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Law Centre NI
Social Security Law and Practice
Bulletin | Spring 2022
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What's inside...
- A summary of recent cases including:
- The decision of the CJEU in VI v. Commissioners for Her Majesty's Revenue and Customs (Case-247/20).
- Decisions of the Northern Ireland Social Security Commissioner from October to December 2021.
- An introduction to Law Centre NI's new Director of Innovation and Engagement, Sarah Corrigan.
- News from our social security team.
- The latest Northern Ireland Social Security legislation.
- Our recent publications.
- Training at Law Centre NI.
We would love to hear your views about our Bulletin and the topics you would like us to cover in future editions. You can do this by taking the following 5 minute survey: Readers Survey
To join our mailing list, click here. To access past editions of our Social Security Law and Practice Bulletin, click here. |
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NHS constitutes comprehensive sickness insurance under EU free movement law
On 10 March 2022, the Court of Justice of the European Union ('CJEU') delivered a significant decision in VI v. Commissioners for Her Majesty's Revenue and Customs (Case-247/20): a Law Centre NI case involving claims for Child Tax Credit and Child Benefit.
The case is important because the CJEU decided that the free medical cover provided by the NHS constitutes 'comprehensive sickness insurance' for the purpose of EU free movement law. This means that private health insurance, in addition to NHS cover, was not required for certain EU citizens to have a right to reside for benefit purposes.
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Social Security Commissioner Decisions
Oct - Dec 2021
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DT v. Department for Communities (PIP) [2021] NI Com 54
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Introducing our Director of Innovation and Engagement, Sarah Corrigan
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Meet, Sarah Corrigan, Law Centre NI's new Director of Innovation and Engagement.
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What does your role at Law Centre NI involve?
My job is a new role within the Law Centre, introduced as part of our continuing growth and development as the regional Law Centre in Northern Ireland. As part of the senior leadership team, I lead on innovation and engagement, working to ensure that Law Centre NI lives its vision, mission and values. I provide leadership on our policy, training, information and quality work, and I will be working closely with our Members to ensure they and others get the services they need from Law Centre NI.
What did you do before joining Law Centre NI?
I was the Project Manager and Solicitor at the Public Interest Litigation Support Project ('The PILS Project'). The PILS Project is a membership organisation that supports Non Governmental Organisations and Solicitors in taking public interest cases that focus on protecting and realising human rights and equality. I started my career as a volunteer at Housing Rights in 2009. I was there for 10 years, during which time I qualified as a solicitor and ultimately led the legal team.
Finally, what's your favourite social justice quote?
'Where after all do human rights begin? In small places, close to home' – Eleanor Roosevelt
Welcome to the team, Sarah!
Contact Sarah at sarah.corrigan@lawcentreni.org.
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News from our social security team
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Campaign to help claimants subject to official error overpayments
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In previous Bulletins, we've reported on the Department's recovery of benefit overpayments in cases of official error. We've highlighted how unfair this can be and how it can damage a claimant's mental and emotional health.
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In our Winter 2021/22 Bulletin, we reported that there have been thousands of official error overpayments in Northern Ireland over the last two years; with an increase of more than 50% in cases between 2019/20 and 2020/21. This equates to millions of pounds of recoverable debt from social security claimants. (These statistics have been provided by the Department for Communities, however, please note that the data was not quality assured to the standard of published Official Statistics.)
Claimants do have the option of requesting a Discretionary Waiver of overpayment debt, but we do not believe this option is widely known by advisers or claimants.
In February 2022, the Department for Work and Pensions published new guidance to staff on when to grant a Discretionary Waiver. We anticipate that the Department for Communities will shortly do the same. In response, we have intensified our campaign to urge the Department to make changes that would help claimants.
We are asking the Department to:
- Amend forthcoming staff guidance to encompass a fourth test of ‘unfairness arising from official error'.
- Improve claimants’ awareness of Discretionary Waiver.
- Improve data collection.
