Transferring PIP and ESA when moving between NI and GB
On 6 April 2016, new rules come into force which will ensure that people moving between Northern Ireland and Great Britain will not have to make fresh claims or go through a stressful new Work Capability Assessment for:
- Employment and Support Allowance (ESA);
- Personal Independence Payment (PIP) when it is introduced in Northern Ireland from 20 June 2016.
The Social Security (NI Reciprocal Arrangements) Regulations 2016 provide for a decision to be recognised once the person moves within the UK without further assessment.
Law Centre (NI) has in the past sought to have ESA included in the former Reciprocal Arrangements between NI and GB. As a result, DSD and DWP had set up an extra statutory scheme for ESA claimants who suffered financially due to moving between the two jurisdictions.
It now seems that the extra statutory scheme will not be relevant to people moving between NI and GB from 6 April 2016, but it remains unclear how those currently covered by the scheme will be affected.
Read SR 2016.No 287 here.
Deprivation of liberty in health and social care: the Cheshire West case
The Law Centre has published a briefing for those who wish to understand the law governing deprivation of liberty and the duties upon HSC Trusts to ensure any decision made to deprive an adult without capacity of their liberty within a care setting is lawful, including:
- HSC staff;
- service users;
The briefing examines a decision of the UK Supreme Court which provides a simple test which should be applied by health and social care (HSC) staff in order to identify whether a deprivation of liberty situation exists or is going to occur within a service user’s current or proposed living arrangements.
Welfare reform mitigations: next steps
Law Centre (NI) has published a briefing outlining its recommendations on effective implementation of welfare reform mitigations in Northern Ireland:
Significant work has taken place over recent years to secure mitigations for Northern Ireland to alleviate some of the difficulties with welfare reform. The Fresh Start Agreement allocates £585 million for mitigating welfare reform and tax credits. This is very welcome.
The Welfare Reform Mitigations Working Group Report (the “Evason report”) proposes mitigations that will make a significant difference to the lives of those in receipt of social security benefits in Northern Ireland. Specifically, the proposed mitigations will act as a buffer against some of the harsher effects of welfare reform.
The Assembly's Social Development Committee has now started to scrutinise the implementation of mitigations.
The Law Centre's paper set out a number of recommendations for the Committee to consider: some are targeted specifically at the operation of the migration measures whereas others relate more broadly to the implementation of welfare reform in Northern Ireland.
Given that the proposed mitigation measures come in £80 million under budget, we have also suggested additional areas of spend that the Committee may wish to consider which could further soften the impact of changes to the social security system.
We are recruiting: Policy & Public Affairs Officer
The Policy & Public Affairs Officer will positively influence policy matters related to the objectives of the Law Centre. Essential criteria include two years of policy and public affairs work. Full time post, based in Belfast.
Salary: £28,127 - £30,311. NJC Points: 33-36
Closing date for applications: 18 March 2016 at 1.00pm.
Interviews: 8 April 2016
Proposed changes to temporary absence for Housing Benefit and Pension Credit
Plans to redefine temporary absence for Housing Benefit and Pension Credit could be problematic for claimants moving between NI and GB
The Law Centre and Housing Rights have published a joint response to the Social Security Advisory Committee consultation on changes to allowed temporary absence for Housing Benefit and Pension Credit.
DWP proposes to amend the Housing Benefit and State Pension Credit regulations to reduce the period of allowable absence from outside Great Britain, generally from 13 weeks to 4 weeks. It is a condition of entitlement to both benefits that claimants are in Great Britain, although the regulations provide that temporary absences are permitted in some instances. This is part of a series of measures to harmonise existing Regulations with the Universal Credit system.
In this response, Law Centre (NI) and Housing Rights highlight that plans to redefine “temporary absence” for Housing Benefit /pensions might create difficulties for claimants moving between Northern Ireland and Great Britain.
We do not support the proposed changes. However, if the changes do proceed, we would recommend that the Social Security Advisory Committee seek a commitment from the Department to monitor the impact of these Regulations given their potential impact.
