Welcome to Law Centre NI's new quarterly Bulletin on Social Security Law and Practice in Northern Ireland.
What's inside...
In our first edition, we introduce our Social Security Hub and look at recent Case Law and Legislation, including Policy issues that are grabbing our attention at the moment. We also provide information on upcoming Training and Events at Law Centre NI over the next few months.
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Law Centre NI Social Security Hub
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At Law Centre NI’s Social Security Hub, we advise on the law relating to social security benefits and provide representation at Appeal Tribunals, the Social Security Commissioners and Higher Courts. We also engage in policy advocacy on key social security issues and deliver a training programme to support the work of social security advisers across Northern Ireland.
Our Welfare Reform Support Project (WRSP) has three dedicated welfare reform advisers: Bridget Corr, Rachael Jeffers and Ronnie Vellum. Through our Welfare Reform Advice Line, our team provides advice and support to the advice sector. They also provide representation at Social Security Appeals across Northern Ireland.
In addition, our Social Security Legal Officers, Michael Black and Owen McCloskey, provide advice on complex social security issues through our Social Security Law Advice Line. They also represent at appeals to the Social Security Commissioner and pursue test cases in the High Court, Court of Appeal and beyond. Two of those cases are reported in this edition Michael O’Donnell v. Department for Communities [2020] NICA 36 and In the matter of an application by Lorraine Cox for leave to apply for Judicial Review [2020] NIQB 53.
Policy advocacy is also an important part of our work. Our Social Security Policy Officer, Anna Hughes, works closely with the wider advice sector and engages in advocacy on key social security issues.
You can contact our Social Security Hub on:
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Case law in Northern Ireland
June to September 2020
Click on the links to access case summaries
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High Court
Terminal Illness: 'Six month rule' in breach of ECHR.
In the matter of an application by Lorraine Cox for leave to apply for Judicial Review [2020] NIQB 53
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Social Security Commissioner Decisions
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Personal Independence Payment
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Activity 9: Engaging with other people face to face
PD v. Department for Communities [2020] NI Com 53
TMcG v. Department for Communities [2020] NI Com 60
FK v. Department for Communities [2020] NI Com 59
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Activity 10: Making budgeting decisions
UB v. Department for Communities [2020] NI Com 55
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Activity 12: Moving around
RG v. Department for Communities [2020] NI Com 46
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Employment and Support Allowance
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Procedure at Appeal Tribunal
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Social Security Legislation
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Social Security Law and Practice Conference 2020
Law Centre NI’s Annual Social Security Law and Practice Conference 2020, which this year took place entirely online, was held from 21-23 October. Our three day programme of events focused on the theme of 'A Decade of Change', reflecting the impact on claimants of the last ten years of major reforms to the social security system. In her opening remarks, the Minister for Communities gave a firm commitment to extending the welfare reform mitigations and the keynote addresses, panel discussions and practitioner workshops looked at future challenges, including a post Covid-19 world and cross border challenges around Brexit. We are now looking back at the key issues which emerged from the Conference and will consider how Law Centre NI, in partnership with the wider advice sector, can take these forward in 2021. Watch out for more information in our next Bulletin.
The Cliff Edge Coalition
'Six month rule' on terminal illness
In response to the High Court's decision in the Lorraine Cox case, Law Centre NI met with the Minister for Communities, alongside Marie Curie, MND Association and Advice NI, to urge action to change the 'six month rule' on terminal illness. Following a positive response from the Minister, a roundtable discussion on changing the 'six month rule' in Northern Ireland was held in November 2020 with representatives from across the UK. Look out for an update in our next Bulletin.
Second Independent Review of PIP Assessment Process
Social Security Advisory Committee
In November 2020, the Social Security Advisory Committee published a review of the temporary measures put in place in the social security system during the Covid-19 pandemic. Law Centre NI met with members of the Committee during its investigation to ensure that the NI experience was reflected in the Committee's final report. You can read the report here.
