Category: Benefits

MA and Others, Regina (on The Application of) v Secretary of State for Work and Pensions and Others: QBD 30 Jul 2013

Ten disabled claimants challenged the changes to the 2006 Regulations introduced by the 2012 Regulations. The changes restricted the ability to claim Housing Benefit for bedrooms deemed extra. The claimants said that in their different ways each had needs for additional bedrooms not allowed for by the Regulations.
Held: The request for judicial review failed.

Laws LJ, Cranston J
[2013] EWHC 2213 (QB), [2013] WLR(D) 325, [2013] PTSR 1521
Bailii, WLRD
Housing Benefit Regulations 2006, Housing Benefit (Amendment) Regulations 2012, European Convention on Human Rights 14
England and Wales
Citing:
Cited – AM (Somalia) v Entry Clearance Officer CA 1-Jul-2009
The appellant had married in Somalia. His wife lived in London and sought permission for him to enter, she acting as his sponsor. The Immigration judge had found that they met all the criteria save one, that they would be able to support themselves . .
Cited – RJM, Regina (on the Application of) v Secretary of State for Work and Pensions HL 22-Oct-2008
The 1987 Regulations provided additional benefits for disabled persons, but excluded from benefit those who had nowhere to sleep. The claimant said this was irrational. He had been receiving the disability premium to his benefits, but this was . .
Cited – Thlimmenos v Greece ECHR 6-Apr-2000
(Grand Chamber) The application of a rule that a felon could not become a chartered accountant infringed the rights under article 14, taken in conjunction with article 9, of a pacifist convicted of the felony of refusing to perform military service. . .

Cited by:
Appeal from – MA and Others, Regina (on The Application of) v The Secretary of State for Work and Pensions CA 21-Feb-2014
The claimants were in recipet of housing benefit. They claimed that the new benefits cap (‘bedroom tax’) discriminated against them when additional space was need for the care of family members with disabilities . .
At first instance – MA and Others, Regina (on The Application of) v The Secretary of State for Work and Pensions SC 9-Nov-2016
The appellants claimed housing benefit. They appealed against rejection of their claims that the imposition of limits to the maximum sums payable, ‘the bedroom tax’, was unlawful on equality grounds. The claimants either had disabilities, or lived . .

Lists of cited by and citing cases may be incomplete.

Benefits, Housing, Human Rights

Updated: 17 November 2021; Ref: scu.513775

Mirga v Secretary of State for Work and Pensions: CA 4 Dec 2012

Laws, Tomlinson LJJ, Sid David Keene
[2012] EWCA Civ 1952
Bailii
England and Wales
Cited by:
Cited – Mirga v Secretary of State for Work and Pensions, Samin v Westminster City Council SC 27-Jan-2016
The claimants, a Polish national and an Austrian national, appealed against decisions of the Court of Appeal upholding decisions that they were not entitled to certain benefits, namely income support and housing assistance respectively, pursuant to . .

Lists of cited by and citing cases may be incomplete.

European, Benefits

Updated: 17 November 2021; Ref: scu.513721

Hastings Borough Council v PA and DA Hanlon: UTAA 10 May 2013

Housing Benefit – Appeal, brought by Hastings Borough Council with permission granted by Upper Tribunal Judge Howell QC, against a decision of the First-tier Tribunal whereby it allowed an appeal by the landlords (although the landlord’s agent was named as the appellant) against a decision that an overpayment of housing benefit amounting to andpound;7,310 was recoverable from them as well as from the claimant.

Upper Tribunal Judge Rowland
[2013] UKUT 232 (AAC), [2014] AACR 4
Bailii

Benefits

Updated: 17 November 2021; Ref: scu.513637

DD v Revenue and Customs and Secretary of State for Work and Pensions (CB): UTAA 28 Feb 2020

Right to reside -‘ ‘genuine chance of being engaged in employment’ test applied to jobseeker on claim for child benefit -‘ adequacy of HMRC’s appeal response put before FtT -‘ whether HMRC in that response and the FtT in its decision applied wrong version of regulation 6 of the Immigration (EEA) Regs 2006 -‘ adequacy of HMRC’s guidance on how to apply the ‘genuine chance of being engaged in employment’ test.