We would also recommend that the Social Security Advisory Committee scrutinises the equivalent Northern Ireland regulations when available.
See the response here: Housing Benefit and State Pension Credit (Temporary Absence) (Amendment) Regulations 2016
Community justice awards
Congratulations to the winners of the Department of Justice Community Justice Awards 2016.
Paul McCartney of First Housing Aid and Support Services in Derry was named Justice Champion 2016 in recognition of his work for the most vulnerable and marginalised. He received £1,000 which will be used for his project to benefit the local community.
Paul McCartney is the Night Support Services Manager with First Housing Aid & Support Services, Derry who regularly works with street drinkers and rough sleepers in the northwest.On a daily and nightly basis Paul and his team patrol the streets to ensure that the most vulnerable have shelter and food, effectively providing these individuals with an alternative to continuing to drink or remain on the streets where both they and members of the public are at risk of anti-social behaviour.
Other 'highly commended' award winners were: NIACRO RESET Mentoring Team; Elaine Morrow, volunteer with the Youth Justice Agency; Danny Corr, Zanshin Karate Jutsu DoJo; Billy O’Flaherty, Carniny Amateur Football Club; Lorna Brown, Grainne Richards & Vicki Kearney, Belfast and Lisburn Women’s Aid; Constable Mark McGaritty, Police Service of Northern Ireland; Rory Doherty, Quaker Services; Mary Hogg, Cookstown Street Angels.
The Law Centre was very pleased to have been nominated for an award for its anti-trafficking work.
More information on DoJ's website
New regulations on State Pension in Northern Ireland
Northern Ireland regulations on State Pension for people reaching pensionable age on or after 6 April 2016 came into force on 25 February.
The regulations bring into force provisions of the Pensions Act (Northern Ireland) 2015 which cover:
- setting the full rate of the new State Pension ;
- how to calculate the extra new State Pension a person may receive if they delay claiming, or choose to suspend, their new State Pension ;
- inheritance of graduated retirement benefit as part of a person’s new State Pension ;
- the circumstances in which a person who is an overseas resident is not entitled to up-rating increases of their new State Pension ;
- national insurance credits in the new State Pension system.
See SR.No.68/2016: Pensions (2015 Act) (Commencement No. 3) Order (Northern Ireland) 2016.
On 1 March, the new rate was set at £155.65 per week, starting 6 April 2016. See: The State Pension (Amendment No. 2) Regulations (Northern Ireland) 2016
With thanks to RightsNet for help with compiling this information.
Welfare reform NI: the benefit cap
The benefit cap: what is it?
Regulations have now been passed which means that the benefit cap will apply in Northern Ireland from 31 May 2016.
The benefit cap limits the amount, in total, that claimants can receive from a list of specified benefits.
The cap is currently:
- £350 a week for single claimants
- £500 for couples, with or without dependent children
- £500 for lone parent families
How will it be applied?
Where a person’s benefit entitlement exceeds the cap, the reduction will be from the person’s Housing Benefit award.
What benefits are taken into account?
Most benefit income is taken into account:
- Bereavement Allowance
- Child Benefit
- Child Tax Credit
- Employment and Support Allowance (ESA)
- Guardian’s Allowance
- Housing Benefit
- Incapacity Benefit
- Income Support
- Jobseeker's Allowance (JSA)
- Maternity Allowance
- Severe Disablement Allowance
- Widowed Parent's Allowance
- Widowed Mothers Allowance
- Widows Pension
Are there any exemptions?
The cap will not apply where the person claiming or her/his partner is receiving one of the following benefits:
- Disability Living Allowance (including if received for a dependent child)
- Working Tax Credit
- Attendance Allowance
- Industrial Injuries Disablement Benefits
- Employment and Support Allowance, if paid with the support component
- War Widow's or War Widower's Pension.
- Carer’s Allowance
The cap will also not apply where the person claiming or her/his partner had, in at least 50 out of the last 52 weeks, been in employment and not entitled to Income Support, JSA or ESA. In these circumstances, the cap will not apply for 39 weeks from the day after the last day of employment.