Read Law Centre NI's policy briefing Recovery of overpayments arising from ‘official error’: current problems and recommendations for change for more information.
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Social Security Co-ordination: which country pays your benefit?
At Law Centre NI, we’ve received lots of enquiries about the social security co-ordination rules between the UK and European countries following the UK’s departure from the European Union. In response, we've published an Adviser Practice Guide to help social security advisers navigate this complex area of law.
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Work Capability Assessments for Employment Support Allowance and Universal Credit
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Over the last few months, our Social Security Advice Line has received a number of queries concerning ESA and UC claimants who are subject to work capability assessment and who receive a UC50 form and a ESA50 form to complete. We have also received queries about claimants who receive different outcomes following their work capability assessments for UC and ESA.
Law Centre NI has prepared a Frequently Asked Questions document to help advisers and claimants navigate through such situations.
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Independent Review of Discretionary Support
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Discretionary Support (DS) is a scheme designed to provide emergency loans and grants to claimants in extreme, exceptional or crisis circumstances which present a significant risk to the health, safety or well-being of the claimant or their family. The purpose of the Review was to establish if DS is delivering for the people who need it most.
The Review's key findings and recommendations are summarised below:
- DS should be maintained, the budget protected, kept under review and expanded where necessary.
- Income thresholds should be adjusted to reflect household composition and claimants in receipt of income replacement benefits should be passported through the income threshold.
- Grants should be prioritised over loans, so that claimants are eligible for three grants and one loan, with an additional grant for items needed by those who move into unfurnished social housing.
- Efforts should be made to increase awareness of DS and claimants supported to apply.
- Eligibility criteria relating to extreme, exceptional or crisis circumstances should capture need that builds up over time, rather than just arising from a one-off situation.
- Greater transparency is required around decisions and reviews.
- The UC Contingency Fund and Covid self-isolation grant should be removed from the DS Scheme.
The Review concludes:
'The DS scheme is of critical importance and should be protected. The need for DS is likely to increase because too many individuals are unable to meet their essential needs from the income they receive through social security benefits or employment and so they remain at high risk of destitution. Tackling the failures in other parts of our social and economic systems that drive up the need for DS will always be more effective than providing emergency cash-limited relief under DS. Until that happens, DS will need to be redirected to those closest to or already in destitution.'
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Social Security Legislation
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Extension of 'terminal illness' definition
The Social Security (Terminal Illness) Act (NI) 2022 received Royal Assent on 30 March 2022.
The Act amends the Special Rules for Terminal Illness by extending the definition of terminal illness to include a progressive disease with an expectation of death within 12 months. This change enables a greater number of claimants to have fast-tracked access to benefits.
The change took effect on 4 April 2022 with the coming into force of the Social Security (Terminal Illness) (2022 Act) (Commencement) Order (NI) 2022.
Also from 4 April 2022, healthcare professionals will now complete a new SR1 medical report form, where their patient meets the Special Rules for Terminal Illness criteria. This form replaces the current DS1500 report. The Department will continue to accept the DS1500 report as an interim measure, pending supply of the SR1 form.
The Universal Credit and Employment Support Allowance (Claimant Commitment Exceptions) (Amendment) Regulations (NI) 2022, in operation from 15 February 2022, exempt terminally ill people from the requirement to accept a claimant commitment when claiming UC or ESA.
Under previous regulations it was left to a work coach's discretion to decide that a terminally ill person did not need to accept a claimant commitment. The Regulations remove that ambiguity, creating a specific exception for terminally ill people.
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Welfare Supplementary Payments (Amendment) Bill
The Welfare Supplementary Payments (Amendment) Bill reached its final stage at the NI Assembly on 1 March 2022 and will soon become law.
When in force, the legislation will extend the Welfare Supplementary Payment scheme which was introduced to mitigate the effects of the bedroom tax in Northern Ireland. The legislation will also require the Department for Communities to conduct a review and to report on other welfare mitigation schemes to inform decisions on extension beyond 31 March 2025.