[2020] UKUT 66 (AAC)
Bailii
England and Wales

Benefits, Immigration

Updated: 17 November 2021; Ref: scu.651787

Office National D’Allocations Familiales Pour Travailleurs Salaries (ONAFTS) v Radia Hadj Ahmed: ECJ 13 Jun 2013

ECJ Social security for migrant workers – Regulation (EEC) No 1408/71 – Scope ratione personae – Grant of family benefits to a third-country national with a right of residence in a Member State – Regulation (EC) No 859/2003 – Directive 2004/38/EC – Regulation (EEC) No 1612/68 – Length-of-residence requirement

L. Bay Larsen, P
C-45/12, [2013] EUECJ C-45/12
Bailii
Regulation (EEC) No 1408/71, Regulation (EC) No 859/2003

European, Benefits

Updated: 14 November 2021; Ref: scu.511009

Delve and Another, Regina (on The Application of) v The Secretary of State for Work and Pensions: Admn 3 Oct 2019

Claimants challenged the raising of the age at which women became entitled to a state pension.
Held: The Appellants’ judicial review claim was dismissed.

Lord Justice Irwin and Mrs Justice Whipple
[2019] EWHC 2552 (Admin)
Bailii
England and Wales
Cited by:
Appeal from – Delve and Another, Regina (on The Application of) v The Secretary of State for Work and Pensions CA 15-Sep-2020
Appellants challenged the changes brought about to women’s pensions by the Pensions Acts 1995 and 2007 raising the ages from which pensions would be available. . .

Lists of cited by and citing cases may be incomplete.

Benefits, Discrimination, European

Updated: 12 November 2021; Ref: scu.642706

Hinchy v Secretary of State for Work and Pensions: HL 3 Mar 2005

The applicant had been dependent upon income support, and had then come to receive Disability Living Allowance (DLA). She therefore received additional income support, but the office did not adjust that benefit down when her DLA stopped. The respondent sought repayment of the overpayment. The claimant said she had not understood the instructions.
Held: The court of appeal had been wrong ‘to overturn the decisions of the Commissioners. They have practical experience of the day-to-day working of the benefit system and I think that the principles they have devised to give effect to the legislative scheme dealing with overpayments are entitled to great respect. ‘ and ‘The claimant is not concerned or entitled to make any assumptions about the internal administrative arrangements of the department. In particular, she is not entitled to assume the existence of infallible channels of communication between one office and another. Her duty is to comply with what the Tribunal called the ‘simple instruction’ in the order book.’ (Lord Scott of Foscote dissenting) The defendant could not rely upon any conclusion that the department she was dealing was a single entity where what was known to one officer was known to each of the others.

Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Baroness Hale of Richmond
[2005] UKHL 16, Times 04-Mar-2005, [2005] 1 WLR 967
Bailii, House of Lords
Social Security Administration Act 1992 871, Social Security (Claims and Payments) Regulations 1987 (SI 1987 No 1968) 32
England and Wales
Citing:
Cited – R(SB) 15/87 SSAT 1986
‘It is well settled that responsibility for keeping the Department informed of any change in a claimant’s circumstances rests and remains upon the claimant . .’ and ‘. . To whom is there this obligation to disclose? We are concerned here with . .
Appeal from – Hinchy v Secretary of State for Work and Pensions CA 20-Feb-2003
The appellant challenged an order requiring her to repay benefits. She had ceased to become entitled to disability allowance when it expired without renewal, and so also lost the right to a severe disability premium. She did not inform the second . .
Cited – CG/4494/99 SSAT 1999
. .
Cited – Harrison v Bush 1855
The office of Secretary of State is in theory one and indivisible.
Lord Campbell CJ stated: ‘In practice, to the Secretary of State for the Home Department . . belongs peculiarly the maintenance of the peace within the kingdom, with the . .
Cited – Foster v Federal Commissioner of Taxation 1951
(Australia) The idea of ‘disclosure’ to a person who already knew or was deemed to know the fact at issue iss conceptually impossible. . .
Cited – Condon v Commissioner of Taxation 2000
(Federal Court of Australia) The idea of ‘disclosure’ of something to a person who already knew or was deemed to know was conceptually impossible. . .
Cited – CIS 5848/99 SSAT 1999
Because it was the practice of the child benefit officer to notify the relevant Social Security Office of child benefit awards, the latter office must be taken to have known of an award which was not disclosed to them by the claimant and that the . .
Cited – CSB/1246/1986 1986
A benefit claimant’s duty is to comply with the instructions in the order book. A disclosure which would be thought necessary only by a literal-minded pedant need not be made, but the safest course is to resolve doubts in favour of disclosure. . .

Cited by:
Cited – Gillies v Secretary of State for Work and Pensions HL 26-Jan-2006
The claimant said that the medical member of the tribunal which had heard his disability claim was biased. The doctor was on a temporary contract and also worked for an agency which contracted directly the Benfits Agency. The court of session had . .
Cited – REW, Regina (on the Application of) v Secretary of State for Work and Pensions Admn 13-Jun-2008
The claimant sought permission to bring judicial review of decisions of the Child Support Agency. He said that his payments should have been reduced for a period when he was in receipt of job seeker’s allowance. A liability order had been made . .