Additional exemptions as part of NI welfare reform mitigations
Two additional exemptions apply specifically to Northern Ireland as part of the welfare reform mitigations.
The first mitigation ensured that those in receipt of Carer’s Allowance were exempt from the cap: this has now been inserted into the legislation.
The second mitigation ensures that any families with children not exempt under the above provisions will receive a supplementary payment to compensate for any deduction made as a result of the cap being applied. This applies for up to four years.
Expected timeline of welfare reform in Northern Ireland
Please note: this is a rough timeline which could substantially change as the implementation of welfare reform develops in Northern Ireland. We will endeavour to keep you updated of any changes.
17 February 2016 - Abolition of ESA in Youth for new claims - now in force
1 April 2016
For ESA, JSA and IS, the waiting period before housing costs (including help with mortgage interest) can be met is increased from 13 weeks to 39 weeks
4 April 2016
The amount a person can pay as a penalty in order to avoid prosecution changes from 30% of the overpayment to 50% (subject to a maximum of £2,000)
31 May 2016
Introduction of the Benefit Cap
Late May/ early June 2016
Introduction of Mandatory Reconsideration and Direct Lodgment of appeals
20 June 2016
DLA abolished for new claims and replaced by Personal Independence Payment. Start of “natural reassessment” of existing DLA claimants for PIP
Introduction of new “Fraud and Error” provisions – changes to overpayments and how they can be recovered
Launch of Universal Credit pilot
31 October 2016
Time-limiting of contributory ESA to 365 days
Also applies to those in receipt of ESA in Youth
Time limit is retrospective but days in the support group do not count towards the 365 day time limit
Discretionary Support Payments replace discretionary Social Fund
Start of “managed reassessments” of existing DLA claimants for PIP
16 January 2017
For Income Support, the age of the youngest child for which a person is responsible in order to be treated as a lone parent changes from 7 to 5 years old.
Similar changes are made to JSA regarding availability for work for lone parents where the youngest child is aged 5.
Other changes to be confirmed, depending on the passage of the Welfare Reform and Work Bill 2015/2016
These could include:
- Lowering the benefit cap to £20,000 per year
- Freeze on working age benefit rates
- Reductions in the amount of Child Tax Credit and the child element on Universal Credit – limited to two children, no higher amount for first child
- Reductions in the earnings disregards in Universal Credit
- Removal of the Work Related Activity Component for new claimants to ESA
- Changes to conditionality under Universal Credit for carers and lone parents where the youngest child is aged between 1-3 years
- Support for Mortgage Interest to be replaced by a loan system
Free welfare reform training event
2016 Belfast Festival of Learning Event
Welfare Reform: The Basics - free public ½ day training course
Monday 7 March 2016, 1.30-4.30
This course offers you a chance to increase your knowledge of welfare reform.
This 1/2 day course offers everyone a chance to increase their knowledge of Welfare Reform. It will primarily cover Universal Credit (UC) and Personal Independence Payment (PIP), summarising these benefits and illustrating the significant changes involved. However, it will also include other changes associated with Welfare Reform, including Contributory ESA changes, 'bedroom tax,' the benefit cap and a lot more besides. This course will be specifically designed to for the lay person to help them make sense of the benefit changes that are to occur over the coming months and years. The training will be provided within a training room close to the center Belfast (situated close to the central library in Belfast) and tea, coffee and biscuits will be provided.
Venue: Law Centre (NI), 124 Donegall Street, Belfast BT1 2GY
Application forms available at: www.lawcentreni.org/application-forms/short-form.html
Applications should be returned to Law Centre (NI) 124 Donegall Street, Belfast, BT1 2GY by Thursday 3 March 2016 by Fax on 028 9023 6340 or by email at:
This course is free
20 places available
New NI human trafficking statistics
The national human trafficking statistics for 2015 have just been published. Across the UK, there has been a substantial rise (40%) in human trafficking, with labour exploitation being the largest category of exploitation
Annex B shows the Northern Ireland figures. The number of victims identified here in 2015 has increased to 53.
