HK v Department for Communities (UC) [2024] NICom15
You can read the full judgment ‘here‘.
Headnote
A tribunal must provide adequate reasons for its decisions not to address particular arguments in an appellant’s case with a particular focus on the enhanced disability premium under the transitional element of Universal Credit migration.
Background
The appellant (a deaf claimant) made a claim for Universal Credit in September 2018 and lost the severe disability premium she had received in her legacy benefit. After legislation came into effect in July 2019, the appellant was awarded transitional top-up payments and arrears from the beginning of the claim. However, the appellant challenged the decision, submitting that she was still worse off as a result of moving to Universal Credit and asked to be moved back to her legacy benefits. The appellant did not attend the appeal hearing due to issues raised around the competency of the sign language interpreter, however, their representative was present. The decision of the Department was upheld, and the appellant’s award of Universal Credit remained unchanged despite arguments that the appellant’s human rights had been breached. The appellant was represented by Law Centre NI.
Legal Issue
The Commissioner considered whether the hearing was fair for a number of reasons, including whether the record of proceedings was materially correct; whether a third party impacted the tribunal proceedings; the tribunal failed to address the impact of the appellants concerns about the interpreter’s competence and their impact on a fair hearing; whether the tribunal properly considered an adjournment request; the tribunal misapplied the law relating to the rules around withdrawing a claim for Universal Credit; the tribunal gave inadequate reasons for its decision; and that the tribunal reached conclusions not supported by evidence in their determination of the case facts. The tribunal also did not adequately consider and address the appellant’s argument that her human rights had been breached in the failure to provide her transitional protection for the full loss of legacy benefit.
Relevant Legislation
- Universal Credit (Transitional Provisions) Regulations (Northern Ireland) 2016
- Schedule 2 to the Universal Credit (Transitional Provisions) Regulations 2014
- Regulation 55 of SI 2014 No. 1230
- Article 6 and 39, The Welfare Reform (Northern Ireland) Order 2015
- Disability Discrimination Act 1995
- Regulation 51, The Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999
- Section 6(1) of the Human Rights Act 1998
- Universal Credit (Managed Migration and Miscellaneous Amendments) Regulations (NI) 2019 (the MMMA Regulations
Relevant Case Law
- TP & AR (No.3) v Secretary of State for Work and Pensions [2022] EWHC 123
- FL v Secretary of State for Work and Pensions [2024] UKUT 6
- Chief Adjudication Officer v Foster [1993] 1 All ER 705
- R(IS) 12/04
- R (TD & Ors) v Secretary of State for Work and Pensions [2020] EWCA Civ 218
- Kerr v Department for Social Development (NI) [2004] UKHL 23
- DJS v Department for Communities (PIP) [2021] NICom 22
- CDLA/2748/2002
- TS (Eritrea) v Secretary of State for the Home Department [2019] UKUT 352 (IAC)
- Perera v Secretary of State for the Home Department [2004] EWCA Civ 2002
- Kamasinski v Austria [1991] 13 EHRR 36
- R v Lee Kun [1916] 1 KB 227
- R(I)11/63
- TF v NI Public Services Ombudsman [2022] NICA 17
- CDLA/2748/2002
- R(DLA) 3/08
- C48/99-00(DLA)
- DJS v DFC (PIP) [2021] NI Com 22
Decision
Both the appellant’s representative and the Department agreed that the tribunal did not give adequate reasons for its decision. They agreed that the tribunal did not provide an adequate statement of reasons in relation to how they investigated and addressed the amount of transitional protection that should have been awarded to the appellant, including any disability related premiums and elements. The Commissioner also agreed that the tribunal had not produced an adequate statement of reasons in this case. The Commissioner noted that an inadequate statement of reasons amounts to an error of law and on this basis, set aside the decision and directed it to a newly constituted tribunal. The Commissioner also made comments that there were issues surrounding the BSL interpreter and that the tribunal did not engage with some of the principal issues raised by the appellant in regards to the enhanced disability premium. The Commissioner noted in particular that the tribunal should consider the claimant’s potential entitlement to enhanced disability premium in light of TP & AR (No.3) v Secretary of State for Work and Pensions [2024] UKUT 6.