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Summary

The claimant was someone with limited capability for work-related activity (LCWRA) under the work capability assessment (WCA) and also a disability rights campaigner with a particular interest in social security rights. She argued that, in the 2023 consultation on reform of the WCA, the (then) Secretary of State for Work and Pensions had: (1) failed adequately to explain what the proposals on WCA reform actually were; (2) failed to explain the alleged true rationale for the proposals; (3) failed to provide adequate information about the impact of the proposals; and (4) failed to provide sufficient time for consultees to respond. 

In the High Court, Mr Justice Calver granted the declaration that the consultation was unlawful. He agreed (in essence) with the claimant’s arguments in (1), (2) and (4) and considered that the claimant had ‘surmounted the substantial hurdle of establishing that the consultation was so unfair as to be unlawful’. In so holding, he applied the common law duty of procedural fairness in the context of a public consultation, in particular the fundamental question of whether the consultation was ‘so unfair as to be unlawful’: R (Bloomsbury Institute Ltd) v Office for Students [2020] EWCA Civ 1074, reported as [2020] ELR 653 (paragraphs 68–69). The consultation was launched on 5 September 2023. Under eight weeks were allowed for responses. The proposals were: to potentially change the ‘mobilising’ activity in the WCA and the associated descriptors; to potentially change activities regarding bowel/bladder control, coping with social engagement and getting about and associated descriptors; to potentially change the ‘substantial risk’ exceptional circumstances rule. 

The judge noted that in announcing the consultation the Secretary of State ‘made no mention at all of the fiscal/welfare savings aspect of the proposed changes to the WCA, in particular of the fact that the proposals would result in people with LCWRA status losing their current benefit payment of £390.06 (now £416.19) per month; nor of the fact that for people with LCWRA status, the proposals would replace voluntary work related activity with compulsory work related activity’ (paragraph 86). Neither did the published consultation paper, which failed to state that the proposals would compel more people to look for work and engage in work-related activity. But these effects were well known to the Secretary of State. The judge agreed with the claimant that ‘it was not made adequately clear that the legislative proposals for the affected groups were to replace voluntary work-related activity with compulsory work related activity, and to reduce the income of a large number of claimants’ (paragraph 109). Also, both the Chair of the Work and Pensions Committee and various non-governmental organisations expressed concern about the rushed nature of the consultation exercise and the lack of any published analysis of the effects of the proposals. But no extension to the consultation period was made. The judge agreed that: ‘There is a strong evidential basis for finding that less than eight weeks for a consultation concerning such significant proposals was insufficient and so unfair as to be unlawful’ (paragraph 131).

Summary

The claimant was entitled to the housing element as part of his universal credit (UC). His landlord considered (though the claimant did not accept) that he had two months or more of rent arrears. Following an application from his landlord, two decisions were made: firstly, to introduce a third-party deduction for rent arrears from his UC (under Schedule 6 paragraph 7 to the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013 No.380); secondly, to make an alternative payment arrangement (under regulation 58 of those regulations) to pay the housing element direct to his landlord. The claimant first applied for a mandatory reconsideration of those decisions but received no substantive reply. He applied for judicial review on the basis that he had not been given the opportunity to make representations about the changes before they were introduced. As such, the guidance and process for making the reductions was unlawful as it was procedurally unfair and unreasonable, and also in breach of the claimant’s human rights.

Fordham J allowed the claimant’s challenge on the basis that the guidance and process for making the changes was unlawful as procedurally unfair. The ‘minimum standards of procedural fairness on which the common law insists’ required that a UC claimant must be informed that a landlord had requested deductions for arrears and/or direct payment, and ‘must be given an opportunity to make a response before any change to their UC takes effect’ (paragraph 50). The statutory provisions were silent about the process. But the policy guidance used by the DWP amounted to a direction to decision makers that it is unnecessary to give claimants a chance to make representations before such changes were made. The judge was referred to the similar outcome, in the context of deductions from employment and support allowance for utility debts, in R (Timson) v Secretary of State for Work and Pensions [2023] EWCA Civ 656, reported as [2023] PTSR 1616. He agreed that it would be wrong simply to read across the analysis in Timson to the present case; but held that Timson was a ‘working illustration’ of unlawful policy guidance and of a ‘contextual application of procedural unfairness and reasonable enquiry’. Nevertheless, the judge had explicitly analysed the present case with reference to ‘its own particular features’ (paragraphs 60–62).