Given the prevalence of labour exploitation, it is really important that workers know how to get help. The Law Centre has produced a leaflet that is available in different languages - if you would like a copy please ring on 028 9024 4401.
Train with Law Centre (NI): new courses at a glance
Welfare reform, health and social care, immigration, trafficking, advocacy - we have an exciting selection of courses for you in the next few weeks.
Agency worker receives £5,900 for breach of equal pay rights
"I hope that my story will give others the confidence to ask for what they are entitled to."
Law Centre (NI) client Andrea Richardson has received over £5,900 in compensation in a settlement for breach of the law which protects agency workers’ rights.
In her application to the Industrial Tribunal, Ms Richardson claimed that she was entitled to equal pay with direct employees of the organisation she was working for.
In a settlement reached on the morning of the hearing, Kennedy Recruitment Limited and an umbrella company, called Zeva, admitted being in breach of the Agency Workers Regulations (Northern Ireland) 2011.
Welcoming the result, Ms Richardson said:
“I hope that my story will give others the confidence to ask for what they are entitled to. While agency work can suit some people, I am not an agency worker by choice – the lack of permanent, direct employment has made it my only option. The job insecurity that comes with agency work can be stressful and it is important that our rights are protected.”
The regulations were introduced to protect the rights of agency workers. Law Centre’s director Glenn Jordan is concerned that the Regulations are not benefiting agency workers to the extent that was envisaged at the time they were introduced. He added:
“We will continue to highlight cases where we believe that agency workers’ rights have been breached so that the Agency Workers Regulations truly work as they were intended, to protect agency workers.”
Andrea Richardson had been recruited by Kennedy Recruitment Limited to work with Land and Property Services (a division of the Department of Finance and Personnel) for ten months as a mapping and charting officer. She was paid less than mapping and charting officers employed directly by Land and Property Services.
Near the end of her time with the Land and Property Services, Andrea discovered that she might be on a type of contract - known as a Swedish Derogation contract - that allows a worker on an employment contract with an agency to be paid less than a direct employee in certain circumstances. Andrea contacted Kennedy Recruitment Ltd. to ask about her rights under her contract. She was told that her employer was in fact the umbrella company Zeva.
At this stage, Andrea contacted Law Centre (NI) for help.
Caroline Maguire, employment legal adviser at the Law Centre, assisted Andrea to lodge an employment tribunal case to claim that she was entitled to the same rate of pay as direct employees of Land and Property Services.
Kennedy Recruitment Ltd. and Zeva settled the case on the basis that, since there was no employment contract with Andrea before she started her work at Land and Property Services, she was not on a valid Swedish Derogation contract and should not therefore have received less pay than colleagues employed directly by the Land and Property Service.
Andrea received the full value of her back pay.
Protecting agency workers’ rights
Caroline Maguire said:
“This case is a reminder to other agency workers that they may need to check whether they are entitled to the same rate of pay as colleagues who are direct employees.
We don’t know the extent to which agency workers in Northern Ireland are losing out on their employment rights but it’s not the first time the Law Centre has advised agency workers who have been affected by Swedish Derogation type contracts.
It’s important for all agency workers to check the status of their contract with their agency and seek advice if they have concerns.”
The Swedish Derogation
Under the Agency Workers Regulations (Northern Ireland) 2011, after 12 weeks in the same post, agency workers should normally be paid the same amount as direct employees doing similar work in their workplace (in Andrea’s case, employees of Land and Property Services).
A clause in the regulations, called a ‘Swedish Derogation’ or ‘Regulation 10’ contract, entitles agencies to continue to pay them less if, in exchange, the agency has entered into a contract with the worker which:
- gives the worker a permanent contract as an employee of the agency (in Andrea’s case, either Kennedy Recruitment or Zeva),
- provides for a minimum amount of pay for the first four weeks after an assignment ends, and
- requires the agency to actively look for suitable alternative work for the worker.
The employment contract agreeing these arrangements must be signed before the worker’s assignment starts.
