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Social Security Tribunal can disapply secondary legislation which breaches human rights

A significant decision by a panel of Social Security Commissioners in a recent Law Centre NI case has confirmed that a Social Security Tribunal should disapply secondary legislation in cases where it is incompatible with human rights legislation.

The case related to an appeal by our client, “Amy” who had been refused Personal Independence Payment (PIP), despite previously being awarded Disability Living Allowance (DLA).

Amy had applied for PIP based on needs arising from Asperger’s Syndrome, but the Department for Communities did not grant the award as it concluded that Amy did not satisfy the legislative criteria for the mobility component relating to planning and following journeys.

In 2017, the PIP legislation in Great Britain and Northern Ireland was amended to explicitly exclude entitlement to some claimants that had difficulty planning and following journeys as a result of “psychological distress”.

This potentially affected people with a wide range of conditions including learning disability, autism, schizophrenia, social phobias, anxiety conditions and early dementia. Amy’s PIP claim was decided on the basis of this legislation.

Shortly afterwards, the High Court in England ruled that these controversial changes to the Great Britain legislation were unlawful because they discriminated against people with disabilities by breaching their human rights.

The decision in the case (RF v Secretary of State for Work and Pensions) made clear that decision makers, Tribunals and Courts in England and Wales should not apply secondary legislation if doing so would breach the claimant’s – or their family’s – human rights.

Although the ruling did not extend to Northern Ireland, relying on RR v SSWP [2019] UKSC 52 and O’Donnell v DfC [2020] NICA 36, we successfully argued that the Tribunal must follow the authority of RF v SSWP and disapply a provision of subordinate legislation which would result in it acting incompatibly with a claimant’s Human Rights.

Amy’s appeal was successful, and her case will now be heard again by a new Tribunal, which has been directed to disapply the Northern Ireland legislation, then in place, which excludes claimants who suffer psychological distress.