The judge did not accept that the making of the changes to the claimant’s UC was in breach of public law as a breach of the duty of reasonable enquiry (ie, of the decision maker’s obligation to take such steps to inform themselves as is reasonable, per Secretary of State for Education and Science v Tameside MBC [1976] UKHL 6, reported as [1977] AC 1014), or a violation of the claimant’s property rights under Article 1 of Protocol 1 of the European Convention on Human Rights. This was in the context of his finding that the process was procedurally unfair and therefore unlawful. That was not the same as finding (regarding reasonable enquiry) that it was independently unreasonable or (regarding Article 1 of Protocol 1) that there had been a failure to strike a fair balance in the making of the changes. ‘Overall,’ said the judge, ‘I am content that procedural fairness should have done the heavy lifting in this case, as it often has in public law, and that is the basis on which I decide the case’ (paragraph 70). 

Comment from CPAG

As in Timpson, the effect is that the claimant should have a right to comment on what is proposed, although that is not the same as a simple right of veto. See our article, Erosion – where are we now?

Summary

In this decision, the Court of Appeal unanimously held that the practice of automatically refusing to award an advance  of universal credit (UC) merely on the basis that the claimant does not have a national insurance number (NINo) is unlawful. More widely, however, the court upheld an earlier finding (in the Upper Tribunal) that, regarding  a claimant who had applied for a NINo, formal entitlement to UC could only arise when the relevant information or evidence had been verified by the Secretary of State.

The claimant (and another in a similar  case joined to the present one) had both experienced delays in being awarded UC,  due to human errors causing delays in their applications for a NINo) being processed, and the Secretary of State policy of not awarding UC unless and until the relevant information  for the NINo had been verified – ie, so that a NINo was then issued. Although both claimants were eventually awarded UC back  to their date of claim, no advance payments had been made. The claimants’ argued that the policy of not awarding UC, and not making an advance payment of UC, before a NINo had been allocated was unlawful. Specifically: (1) regarding advance payments, that the relevant rule at regulation 5 of the Social Security (Payments on Account of Benefit) Regulations 2013 (SI No.383), in requiring that it was ‘likely’ that the claimant would be entitled to UC,  did not require the claimant already to have  a NINo; (2) regarding formal entitlement to  UC, that the relevant rule at section 1(1B)(1)  of the Social Security Administration Act  1992 specifically provided that the NINo requirement was satisfied where the claimant did not have a NINo but had applied for one and provided the relevant information or evidence ‘enabling’ one to be allocated, and so the Secretary of State’s practice of requiring verification of that information or evidence was unlawful; and (3) that the practice that NINo eligibility does not begin until every other aspect of the claimant’s eligibility to UC had been determined was unlawful as it caused unnecessary delay.

Giving the lead decision, Lord Justice Nugee allowed the claimants’ appeal regarding advance payments. He said that the ordinary meaning of the language used in regulation 5 lent force to the argument that a NINo was not required. Whether a claimant was ‘likely’ to be entitled to UC was a matter of judgement on the facts of the individual case: ‘The scheme  of the provisions contemplates that in a case where a claimant’s claim has not yet been determined and the claimant is in need the Secretary of State will consider whether it appears likely that the conditions of entitlement are met; and it seems to me that this is just as much so in a case where the claimant does not have a NINo as in the case when they do. In my judgment therefore the Secretary of State’s practice in never considering whether this is likely in a case where the claimant does not have a NINo  is flawed’ (paragraph 79).

The other appeals of the claimants were dismissed. Regarding formal entitlement  to UC, supplying sufficient evidence or information for a NINo ‘enabling’ one to be allocated meant, as the Upper Tribunal had held, supplying such material that was subsequently verified. Lord Justice Nugee said: ‘Evidence that enables a NINo to be allocated seems to me plainly to refer to evidence that does in fact justify the allocation of a NINo, not evidence that merely purports to but in fact does not... Since NINos are only allocated to those who need them...and this in turn means those who either have a right to work or (in the present context) a right to benefits, I think it follows that evidence that enables a NINo to be allocated to a claimant for benefit is evidence that establishes that the claimant does in fact have a right to benefits. False documents do not do this’ (paragraph 55).  