Law Centre (NI)'s employment legal advice line is open from 9.30am to 1pm Monday to Friday: 028 9024 4401
First set of rules on Northern Ireland's welfare reform applies from today
The first set of regulations regarding the implementation of welfare reform in Northern Ireland has been published.
Today 17 February, the Welfare Reform (Northern Ireland) Order 2015 (Commencement No. 1) Order 2016 (SR.No.46/2016) brings into force some of the provisions of the Welfare Reform Act, including provisions on:
- removal of Employment and Support Allowance (ESA) in youth
- dual entitlement to ESA
- the Social Fund and discretionary payments to persons suffering disadvantage
- the benefit cap
- information sharing
- application of the limitation on recovery of benefit overpayments
- regulations making powers for Jobseeker's Allowance
The regulations also cover provisions coming into force at later dates:
4 April 2016
- other provisions on the recovery of overpayments
- penalties as alternative to prosecution
13 June 2016
- new time limits for entitlement to contributory ESA and entitlement after the time limit has been reached
16 January 2017
- entitlement to Income Support for lone parents restricted to those with children under 5 years of age.
Watch: NI welfare reform in focus
Law Centre (NI) continues its series of programmes with Northern Visions NVTV, with an introduction to welfare reform in Northern Ireland.
LSP volunteer gets DLA award for client
Law Centre (NI)'s Legal Support Project (LSP) successfully represented a woman in an appeal against refusal of Disability Living Allowance (DLA).
The client suffered from asthma, fibromyalgia, depression and anxiety. As a result, she found it difficult to go out unaccompanied and experienced difficulties with self- care.
The LSP helped her to collect supportive medical evidence for her appeal and an LSP volunteer represented her at the hearing. The tribunal awarded the Low Rate Mobility component for a two year period.
The client received a backdated payment of £847.95 and £21.80 per week for the remainder of the two-year period.
The LSP relies on pro-bono work to help people who would otherwise go unrepresented at social security and employment tribunals.
Social Security Advisory Committee meets local advisers at the Law Centre
On 10 February, Law Centre (NI) hosted a meeting between the Social Security Advisory Committee (SSAC) and members of the Welfare Reform Group. SSAC is consulting local agencies on the impact of welfare reform and other benefits issues.
SSAC is a UK-wide advisory non-departmental public body with an important role in scrutinising social security legislation.
Convened by the Law Centre, the Welfare Reform Group is a coalition of voluntary and community organisations whose client groups are affected by welfare reform developments.
Belfast High Court rules Widowed Parent’s Allowance applies to unmarried mother
Law Centre (NI) welcomes this week's ruling in favour of an unmarried mother who launched legal action over her inability to access a widowed parent's allowance.
Citizens Advice had applied to Belfast High Court for judicial review on behalf of a client whose children were denied bereavement benefits following the death of her partner of 23 years.
The Court ruled that the client had no claim to the lump sum bereavement benefit but that she should have access to a £112.55 weekly payment, conferred due to parentage.
In his judgment, Mr Justice Treacy said: "Even allowing for the State's margin of appreciation, I do not consider that the exclusion of the applicant from widowed parent's allowance on the grounds of her marital status can be justified.
"Indeed, it may seem somewhat strange to rely, as a justification for the restriction, on the contention that it promotes the institution of marriage and civil partnership when parents, whatever the status of the relationship, owe the same financial or legal duties towards their children.”
The Law Centre congratulates Citizens Advice on this significant decision with potential UK-wide implications.
NIJAC seeks to appoint County Court Judge and CICAP Lay Member
County Court judge
Northern Ireland Judicial Appointments Commission is inviting applications for the office of County Court Judge. It is intended to make one appointment (and to create a reserve list).
The scheme is open to applications from Friday 22 January 2016 and completed applications must be received by NIJAC no later than 12 (noon) on Monday 15 February 2016.
Further details: NIJAC- Current Opportunities
NIJAC is also inviting applications for appointment to the office of fee paid Adjudicator (Lay Member) of the Criminal Injuries Compensation Appeals Panel for Northern Ireland (CICAP).
Further details: NIJAC- Current Opportunities
Missed our welfare reform seminar?
Listen or read about it here
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