Social Security Case Law - Summer 2024

Headnote

A Tribunal can disapply subordinate legislation which breaches claimants Human Rights.

Background

The claimant formerly in receipt of Disability Living Allowance made an application for Personal Independence Payment in February 2018 after her previous claim was terminated under Article 95 of the Welfare Reform (NI) Order in 2015. The Department later decided that the application did not satisfy the criteria, the decision was upheld after a Mandatory Reconsideration, and the Appeal disallowed by a Tribunal.

The claimant continued the appeal to the Office of Social Security Commissioners and Child Support Commissioners with the help of Law Centre NI who argued that the Tribunal had erred in law by not providing sufficient reasons for their decision, failing to address the claimant’s difficulty in following familiar routes, providing insufficient reasoning in regards the claimant’s experience of psychological distress when following a route, and failing to make clear its findings in regards the claimant being accompanied during a journey.

While the Department accepted that they had erred in law, there was a disagreement about which legislation a newly formed Tribunal should have to address in relation to the mobility component.

Legal Issue

The case looks at whether a High Court decision in Great Britain that finds legislation should be disapplied because it breaches Convention rights would bind a Tribunal in Northern Ireland considering identical Northern Ireland Legislation.

Relevant Legislation

• Article 82 of the Welfare Reform (NI) Order 2015
• Regulation 2(4) of the Personal Independence Payment (Amendment) Regulations (NI) 2017
• Schedule 1, Part 3, Personal Independence Payment Regulations Northern Ireland 2016
• Regulations 2 and 3 of the Personal Independence Payment (Amendment) Regulations (NI) 2018
• Section 6(1) – (3) of the Human Rights Act 1998
• Section 3(1) and (2) of the Human Rights Act 1998

Relevant Case Law

• RF and others v Secretary of State for Work and Pensions [2017] EWHC 3375

The High Court declared that the amendments to PIP mobility activity 1 were ultra vires and unlawful due to discrimination and a failure to consult.

• AA v SSWP [2018] UKUT 339

Emphasised the need to address psychological distress when following the route of a journey.

• RR v SSWP [2019] UKSC 52

Where it is possible to do so, a provision of subordinate legislation which results in a breach of Convention rights must be disregarded.

• RR and O’Donnell v Department for Communities [2020] NICA 36

A  Tribunal must disapply a provision of subordinate legislation which would result in a breach of a convention right, in order to comply with section 6 of the Human rights Act 1998.

• Re Staritt’s Application [2005] NICA 48

Confirmed that courts in Northern Ireland are not technically bound by decisions in the rest of the United Kingdom, but it is customary for courts to follow them to make uniformity where the same statutory provision, rule or common law is to be applied.

• MH v Secretary for Work and Pensions [2016] UKUT 531 (AAC)

The Upper Tribunal held that mobility descriptors 1(c), (d) and (f) could be satisfied by claimants by virtue of “overwhelming psychological distress’.

Decision

It was held that a public body, including the Department, Tribunals, and a Commissioner – does not have the power to declare regulations invalid. However, in paragraph [64] it was confirmed that they do have obligations to disapply provisions which are in contravention with provisions of the Human Rights Act.

It was decided that the Tribunal had erred in law and sent back to a newly constituted Tribunal.