Finally, there was nothing unlawful about the Secretary of State having a dedicated team of security officers consider the NINo after other aspects of UC entitlement had been considered. For that to be unlawful it would need to be irrational, and the proper desire to pay benefit to those entitled to it and prevent fraud meant that it was not.

Note from CPAG

The Secretary of State applied for permission to appeal to the Supreme Court. This application was refused by the Court of Appeal and by the Supreme Court. See our test case update: Delays accessing universal credit for claimants with national Insurance numbers.

Summary

The claimant had third-party deductions made from her income-related employment and support allowance (ESA) for fuel and water debts. The Court of Appeal considered an appeal by the Secretary of State against the preceding decision of the High Court in this case ([2022] EWHC 2392 (Admin), 23 September 2022). In that decision, the High Court held that the official guidance regarding third-party deductions for fuel and water debts from legacy benefits was unlawful, in that it failed to make clear to decision makers that claimants should be offered the opportunity to make representations and/or provide relevant information before the third-party deduction decision was made. The Court of Appeal unanimously rejected the Secretary of State’s further appeal.

All the Secretary of State’s arguments were dismissed. Those arguments included that the High Court had misapplied the approach taken to fairness in Bank Mellat v HM Treasury [2013] UKSC 38; [2013] UKSC 39, where the Court of Appeal had considered the scope of the common law duty to give advance notice and an opportunity to make representations to an individual against whom it was proposed to exercise a draconian statutory power. Giving the lead opinion in the present decision, Lord Justice Edis rejected that and said: ‘In my judgement, the regulations, by framing the decision making as they do, require a consideration of the interests of the individual claimant and their family. Under the guidance, however, the decision maker has the option  of contacting them, or of investigating their benefit records, but the guidance allows a decision to be made where the claimant or their family has been given no opportunity  to supply information beyond what the utility company puts in the spreadsheet. This appears to me to be obviously unfair’ (paragraph 66). Other arguments, which included that the judge in the High Court had misread the guidance and had made two perverse findings of fact, were also dismissed.

Comment from CPAG

As per the decision of the High Court, in strict terms this decision is regarding relevant deductions in the legacy benefit scheme and not in the universal credit scheme (where the rules are differently worded). It remains arguable that the principle upheld in it should also apply in that scheme.

Summary

The claimant claimed ‘old-style’ contributory ESA in March 2018. He said that he was due to start getting an occupational pension, and was instructed to report when the pension started to be paid. He did not do that. The ESA continued unadjusted until the DWP noticed on 12 August 2018 that the pension had started to be paid in late March 2018. A decision was issued that the claimant had been overpaid ESA from that point and that it was recoverable from him on the basis that he had failed to disclose the commencement of the pension. On appeal to the First-tier Tribunal, he argued that the ESA office had a computerised real-time information (RTI) feed from HM Revenue and Customs (HMRC) which would have told them about commencement of the pension, and so that  he had not failed to disclose. His appeal was dismissed.

Judge Church dismissed the claimant’s further appeal. The First-tier Tribunal had not erred in holding that he had been under a duty to disclose the commencement of his occupational pension, he had failed to carry that out, and that had been the cause of the overpayment, which was therefore recoverable from him under the terms  of section 71(1) of the Social Security Administration Act 1992. There was no dispute that the claimant had not in fact reported the commencement of the pension. HIs argument before the Upper Tribunal was that there had been evidence before the First-tier Tribunal that an ‘RTI scan’ indicating the pension was available to the ESA office well in advance of the August date on which the Secretary of State said the office became aware of it, so that the claimant could not have ‘failed’ to disclose something already known to the office. Further, the First-tier Tribunal had  erred in failing to make a finding of fact about when the office became aware of the pension, and in failing to analyse the chain of causation regarding the overpayment.