Lists of cited by and citing cases may be incomplete.

Benefits, Administrative

Updated: 12 November 2021; Ref: scu.223140

Heffernan, Regina (on the Application of) v The Rent Service: HL 30 Jul 2008

The appellant challenged the decision of the respondent to redetermine the rents for two properties, saying that the officer had wrongly interpreted the meaning of locality when looking for comparable properties.
Held: The determinations were quashed. Lord Hope of Craighead said: ‘para 4(6)(b) imposes a geographical control on the extent of the area within which the variety referred to in para 4(6)(c) is to be found. The result of its application may be wide or narrow in terms of geography according to the circumstances. This will depend on the judgment of the rent officer. He must however apply the criterion mentioned in para 4(6)(b) to every neighbourhood which he wishes to add to the one where the dwelling is situated. The only rents which can be added to his basket are those for dwellings which are to be found within a neighbourhood which satisfies this criterion. Those for premises in a neighbourhood which fails to satisfy it must be discarded.’
Lord Rodgers dissenting.

Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Neuberger of Abbotsbury
[2008] UKHL 58, Times 20-Aug-2008, [2008] 1 WLR 1702
Bailii, HL
Rent Officers (Housing Benefit Functions) Order 1997
England and Wales
Citing:
At first instance – Heffernan, Regina (on the Application of) v the Rent Service Admn 10-Oct-2006
The claimant sought judicial review of the redetermination of housing benefits payable in respect of two flats rented out by him. The rent office said that the regulations were merely intended to put in statute form the previous practice used when . .
Appeal from – Rent Service v Heffernan, Regina (on the Application of) CA 13-Jun-2007
Appeal against housing benefit rederminations. . .
Cited – Regina (Gibson) v The Housing Benefit Review Board for East Devon CA 1993
The court described the purpose of the scheme for determining fair rents. . .
Cited – Regina (Saadat) v The Rent Service CA 26-Oct-2001
When choosing an area over which comparisons of rents are to be made, the Service had to look at a locality which was no larger than was necessary to establish such a comparison. The choice of too wide an area resulted in the inclusion within the . .

Lists of cited by and citing cases may be incomplete.

Housing, Benefits

Updated: 11 November 2021; Ref: scu.271276

Peters v East Midlands Strategic Health Authority and Another: CA 3 Mar 2009

The Authority was not entitled to have deducted from the sums payable toward the claimant’s social care, an award of damages made against the authority from its own negligence in the care of his mother, leading to his disability. The phrase ‘An award of damages for a personal injury’ in paragraph 44(2)(a) was clear, unambiguous and unqualified, and should not be construed as referring only to some heads of an award of damages for personal injury.

Sir Anthony Clarke, Master of the Rolls, Lord Justice May and Lord Justice Dyson
[2009] EWCA Civ 145, [2009] 3 WLR 737, [2009] LS Law Medical 229, (2009) 12 CCL Rep 299, [2009] PIQR Q1
Bailii, Times
Income Support (General) Regulations 1967 (SI 1987 No 1967)
England and Wales

Personal Injury, Professional Negligence, Benefits

Leading Case

Updated: 11 November 2021; Ref: scu.311771

Regina (B) v Merton London Borough Council: Admn 14 Jul 2003

The authority had to decide the age of the applicant, an asylum seeker, in order to decide whether a duty was owed to him under the Act. He complained that the procedure adopted was unfair. The 2002 Act did not apply to persons under 18, and he would be entitled to assistance from the respondent. The assessment was made by a social worker through an interpreter over a telephone, but no record was kept.
Held: There was no statutory procedure. Without documentation, no objective procedure existed, and the respondent must rely upon its own assessment. It was difficult but not complex, and should not be made complex. It had to make its own decision, and could not simply adopt the decision of the Home Office. The procedure adopted here risked misunderstanding, and notes would have been relevant and useful. The applicant had not been given opportunity to answer points found against him, and the decision was unfair and must be set aside.
The court set out guidelines for the making of such assessments.

