these two cases so judges will probably delay making any decisions that rely on these pieces of caselaw until the full appeals process has been played out. Claimants who believe they should have received a backdate to a UC claim they made over a month ago should seek expert advice; they may want to lodge a Mandatory Reconsideration.

For the first decision which said the decision not to backdate is appealable AM v SSWP (UC) - click here
For the second decision which said that the decision maker should consider any relevant information on the claim for when deciding whether to backdate the claim WB v SSWP (UC) - click here
For more on when a claim can be backdated - click here

What happens when a ‘qualifying benefit’ is reinstated?
The award of some benefits is dependent on someone receiving a ‘qualifying benefit’ (e.g. to receive Income Support as a carer, the person they are caring for must be receiving a disability benefit). If a ‘qualifying benefit’ is ended, the benefit that is dependent on it will also end. However, if the decision to end the ‘qualifying benefit’ is successfully appealed and it is reinstated, the benefit that depended on it can also be reinstated. 
Recently issued DWP Guidance following an Upper Tribunal decision explains that the decision to end the dependent benefit was not incorrect at the time it was made so it was not an ‘official error’. This means that the normal time limits for appealing the decision apply ie 13 months.
The problem here is that an appeal against the decision to end the ‘qualifying benefit’ can take longer than 13 months. In these cases the claimant should make sure they lodge an appeal against the decision that ended the ‘dependent’ benefit within 13 months and request that their appeal is not heard until the decision on the ‘qualifying benefit’ has been made.

Note – if the claimant is appealing the decision to end a legacy benefit and has since gone onto claim Universal Credit, their legacy benefit can only be reinstated up to the day before they made their claim for UC.
Guidance here


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