Rejecting those arguments, Judge Church took into account evidence (which had been before the First-tier Tribunal) about the DWP internal arrangement for use of the RTI scan from HMRC. That was that a data feed is received from HMRC, but the scan itself is not commenced until that the feed is accessed and the scan run by inputting DWP data – which in this case was not until 28 August 2018. Although the tribunal had not made  a specific finding on the date the office became aware of the pension starting, it was sufficiently clear overall that the tribunal considered that to have been on 12 August 2018. Information that was available to office via the data feed was not the same as information known to them as a result of the scan, which was not conducted until August. On causation, the judge cited relevant caselaw authority (in particular, SSWP v SS (SPC) [2013] UKUT 272 (AAC)), to the effect that  the existence of a computer interface could, even in cases where the claimant had strictly speaking failed to disclose, mean that some other cause (such a DWP failure to act on information) had caused the overpayment. But that was entirely dependent on the particular facts and what in common sense terms had caused the overpayment. In the present case, the judge considered that there had been no DWP failure: ‘The First-tier Tribunal found as a fact that the claimant was told that he needed to notify the Secretary of State when he  started receiving his pension, and the First-tier Tribunal did not find that the Secretary of State had knowledge of the pension coming into payment prior to 12 August 2018. On this basis I am not persuaded that the claimant was, prior to the Secretary of State gaining actual knowledge of the payments on 12 August 2018, relieved of his obligation to notify the Secretary of State of the commencement of the payments, or that the Secretary of State came under a duty to investigate all sources  of information to which he had access (including the “RTI” data) to ascertain whether payments had started’ (paragraph 50).

Comment from CPAG

Note that although on the facts the existence of a computer interface did not avail the claimant, the judge did not depart from other authority holding that in other cases such arrangements might be relevant. For more on the possible effect of computer interfaces and failure to disclose, see the article in Bulletin 295, p7.

Summary

In this decision, the Court of Appeal dismisses the appeal by the Secretary of State against the decision in the Upper Tribunal of Judge Ward in SSWP v WV (UC) [2023] UKUT 112 (AAC). There it had been held that, on the facts, the claimant had a freedom of movement right to reside as a self-sufficient person where he relied not only on his carer’s allowance but also in part on the means-tested benefits paid to his British partner, where those benefits were not paid at a higher rate due to him.

The claimant was an EU national married to a British citizen. He came to the UK in 2017. He was a carer for his wife who was a severely disabled person in receipt of income-related employment and support allowance (ESA), child tax credit and housing benefit as well as personal independence payment. His presence in the couple meant that his wife’s income-related ESA was reduced by the loss of the severe disability premium and by his carer’s allowance. When he and his wife claimed universal credit (UC) as a couple in 2020, he had pre-settled status under the EU Settlement Scheme – ie, insufficient in itself for UC purposes. The claimant was held not to have a European freedom of movement right to reside. However, Judge Ward found that in principle the claimant could rely on the means-tested benefits paid to his wife to establish such a right as a self-sufficient person. On the facts, the claimant had suff cient resources not to become a burden on the social assistance of the UK down to the point of claim for UC. The extra UC that would therefore be paid to them as a couple was £347 a month. The judge considered that was a relatively small amount, that the claimant was due to acquire settled status in about 23 months, that the numbers of other claimants with sufficiently similar facts to benefit from this finding was small, and so there was no unreasonable burden on the social assistance system of the UK from so concluding. 

The Court of Appeal unanimously dismissed the Secretary of State’s further appeal. Giving the lead decision, LJ Singh held that on the facts Judge Ward had not erred in law, including in holding that in principle a claimant could rely in part on the means-tested benefits made available to him by his partner. However, the facts were particular and unusual: ‘It is clear therefore, in my view, that the critical part of the judge’s reasoning was that, on the unusual facts of this case, there would be no increase in the burden on the UK social assistance system’, as a result of the claimant having joined his British wife in the UK, with the ‘reasoning and impact’ of the decision being ‘relatively narrow’ (paragraphs 69 and 70). The ‘crucial point’ was that, on the facts, ‘there was no increase, but rather a decrease, in the burden on the UK’s social assistance system’ by reason of the claimant having exercised his European freedom of movement rights (paragraph 71).

Summary

The claimant was entitled to ‘old-style’ contributory ESA. Following conviction,  he was in prison between 3 January 2020  and 21 December 2020. He was disqualified from receiving payment while in prison,  but no decision was taken to terminate his entitlement during that time (termination  had been possible, based on being treated  as not having limited capability after being disqualified for more than six weeks). On his release from prison, the claimant applied for payment of his ESA to be reinstated. Instead,  it was decided in a supersession decision  that he had lost entitlement to his ESA while  in prison (ie, after more than six weeks of disqualification), so would now have to make a new claim – ie, a claim for ‘new-style’ ESA under the UC system. His appeal was upheld by the First-tier Tribunal, who held that he had not been disqualified from ESA while in prison and so payment could resume on release. 