Stanley Burnton J
[2003] EWHC 1689 (Admin), Times 18-Jul-2003, [2003] 4 All ER 280
Bailii
Children Act 1989 17, Nationality, Immigration and Asylum Act 2002 18(1)(a)
England and Wales
Cited by:
Cited – I and Another, Regina (on the Application Of) v Secretary of State for the Home Department Admn 27-May-2005
The applicants had sought asylum. The respondent wished to detain them. They said that they were under the age of 18, which would require them to be released. The respondent obtained expert reports from a senior consultant paediatrician experienced . .
Cited – Regina (A) v Liverpool City Council QBD 26-Jun-2007
The applicant sought judicial review of the authority’s decision that he was over the age of eighteen.
Held: Review was granted. The authority had to have regard to all the relevant information, and could not limit itself to adopting the . .
Cited – Friends of Basildon Golf Course v Basildon District Council and Another Admn 23-Jan-2009
The council owned land on which it ran a golf course. It set out to privatise it and sought interest. An application was made for planning permission. The applicants objected to the planning permission, saying that the Environmental Impact . .
Cited – A, Regina (on the Application of) v London Borough of Croydon SC 26-Nov-2009
The applicants sought asylum, and, saying that they were children under eighteen, sought also the assistance of the local authority. Social workers judged them to be over eighteen and assistance was declined.
Held: The claimants’ appeals . .
Cited – AA, Regina (on The Application of) v Secretary of State for The Home Department SC 10-Jul-2013
The issue on this appeal is the effect of section 55 on the legality of the appellant’s detention under paragraph 16 over a period of 13 days. At the time of the detention the Secretary of State acted in the mistaken but reasonable belief that he . .

Lists of cited by and citing cases may be incomplete.

Children, Local Government, Benefits

Leading Case

Updated: 11 November 2021; Ref: scu.184712

Gusa v Minister for Social Protection (Special Non-Contributory Cash Benefits – Jobseeker’s Allowance : Opinion): ECJ 20 Dec 2017

Reference for a preliminary ruling – Directive 2004/38/EC – Person no longer working in a self-employed capacity – Retention of the status of self-employed person – Right of residence – Legislation of a Member State restricting eligibility for a jobseeker’s allowance to persons who have a right of residence on the territory of that Member State

[2017] EUECJ C-442/16, ECLI:EU:C:2017:1004, [2018] PTSR 1699, [2018] WLR(D) 10
Bailii, WLRD
European
Citing:
Opinion – Gusa v Minister for Social Protection (Special Non-Contributory Cash Benefits – Jobseekera?S Allowance : Opinion) ECJ 26-Jul-2017
Opinion – reference for a preliminary ruling – Regulation (EC) No 883/2004 – Special non-contributory cash benefits – Jobseeker’s allowance – Directive 2004/38/EC – Article 7(3)(b) – EU citizen who has lived and worked as a self-employed person in a . .

Lists of cited by and citing cases may be incomplete.

Benefits

Updated: 11 November 2021; Ref: scu.668602

Regina v Manchester City Council, ex parte Stennett etc: HL 25 Jul 2002

The applicants were former mental patients who had been admitted to hospital compulsorily under section 3. On their release they were to be given support under section 117. The authorities sought to charge for these services, and appealed a decision that the services should be free.
Held: Section 117 imposed a clear and free standing duty to provide support. The section was not a mere request to the authority to provide services under other provisions. Such patients might have greater needs and also have imposed on them restrictions. It was not inappropriate that support should be free.

Lord Slynn of Hadley Lord Mackay of Clashfern Lord Steyn Lord Hutton Lord Millett
Times 29-Aug-2002, Gazette 17-Oct-2002, [2002] UKHL 34, [2002] BLGR 557, (2002) 5 CCL Rep 500, [2002] 4 All ER 124, [2002] 3 WLR 584, (2002) 68 BMLR 247, [2002] 2 AC 1127
House of Lords, Bailii
Mental Health Act 1983 3 117
England and Wales
Citing:
Appeal From – Regina v Richmond London Borough Council, Ex Parte Watson; Regina v Redcar and Cleveland Borough Council, Ex Parte Armstrong etc Admn 15-Oct-1999
. .

Cited by:
Cited – K v Central and North West London Mental Health NHS Trust and Another QBD 30-May-2008
k_centralQBD2008
The claimant appealed against an order striking out his claim in negligence. He had leaped from a window in a suicide attempt. The accommodation was provided by the defendant whilst caring for him under the 1983 Act.
Held: The case should be . .
Cited – Stojak, Regina (on The Application of) v Sheffield City Council Admn 22-Dec-2009
The deceased had been detained as a mental patient and supported after her release, by her family financially. Her representatives now said that the respondent had failed in its obligation to provide support for no charge. The authority said that . .

Lists of cited by and citing cases may be incomplete.