The Welfare Supplementary Payment (Extension) Regulations (NI) 2022 ('the Extension Regulations') and Welfare Supplementary Payment (Amendment) Regulations (NI) 2022 ('the Amendment Regulations') came into force in February 2022.
The Extension Regulations remove the expiry date of 31 March 2020 from specified welfare mitigation schemes and replace it with a new expiry date of 31 March 2025. This legislates for the extension of schemes for people affected by the Benefit Cap, the time limiting of Contributory ESA, the loss or reduction of DLA on transition to PIP and any associated loss or reduction of disability-related premiums and carer payments.
The Amendment Regulations amend welfare mitigation schemes for people affected by the Benefit Cap and the bedroom tax, to remove some of the existing loopholes to entitlement.
Law Centre NI, as a member of the Cliff Edge Coalition, has been campaigning for legislative change in this area for several years. Read the Minister's acknowledgement of the contribution by the Cliff Edge Coalition and others here.
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Welfare assistance for people fleeing Ukraine
On 24 March 2022, the Social Security (Habitual Residence and Past Presence) (Amendment) Regulations (NI) 2022 came into force.
The Regulations provide that people who were living in Ukraine immediately before 1 January 2022, and who fled in connection with the Russian invasion, are exempted from residency and presence tests for means tested and disability and carer benefits when they arrive in Northern Ireland. This will allow people fleeing Ukraine, who have been granted leave or have the right of abode in the UK, to satisfy benefit residency conditions from day one of their arrival in Northern Ireland.
The Child Benefit and Tax Credits (Amendment) Regulations 2022 amend Child Benefit legislation to exempt people arriving from Ukraine from the requirement to have been living in the UK for at least three months before becoming entitled to Child Benefit. The Regulations also ensure that payments made under the Homes for Ukraine scheme are disregarded for the purpose of calculating entitlement to Tax Credits.
For information on visa options for people fleeing Ukraine, see Law Centre NI's recently published Legal Information Briefing.
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Energy payment support scheme
In March 2022, the Department for Communities introduced an Energy Payment Support scheme in response to rising energy costs in Northern Ireland.
One-off payments of £200 were made automatically to eligible claimants from 11 March 2022. Claimants are eligible if, in the qualifying week 13 December to 19 December 2021, they were resident in Northern Ireland and were in receipt of Pension Credit, Universal Credit, Income-related ESA, Income-based JSA or Income Support.
The Energy Payment Support Scheme (Amendment) Regulations (NI) 2022 allow for payments to be disregarded for social security benefit purposes.
If you think you are eligible and did not receive a payment by 28 March 2022, there is still time to claim. Claims must be made before 31 May 2022.
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Frontier workers can now claim UC
In our Winter 2021/22 Bulletin, we reported Law Centre NI's success in securing Tax Credits for a frontier worker who was unable to claim Universal Credit.
The Welfare Reform (NI) Order 2015 (Commencement No. 16 and Commencement No. 8, 13 and 14 and Transitional and Transitory Provisions (Amendment)) Order (NI) 2022 made miscellaneous amendments to UC legislation which took effect on 30 March 2022.
Article 4 of the Order removes the restriction on frontier workers claiming UC and, therefore, subject to any other exception that might apply, prevents frontier workers from making a claim for Tax Credits.
The Department for Communities indicates that NI Direct will soon be updated to contain practical details on how frontier workers can make a claim for UC. In the interim, where a UK postcode is required for the claim, the Department advises that claimants should use the postcode of their nearest Jobs and Benefits Office. For further advice and assistance on this, contact our social security advice line on (028) 90244401 or benefitsadvice@lawcentreni.org.
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Child Funeral Fund introduced in NI
The Social Fund (Child Funeral Fund) Regulations (NI) 2022, which come into force on 1 June 2022, establish a Child Funeral Fund (CFF) for Northern Ireland.