Judge Rowland held that, on a supersession for change of circumstance the claimant had indeed lost entitlement to contributory ESA while in prison, but also that the Secretary of State must also (ie, without a new claim) decide the claimant’s entitlement to ESA from 22 December 2020. It was an error for the Secretary of State not to have done that when carrying out the supersession. Although the tribunal had erred in its reasons as to why the ESA had not terminated while in prison (it wrongly held that imprisonment was not a ‘penalty’ for the purposes of disqualification and therefore subsequent loss of entitlement), it was nevertheless the case that his entitlement had not been brought to an end by the Secretary of State during that time, and so at the time of the supersession he still had a current award, and simply could not make a ‘new’ claim. Further, the supersession had to consider his entitlement not only during the past period in prison but also his entitlement subsequent to his release – ie, down to the date of the supersession decision itself. The claimant might still be entitled to old-style ESA at the date of the supersession decision (although that was probably no longer the contributory form, as his period of limited capability for work had been broken while in prison and so the relevant contribution years had changed. But it was possible he was entitled to the income-related form).  

The key was that the claimant had an extant award of contributory ESA at the time of the supersession decision – ie, because (for some reason) the Secretary of State had not brought entitlement to an end in prison after the claimant had been disqualified for six weeks. Because of that, it was simply not possible  for the claimant to make a new claim. Judge Rowland said: ‘A decision that the award should be superseded because the claimant had not been entitled to contributory employment and support allowance during a period that had ended before the supersession decision was made cannot justify a decision that he had no entitlement during a later period or at the date of the decision merely because he had not made a new claim. A person who has a current award of a benefit cannot be expected to, and is neither obliged nor entitled to, make a new claim for the same benefit, even if payments have been suspended.  A supersession decision must therefore determine entitlement up to the date of the decision itself without a new claim having  been made’ (paragraph 27).

Comment from CPAG

Although the term is not used in  the decision, this is an example of a circumstance in which a so-called ‘closed period supersession’ should be carried out – ie, a supersession which can encompass a loss of entitlement for a limited past period, where entitlement has not actually been brought to an end, and has arisen again (or  at least may have arisen again) by the date of the supersession.

Summary

The claimant had been entitled to the lower rate of both the care and mobility components of disability living allowance (DLA), but on transfer to PIP was not awarded either the daily living or the mobility component. The claimant’s appeal (written by his mother as his appointee) mentioned his ‘cognitive impairment’, and the evidence before the First-tier Tribunal included medical evidence of the claimant’s ‘significant learning disability’. The tribunal awarded the claimant the standard rate of the daily living component, but did not award the mobility component. The tribunal’s reasons referred to the claimant having ‘some learning difficulties’. On the further appeal to the Upper Tribunal, the claimant’s mother pointed out that the tribunal frequently referred to ‘learning difficulties’ (which could mean any learning or emotional problem that affected ability to learn), but not to ‘learning disability’, which was a different condition and not, as the tribunal clearly considered, synonymous and should not have been applied as if were interchangeable.

Judge Jacobs allowed the further appeal and remitted the case to a fresh tribunal. He agreed that ‘the tribunal did not appreciate the importance of distinguishing between evidence of learning difficulties and learning disability’ (paragraph 14). The judge’s own internet search had shown that some sites treated ‘learning difficulty’ and ‘learning disability’ as synonymous, whereas others did not. The error of law was that: ‘The argument from the claimant’s mother relied on her son having a disability, which she saw as indicative of the nature and range of his limitations. The tribunal should have clarified what she meant in order to understand her argument. It should have kept the different in mind when taking and assessing evidence from the claimant and his mother. It should have tried to identify the way in which those terms were used in the documentary evidence’ (paragraph 15).