Health, Benefits, Local Government

Leading Case

Updated: 10 November 2021; Ref: scu.174394

Stewart v Secretary of State for Work and Pensions: CA 29 Jul 2011

The court considered the arrangements for providing public support for the costs of funerals. The claimant’s son had died whilst she was in prison. Assistance had been refused because, as a prisoner, she was not receiving benefits. She complained that the refusal violated her right not to be discriminated against.
Held: The prisoner’s appeal failed. The system did not amount to direct discrimination: ‘The issue at the heart of this case is not whether prisoners are wrongfully denied access to income support for reasons referable to their status as prisoners, but whether they are wrongfully denied access to a funeral payment for such reasons. The short answer is that they are not. If the status in question was not ‘prisoner’ tout seul, but ‘a prisoner who is not entitled to income support’ then the answer would be different. But being a prisoner tout seul did not exclude Ms Stewart from entitlement to all qualifying benefits, and it did not therefore exclude her from entitlement to a funeral payment. Being a prisoner was not ‘the reason why’ she was refused a funeral payment.’
The refusal was accepted to be indirect discrimination. Nevertheless it was justified, because the discrimination was not against prisoners alone, and any adjustment would ‘in turn be subjected to complaint from all the other excluded groups who would complain that they were being unlawfully discriminated against, and in my judgment a decision to that effect in this case would justly expose the court to the charge that it is trespassing in territory in an area of social policy that is properly the preserve of the legislature.’

Rix LJ, Sir Henry Brooke, Dame Janet Smith
[2011] EWCA Civ 907, [2011] UKHRR 1048
Bailii
Public Health (Control of Disease) Act 1984 46(1), Social Security (Contributions and Benefits) Act 1992 138, Social Fund Maternity and Funeral Expenses (General) Regulations 1987 7, Social Fund Maternity and Funeral Expenses (General) Regulations 2005 7, European Convention on Human Rights 14
England and Wales
Citing:
Cited – James v Eastleigh Borough Council HL 14-Jun-1990
Result Decides Dscrimination not Motive
The Council had allowed free entry to its swimming pools to those of pensionable age (ie women of 60 and men of 65). A 61 year old man successfully complained of sexual discrimination.
Held: The 1975 Act directly discriminated between men and . .
Cited – Shamoon v Chief Constable of the Royal Ulster Constabulary HL 27-Feb-2003
The applicant was a chief inspector of police. She had been prevented from carrying out appraisals of other senior staff, and complained of sex discrimination.
Held: The claimant’s appeal failed. The tribunal had taken a two stage approach. It . .
Cited – RJM, Regina (on the Application of) v Secretary of State for Work and Pensions HL 22-Oct-2008
The 1987 Regulations provided additional benefits for disabled persons, but excluded from benefit those who had nowhere to sleep. The claimant said this was irrational. He had been receiving the disability premium to his benefits, but this was . .
Cited – Stec and Others v United Kingdom ECHR 6-Jul-2005
. .
Cited – Carson, Regina (on the Application of) v Secretary of State for Work and Pensions; Reynolds v Same HL 26-May-2005
One claimant said that as a foreign resident pensioner, she had been excluded from the annual uprating of state retirement pension, and that this was an infringement of her human rights. Another complained at the lower levels of job-seeker’s . .
Cited – Humphreys v Revenue and Customs CA 11-Feb-2010
The court was asked as to entitlement to child tax credit where parents were separated but shared the care of the children.
Held: The discretion to be accorded to the legislature or executive is especially wide where the discrimination is . .
Cited – Shelley v The United Kingdom ECHR 4-Jan-2008
Discrimination on grounds of prisoner status was recognised as falling within ‘other’ status in Article 14: ‘[T]he Court would observe that being a convicted prisoner may be regarded as placing the individual in a distinct legal situation, which . .
Cited – Esfandiari and others v Secretary of State for Work and Pensions CA 23-Mar-2006
The claimant argued that the funeral benefits regime unlawfully discriminated against migrants because the 1987 Regulations did not permit payments to be made for a burial abroad, except as provided for by EU law.
Held: The argument was . .
Cited – Francis v Secretary of State for Work and Pensions CA 10-Nov-2005
The applicant had sought payment of a ‘Sure Start’ maternity grant. She had obtained a residence order in respect of her sister’s baby daughter who had been taken into care. She said that a payment would have been made to the partner of a mother or . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Benefits, Human Rights