Commission on Social Security
Last month, Law Centre NI hosted a workshop on behalf of the Commission on Social Security. The Commission on Social Security is a project set up to find out how to make the welfare benefits system better. The Commission is inviting responses to a survey on the social security system. You can access the survey here.
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Overpayments and Discretionary Waiver
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Law Centre NI has been investigating the recovery of overpayments of Universal Credit and Welfare Supplementary Payment.
Under the legacy benefit regime, overpayments could only be recovered where the Department showed that the Claimant caused the overpayment through a non-disclosure or misrepresentation.
However, with Universal Credit and Welfare Supplementary Payment, the Department simply needs to show that there has been an overpayment in order to recover from the Claimant. The overpayment is recoverable even if caused by official error.
Law Centre NI is concerned about the potential impact of this approach on claimants. In particular, we are concerned that permitting recovery in cases of official error may reduce the onus on the Department to ensure that its calculations are correct first time.
Claimants have the option of requesting a Discretionary Waiver in response to the Department’s request for repayment of an overpayment. In October 2019, we published a Legal Information Briefing on social security overpayments and discretionary waiver. Our Briefing provides practical guidance for claimants, including an example of a Discretionary Waiver request letter.
We are concerned that the option of Discretionary Waiver is not widely known by advisers or claimants. Our Policy team is actively pursuing this with the Department for Communities to explore ways of informing claimants about Discretionary Waiver.
Law Centre NI would like to hear from you if you are aware of a case in which the Department has refused a request for Discretionary Waiver, especially if the overpayment was caused by official error. You can contact our Social Security Law Advice Line on (028) 9024 4401.
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Appeal Tribunals and Covid-19
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Social Security Appeal Tribunals were suspended between March and July 2020 due to the pandemic. Although face to face appeal tribunals recommenced in September 2020, there remains a large backlog of cases.
The BBC reported in November 2020 that there were 4,104 appeals waiting to be heard. In reply to a question at the NI Assembly, the Minister for Communities stated that there are 'anything from 5,500 to 6,000' PIP appeals outstanding as of 23 November 2020.
Our WRSP team continues to represent claimants at appeal where possible. However, our representatives have experienced some difficulties with the operation of changes introduced by the Appeals Service post Covid-19. We are learning through our Law Centre's Network that advisers and claimants are experiencing similar difficulties throughout the UK.
While we acknowledge the exceptional circumstances in which we all find ourselves, it is important that the Article 6 (fair hearing) rights of social security claimants continue to be protected at appeal hearings. Law Centre NI will therefore continue to monitor how social security appeals operate over the coming months.
We would like to hear from you if you have experienced difficulties with the recent changes made post Covid-19. If you or your client have been adversely affected by the changes, please contact our Social Security Law Advice Line (028) 9024 4401.
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Legal Information Resources for Advisers
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Law Centre NI, supported by the Department of Communities, is developing an online legal information resource for social security advisers in Northern Ireland. Our online resource will provide front line advisers with accurate and up to date guidance on law and practice in Northern Ireland. Over the next few months, we will be consulting with managers and advisers to hear their views and experiences of legal information resources and to find out what they would like to see in our new online resource.
If you would like to help shape the development of our online resource or you just want to hear more about the project, please contact our Legal Information Resource Officer, Margaret Carson, on margaret.carson@lawcentreni.org.
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Our OCN NI Level 3 Certificate in Generalist Advice qualification will equip learners to effectively provide advice to the public. Our most popular training is now being delivered online, meeting your learning needs with all the flexibility of supported online learning.
Online | Cohort begins on 25 Jan 2021
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Guaranteed to improve your representation skills, this advanced learning will help advisers get the best possible outcome for their clients at Tribunal.
Online | Cohort begins on 08 Feb 2021
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Did you know...
Law Centre NI can provide in house, bespoke training, tailored to meet the needs of your staff. This ranges from in house seminars to qualifications on social security, employment and immigration issues.
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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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