The judge pointed out that it is not necessary to have a formal diagnosis in order to qualify for PIP. Rather, under section 80(1) of the Welfare Reform Act 2012, it was required that the claimant’s activities were limited (to a sufficient extent) by their ‘physical or mental condition’. But a diagnosis could nevertheless be important evidence about whether that test was met: ‘A diagnosis of a particular condition is relevant evidence in deciding whether  their limitations are likely to arise from their “physical or mental condition”. It may allow  the tribunal to assess the reliability of the claimant’s evidence about the effect of their condition. It may also allow the tribunal to draw inferences about the nature and extent  of the claimant’s limitations in the absence of evidence’ (paragraph 12).

Decision in brief

At age 71, applied for a supersession on basis that he was now terminally ill – the daily living component was increased to the enhanced rate, but not the mobility component, per section 83(1) Welfare Reform Act 2012 and regulation 27 of the Social Security (Personal Independence Payment) Regulations 2013 on post-pension age entitlement to PIP, which forbid that – claimant’s argument that this was unlawful discrimination of his rights as a terminally person, in breach of Article 14 of the European Convention on Human Rights, dismissed – primary reason for this is that there could be no effective remedy to such a breach, as the default position established by section 83(1) (which cannot be disapplied by a court in Great Britain) is that there is no entitlement to PIP after pension age at all – regulation 27, which permits by beneficial exception certain entitlements on revision or supersession after pension age, could be disapplied but that would not actually assist the claimant

Decision in brief

Ability to rely on partner’s as resources counting towards prior self-sufficiency and whether carer’s allowance is ‘social assistance’ – appellant (‘C’) a Belgian national with a UK partner (‘J’), made a joint claim for UC – held (reversing decision of tribunal) that C did have a right to reside as a self-sufficient person (with comprehensive sickness insurance, not in dispute) – before the claim for universal credit (UC), C’s resources consisted of the share of J’s benefits made available by her to him when he joined her – these included ‘social assistance’ in the form of her legacy means-tested benefits (which had not increased as a result of C joining her) and C’s own carer’s allowance for her (not in itself ‘social assistance’), both counted as part of his resources, so that he must be taken to have been self-sufficient before the claim for UC – that meant that the case fell within the scope of C-140/12 Brey, so that an individualised assessment was required of C’s position – C eventually became eligible for settled status in the UK, so the relatively small amount of additional UC involved in paying the full amount for a joint claim was a ‘time-limited top-up’ and not unreasonably burdensome

Note: the Secretary of State's appeal against this decision was dismissed by the Court of Appeal, for further details see our caselaw summary Secretary of State for Work and Pensions v Versnick [2024] EWCA Civ 1454.

Summary

Between 2019 and 2021, the claimant, a single parent with two disabled sons, was overpaid universal credit (UC) due to official error, as the DWP mistakenly treated her youngest son as still in full-time, non-advanced education while he was undertaking an apprenticeship, and so wrongly still paid her the child element for him. An appeal tribunal (which had no jurisdiction on recoverability) found that the claimant had taken all reasonable steps to advise the department and clarify the situation, but repeated official error had continued the overpayment. She asked the department to waive recovery on three occasions, but (citing the policy, in particular in the April 2022 version of the Benefit Overpayment Recovery Guide, or ‘BORG’) that request was refused each time. The claimant sought judicial review of the last of those refusals.

In the High Court, Mrs Justice Steyn DBE granted the claimant’s application, holding that the Secretary of State’s decisions to refuse to waive the claimant’s UC overpayment were unlawful and breached the claimant’s legitimate expectation. The refusal to waive failed to give lawful regard to all relevant considerations. The judge noted that at the relevant time the official policy was comprised of policy in the BORG, which was publicly available, and in the Decision Maker’s Guide to Waiver (DMGW), which was not and contained some differently worded policy. The judge did not consider that the BORG was itself unlawful, as it was capable of being read with the DMGW to form a legitimate policy. But, considered the judge: ‘…the following matters were relevant considerations: (i) how the overpayment arose; (ii) the debtor’s conduct, and in particular whether she acted  in good faith, and whether and to what extent she took steps to notify the defendant of all relevant information and to query her entitlement.’ The refusal to grant a waiver addressed those ‘only to a very limited extent’ and was ‘manifestly inadequate’ (paragraph 129). It was also a relevant consideration whether recovery was in the public interest, and there was no evidence to show that had been considered. Further, the official policy was also that a relevant factor was whether the claimant had relied on the overpayment to their detriment. No consideration had been given to that, although the judge considered that the claimant had clearly spent the extra money on day-to-day living expenses, so putting her in the position of a ‘person who normally has very straitened finances and who relaxes the constraints on her ordinary living expenditure to the extent of spending what she reasonably believed to be the means at her disposal’ (paragraph 134).  