Updated: 10 November 2021; Ref: scu.442416

Mian v Revenue and Customs: FTTTx 5 Feb 2014

FTTTx STATUTORY SICK PAY – whether Appellant entitled to statutory sick pay – whether absences of Appellant from work comprised days of incapacity for work – Appellant’s GP certified Appellant as unfit for work – HMRC instructed doctors to give medical opinion as to Appellant’s fitness to work – failed to set out full extent of duties performed by Appellant – appeal allowed

Sadler TJ
[2014] UKFTT 163 (TC)
Bailii
England and Wales

Benefits

Updated: 10 November 2021; Ref: scu.521797

Zyn, Regina (on The Application of) v Walsall Metropolitan Borough Council: Admn 12 Jun 2014

The court was asked whether capital derived from a personal injury settlement which is managed by a deputy appointed by the Court of Protection must be disregarded by a local authority when deciding whether the injured person can be required to contribute to the cost of care services which he or she receives.
Held: It was to be disregarded.

Leggatt J
[2014] EWHC 1918 (Admin), [2014] WLR(D) 255
Bailii, WLRD
National Health Services and Community Care Act 1990 47, National Assistance (Assessment of Resources) Regulations 1992 21

Personal Injury, Benefits, Local Government

Updated: 10 November 2021; Ref: scu.526516

Wurker v Familienkasse Nurnberg: ECJ 27 Feb 2014

ECJ Social security – Regulation (EEC) No 1408/71 – Family allowances – Articles 77 and 78 – Benefits for dependent children of pensioners and for orphans – Regulation (EC) No 883/2004 – Family benefits – Article 67 – Family members residing in another Member State – Concept of ‘pension’ – Recipient of a pension granted, pursuant to German legislation, for bringing up children following the death of the person from whom that recipient was divorced (‘Erziehungsrente’)

C-32/13, [2014] EUECJ C-32/13
Bailii
European

Benefits

Updated: 10 November 2021; Ref: scu.521843

Kaczmarek v Secretary of State for Work and Pensions: CA 27 Nov 2008

The claimant entered the UK as a student coming from Poland. She then worked as a kitchen maid, but having left that job on becoming a mother was refused income support. She later returned to work. She said that the rules which denied her benefit were inconsistent with articles 12 (discrimination on the grounds of nationality) and 18 (free movement of workers) of the Treaty, relying on Trajani.
Held: The appeal failed. Abdirahman could not be said to be per incuriam so as to allow the applicant to rely on article 12. Nor could article 18 be read to include a class or workers who had been explicitly excluded.
Maurice Kay LJ said that if a citizen of one Member State who is lawfully present in another Member State can, without difficulty and whilst economically inactive, access the social security benefits of the host State, the implications for the more prosperous Member States with more generous social security provisions are obvious. The rules that regulation 2 of the 2002 Regulations lays down are intended to meet this problem. There are various ways in which the pre-condition for entitlement can be achieved under its provisions. They are not exclusively dependent on the nationality of the persons concerned.

Sir Anthony Clarke MR, Maurice Kay LJ, Stanley Burnton LJ
[2008] EWCA Civ 1310, Times 04-Dec-2008, [2009] Eu LR 402, [2009] 2 CMLR 85, [2009] PTSR 897, [2009] 2 CMLR 3
Bailii
Income Support (General) Regulations 1987, Immigration (European Economic Area) Regulations 2000, EU Treaty 12 18
England and Wales
Citing:
Cited – Abdirahman v Secretary of State for Work and Pensions CA 5-Jul-2007
The appellants were economically inactive EEA nationals who were lawfully present in the UK and who appealed against refusal of their claims for social security benefits under Articles 12 18.
Held: The appeal failed. For Art 12, the benefits . .
Cited – Baumbast and Another v Secretary of State for the Home Department ECJ 17-Sep-2002
The first applicant, his wife and her children had been granted leave to stay in the UK. At the time the leave was withdrawn the children were settled in schools, and were granted indefinite leave. The second applicant was the mother of children who . .
Cited – Martinez Sala v Freistaat Bayern ECJ 12-May-1998
ECJ A benefit such as the child-raising allowance, which is automatically granted to persons fulfilling certain objective criteria, without any individual and discretionary assessment of personal needs, and which . .
Cited – Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve ECJ 20-Sep-2001
ECJ Reference for a preliminary ruling: Tribunal du travail de Nivelles – Belgium. Articles 6, 8 and 8a of the EC Treaty (now, after amendment, Articles 12 EC, 17 EC and 18 EC) – Council Directive 93/96/EEC – . .
Cited – Trojani v Centre public d’aide sociale de Bruxelles (CPAS) ECJ 7-Sep-2004
EAT Freedom of movement of persons – Citizenship of the European Union – Right of residence – Directive 90/364/EEC – Limitations and conditions – Person working in a hostel in return for benefits in kind – . .