The CFF will provide a one-off lump sum payment to bereaved parents, guardians or carers to cover the basic cost of a funeral in the event of the death of a child up to the age of 18, and stillborn babies born after 24 weeks.
The payment is not means tested and can be paid to families or funeral directors.
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Disregard of Historical Institutional Abuse compensation payments
In response to the Historical Institutional Abuse (HIA) Inquiry in Northern Ireland, a Redress Board was established under the Historical Institutional Abuse (NI) Act 2019 to administer claims of awards of compensation to victims and survivors of historical abuse.
The Historical Institutional Abuse Inquiry recommended that compensation payments should be disregarded when assessing entitlement to means-tested benefits.
The Social Security (Income and Capital Disregards) (Amendment) Regulations (NI) 2021, in force from 5 January 2022, make the necessary amendments to social security legislation in NI to enable certain payments, including those made under the HIA redress scheme, to be disregarded when calculating a benefit award.
The Regulations ensure that people on means-tested benefits will not experience a reduction or withdrawal of benefits because of a payment from any of the schemes covered, or any future schemes which are established and approved by the Secretary of State.
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Local housing rates frozen for another year
The Local Housing Allowance scheme is a way of calculating the maximum amount of Housing Benefit and the housing costs element of Universal Credit payable to claimants in the private rented sector.
In March 2020, in response to the pandemic, the Department for Communities increased LHA rates to cover the lowest 30 percent of local rents from April 2020.
The Housing Benefit and Universal Credit Housing Costs (Executive Determinations) (Amendment and Modifications) Regulations (NI) 2022 maintain the rates at the same cash level for the financial year 2022/23. This means that all claimants who benefitted from the increase in April 2020 will continue to do so for another year.
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Digitalisation of fit notes
Currently, fit notes, which are issued and authorised by doctors following an assessment of a patient's fitness for work, must be completed in ink and signed in ink.
From 6 April 2022, the Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) Regulations (NI) 2022 remove this condition, requiring instead that the completing doctor's name is contained within the statement.
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Confused about social security co-ordination rules following Brexit? Our Adviser Practice Guide on Social Security co-ordination rules will help social security advisers navigate this complex area of law.
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Our Adviser Practice Guide on How to find legal information signposts social security advisers to sources of social security case law and legislation.
Download the poster to print off and put on your office wall. When you want to access the electronic links to the legal information resources in future, you can scan the QR code to get an online copy. From here, you will have legal information resources at your finger tips. |
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Part 1 of our Adviser Practice Guide on appealing to the Social Security Commissioner provides guidance to Social Security Advisers on identifying errors of law in Appeal Tribunal Decisions.
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Part 2 of our Adviser Practice Guide on appealing to the Social Security Commissioner outlines the procedure that applies to appeals from an Appeal Tribunal.
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OCN Level 2 Certificate in Social Security Advice - online
This course is for people who support those engaging with the benefits system, for example social workers, community workers and activists. The course will provide information about how the benefit system works and where and when to refer people for further support.
OCN Level 3 Certificate in Generalist Advice - online
This nationally accredited qualification is aimed at individuals who wish to develop skills in the area of generalist advice and will focus on applied learning, using case studies and active learning exercises.
OCN Level 4 Tribunal Representation - online
This course provides a detailed understanding of the Personal Independence Payment decision and appeals process, and includes top tips from the Law Centre NI legal and advice teams. Advisers will also have the opportunity to participate in mock tribunal hearings. Next cohort begins in April 2022 (date to be confirmed).
Introductory training on Benefits, Personal Independence Payment and Universal Credit - online
This series of courses is the ideal starting point for anyone working with clients impacted by the social security benefits system. It is also a useful introduction to benefits for non-benefits advisers.
For more information, see our Spring Summer 2022 Training Schedule or contact our training team at training@lawcentreni.org | 028 9024 4401.
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We always welcome your feedback. Please send comments about our Social Security Law and Practice Bulletin to margaret.carson@lawcentreni.org.
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