The refusal to waive recovery was also unlawful on grounds of being illogical: ‘the reasoning process in respect of the public interest and detrimental reliance grounds was so lacking, and therefore flawed, as to rob the decision of logic’ (paragraph 138). In particular, it was plainly at odds with case studies in the DMGW. The refusal was also unlawful on the grounds that the claimant had formed a legitimate expectation that she was entitled  to it. The ‘clear and unambiguous’ representations by the DWP to the claimant that she was entitled to the child element  (the claimant queried that twice) were capable of founding her legitimate expectation (paragraph 161). The claimant asserted this merely to assert that the Secretary of State could not resile from it in order to insist on recovery – ie, and not to argue that she remained entitled to the overpayment. On the facts of the case, including that the claimant’s ‘strenuous’ efforts to ‘clarify and query’ her entitlement, it would not be fair to permit the Secretary of State to resile from the claimant’s legitimate expectation (paragraph 169). Finally, there had been a failure to observe the ‘public sector equality duty’ (PSED) in section 149 of the Equality Act 2010 in formulating the waiver policy in 2022, with regard to possible adverse effects on people with disability: ‘In order to fulfil that duty, the Secretary of State had to assess the risk and extent of any adverse impact and the ways in which such risk might be eliminated. It is clear, in my view, that the defendant has not complied with the PSED in amending the waiver policy in February and April 2022’ (paragraph 210).

Comment from CPAG

See also the article in Bulletin 293, p7. The ‘legitimate expectation’ finding is new, in the context of benefit overpayment recovery, but the individual facts were crucial. The judge also declared that the failure to publish the DMGW had been unlawful. However, she noted that since the hearing the Secretary of State had published a revised version of the BORG [a February 2023 version is now available] and had withdrawn the DMGW,  so that: ‘It follows that the whole of  the current policy has now been published’ (paragraph 118). The judge made no comment about the 2023 BORG, or whether it is proper access to justice to create such complex policy and to deny claimants a right of appeal about recovery of overpayments, so that resort to judicial review is their only legal recourse – but many will feel it is not.

Summary

The claimant was originally refused personal independence payment (PIP) in 2017 (that had been subject to a mandatory reconsideration in 2017 but was not changed). That original decision had again not been changed by a DWP ‘LEAP’ (Legal Entitlements and Administrative Practices) decision in 2020.  The claimant’s subsequent attempt to appeal against the 2017 decision, well outside the  13-month time limit, was rejected by the  First-tier Tribunal as being out of time.  

Judge Wikeley dismissed the claimant’s further appeal. The LEAP decision was correctly regarded as a refusal to revise the original 2017 decision for official error and no appeal rights arose from that. Regarding a late appeal against the mandatory reconsideration of 2017, that was well outside the usual (or ‘absolute’) 13-month time limit, and there was no ground for extending that on human rights grounds under the so-called ‘Adesina principle’. Reviewing relevant authority on that point, the judge had particular reference to the recent decision of Fordham J in Rakoczy v General Medical Council [2022] EWHC 890 (Admin). Although that was not technically binding, the judge considered it right to follow as a matter of judicial comity (and, in any case, he agreed with the analysis there). Rakoczy recognised that refusing a late appeal must  not impair the very essence of the right to appeal, and must pursue a legitimate aim with proportionality between the means employed and the aim. But it also recognised that, in Judge Wikeley’s words: ‘a case would need to be very exceptional indeed in order to benefit from the Adesina principle’ (paragraph 54). 

The judge also remarked that, had he had reference to Rakoczy v GMC when deciding MZ v SSWP (UC), he ‘might well have emphasised even more strenuously the truly exceptional nature of the Adesina principle’ (paragraph 58). In a final reflection, the judge said: ‘…the moral of Rakoczy v GMC is that the Adesina principle is very narrowly drawn indeed… Adesina is about the right of access to the justice system and can only apply if the effect of a time limit is to “restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired”’ (paragraph 71).

Note

See also the article in Bulletin 293, p9.