Cited by:
Cited – Patmalniece v Secretary of State for Work and Pensions SC 16-Mar-2011
The claimant challenged as incompatible with EU law, the Regulations which restricted the entitlement to state pension credit to those entitled to reside in the UK.
Held: The appeal failed (Majority). The conditions imposed by the Regulations . .

Lists of cited by and citing cases may be incomplete.

European, Benefits

Updated: 10 November 2021; Ref: scu.278300

Kerr v Department for Social Development (Northern Ireland): HL 6 May 2004

Wrongful Refusal of Benefits

The claimant was estranged from his family, but claimed re-imbursement of the expenses for his brother’s funeral. The respondent required him to establish that none of his siblings was in a better position than he to pay for the funeral, but he had no means of contacting them.
Held: Deciding a claim required several decisions as to facts. The Department had acted unreasonably. In practice it had access to the information which they required from the claimant, and should not have denied the benefit where the claimant was unable to supply information they could themselves provide. The Department should bear the burden of the collective ignorance and pay the claim.
Baroness Hale said: ‘What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced.’

Lord Steyn, Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Baroness Hale of Richmond
[2004] UKHL 23, Times 13-May-2004, [2004] 1 WLR 1372, [2004] 4 All ER 385
Bailii, House of Lords
Social Fund (Maternity and Funeral Expenses) (General) Regulations (Northern Ireland) 1987, Social Security Contributions and Benefits (Northern Ireland) Act 1992 134(1)(a)
Northern Ireland
Citing:
Cited – Irving v Minister of Pensions SCS 1945
Appeals were against decisions of Pensions Appeal Tribunals relating to claims for pensions in respect of death or disablement by war injuries. Article 4(1) of the Royal Warrant concerning Retired Pay, Pensions, etc dated December 1943 (Cmd 6489) . .
Cited – Regina v Medical Appeal Tribunal (North Midland Region), Ex parte Hubble 1958
The claimant sought to receive money out of insurance funds fed by contributions from all employers, insured persons and the Exchequer. The procedure for determining whether the claimant is entitled to a disability benefit was said to be more like . .
Cited – Nimmo v Alexander Cowan and Sons Ltd HL 1967
The employer was prosecuted under the 1961 Act.
Held: the burden of proving that it was not reasonably practicable to make and keep a place of work safe rested upon the defendant employer. If an exception was to be established, it was for the . .
Cited – Rees v Hughes 1946
The need to arrange for funerals is a common law obligation ‘in the nature of a public duty’. . .
Cited – Regina v Secretary of State for Social Services, Ex parte Child Poverty Action Group CA 1989
The applicants sought judicial review of the failures by the respondent in processing claims for benefits. They asked that there should be a declaration that the respondent had a duty to refer a claim to an adjudication officer as soon as it was . .

Cited by:
Cited – Mote v Secretary of State for Work and Pensions and Another CA 14-Dec-2007
The appellant was accused of having received income benefits to which he was not entitled. A prosecution was commenced and at the same time he appealed to the tribunal against the decision that there had been an overpayment. The authorities . .
Cited – REW, Regina (on the Application of) v Secretary of State for Work and Pensions Admn 13-Jun-2008
The claimant sought permission to bring judicial review of decisions of the Child Support Agency. He said that his payments should have been reduced for a period when he was in receipt of job seeker’s allowance. A liability order had been made . .
Cited – Novitskaya v London Borough of Brent and Another CA 1-Dec-2009
The claimant appealed refusal of her claim for arrears of housing benefit.
Held: The appeal was allowed. The claim had been defective in having been made informally, but ‘the distribution of benefits is different from many other areas of civil . .

Lists of cited by and citing cases may be incomplete.

Benefits, Northern Ireland

Leading Case

Updated: 10 November 2021; Ref: scu.196619

The Child Poverty Action Group v Secretary of State for Work and Pensions: SC 8 Dec 2010

The Action Group had obtained a declaration that, where an overpayment of benefits had arisen due to a miscalculation by the officers of the Department, any process of recovering the overpayment must be by the Act, and that the Department could not use the law of unjust enrichment. The Department Appealed.
Held: The appeal failed. Section 71 of the 1992 Act is the only route to recovery of social security benefits overpayments to the exclusion of any common law rights. Historically there had been a division between the adjudication and quantification of the benefit award and on the one hand and the payment of the award on the other. Section 71 was not a limit on the appellant’s powers, but rather created one where none had existed. Outside it there was no power of recovery.

Lord Phillips (President), Lord Rodger, Lord Brown, Lord Kerr and Sir John Dyson SC
[2010] UKSC 54, UKSC 2009/0202, [2011] 1 All ER 729, [2011] 2 AC 15, [2011] 2 WLR 1, [2011] PTSR 185
Bailii, SC Summary, SC, Bailii Summary
Social Security Benefits Act 1992 71
England and Wales
Citing:
At First Instance – Child Poverty Action Group, Regina (on the Application of) v Secretary of State for Work and Pensions Admn 27-Feb-2009
Challenge to defendant’s practice in seeking recovery of overpayments.
Held: The court refused to grant a declaration that the respondent could not use common law or equitable powers to recover over-payment of benefits where the payee had . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Appeal from – Child Poverty Action Group, Regina (on the Application of) v Secretary Of State for Work and Pensions CA 14-Oct-2009
CPAG appealed against a refusal of a declaration that the respondent could use only the 1992 Act to recover overpayment of benefits where there had been neither misrepresentation nor non-disclosure.
Held: The appeal succeeded, and the court . .
Cited – Total Network Sl v Revenue and Customs HL 12-Mar-2008
The House was asked whether an action for unlawful means conspiracy was available against a participant in a missing trader intra-community, or carousel, fraud. The company appealed a finding of liability saying that the VAT Act and Regulations . .
Cited – Deutsche Morgan Grenfell Group Plc v Inland Revenue and Another HL 25-Oct-2006
The tax payer had overpaid Advance Corporation Tax under an error of law. It sought repayment. The revenue contended that the claim was time barred.
Held: The claim was in restitution, and the limitation period began to run from the date when . .
Cited – Marcic v Thames Water Utilities Limited HL 4-Dec-2003
The claimant’s house was regularly flooded by waters including also foul sewage from the respondent’s neighbouring premises. He sought damages and an injunction. The defendants sought to restrict the claimant to his statutory rights.
Held: The . .
Cited – Regina v Special Commissioner And Another, ex parte Morgan Grenfell and Co Ltd HL 16-May-2002
The inspector issued a notice requiring production of certain documents. The respondents refused to produce them, saying that they were protected by legal professional privilege.
Held: Legal professional privilege is a fundamental part of . .
Cited – Johnson v Unisys Ltd HL 23-Mar-2001
The claimant contended for a common law remedy covering the same ground as the statutory right available to him under the Employment Rights Act 1996 through the Employment Tribunal system.
Held: The statutory system for compensation for unfair . .

Cited by:
Cited – Legal Services Commission v Henthorn QBD 4-Feb-2011
lsc_henthornQBD11
The claimant sought to recover overpayments said to have been made to the defendant barrister in the early 1990s. Interim payments on account had been made, but these were not followed by final accounts. The defendant, now retired, said that the . .
Cited – Revenue and Customs v The Investment Trust Companies SC 11-Apr-2017
Certain investment trust companies (ITCs) sought refunds of VAT paid on the supply of investment management services. EU law however clarified that they were not due. Refunds were restricted by the Commissioners both as to the amounts and limitation . .

Lists of cited by and citing cases may be incomplete.

Benefits, Equity

Updated: 10 November 2021; Ref: scu.426897

TS (By TS) v Secretary of State for Work and Pensions (DLA); EK (By MK) v Secretary of State for Work and Pensions (DLA): UTAA 12 Oct 2020

UT May not Consider Breach of PSED

1. The Upper Tribunal does not have jurisdiction on a statutory appeal to consider breaches of the Public Sector Equality Duty (‘PSED’). Obiter dicta in AK v SSWP [2017] UKUT 420 (AAC) followed. Decision of the High Court in Hamnett v Essex CC [2014] EWHC 246 (Admin) not followed. 2. If, contrary to 1, the Upper Tribunal does have jurisdiction in respect of the PSED, SSWP was in breach of it in relation to children aged 3-16 in extending the Past Presence Test (PPT) from 26 weeks to 104 weeks. 3. The extension of the PPT is in breach of Art 14 with A1P1 in relation to the appellant British national children returning to Great Britain from a period of residence abroad. FM v SSWP [2017] UKUT 380 not followed. 4. Where the challenge is directed to the human rights implications of making existing legislation more onerous, the appropriate remedy is to disapply the amending legislation: RR v SSWP [2019] UKSC 52 applied. 5. The existing line of authority derived from CSDLA/852/2002 regarding advance claims for Disability Living Allowance followed.

[2020] UKUT 284 (AAC)
Bailii
England and Wales

Benefits

Updated: 09 November 2021; Ref: scu.656589