Dealing with delay in social
security cases
Martin Williams
September 2011
www.cpag.org.uk
What this talk is NOT about…
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Using contacts in local DWP/LA offices to resolve
complaints.
•
Using official internal complaint procedures at
DWP.
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Using the Ombudsman services.
•
Obtaining compensation for delay.
….all of those methods can and do resolve cases.
The focus here however is identifying LEGAL as
opposed to informal remedies
Decisions on new claims (1)
•
For DWP and HMRC administered benefits and
tax credits then-
•
No express duty in legislation concerning time limits. (sec
8 Social Security Act 1998 for benefits and sec 14 Tax
Credits Act 2002 for tax credits).
•
It is probable that the duty is implicitly to determine claims
within a “reasonable time”.
•
Published targets:
− IS – 9 days
− JSA – 11 days
− ESA – 14 days
Decisions on new claims (2)
What is a “reasonable time”?
•
Can depend on the volume of claims awaiting
determination and availability of decision makers: R v Sec
of State for Social Services & Chief Adjudication Officer
ex p CPAG [1990] 2 QB 540, CA
•
Arguable that what is reasonable will depend on the facts
of a particular case- eg why is it so much worse for this
poor person to have to wait than for another such person?
– R (S) v SSHD [2007] EWCA Civ 546 at para 51.
•
Failure to stick to published targets may provide further
ammunition.
Interim payments (1)
Reg 2(1)(b) Social Security (Payments on
Account etc) Regulations 1988 No. 664:
2-(1) Subject to paragraph (1A), the Secretary of State may, in his
discretion, the Board may in their discretion make an interim
payment, that is to say a payment on account of any benefit to
which it appears to him [them] that a person is or may be
entitled [….] in the following circumstances(a) […]
(b) a claim for the benefit has been so made, but it is
impracticable for it or an application or appeal which relates
to it to be determined immediately;
Note that para (1A) concerns appeal cases- see below
Interim payments (2)
Guidance to decision makers for DWP paid
benefits is as follows:
09325 Interim payments may be made where the Secretary of State
is of the opinion that there is entitlement to benefit (see DMG
09326) and
1. [….] or
2. there is a claim but it cannot be put to the DM immediately2 or
3. [….].
2 reg 2(1)(b);
09326 The test is not whether it is “clear” that the person is entitled
to the benefit concerned, it is whether it appears to the Secretary
of State that the person is or may be entitled1. That judgement has
to be made on the basis of the information available at the time
and in the light of whichever of the three conditions in DMG 09325
applies.
1 R v Secretary of State for Social Security Ex p. Sarwar Getachew and
Uranek (High Court April 11, 1995)
Delays where right to reside etc is
an issue (1)
•
It seems to be the case that a claim for a benefit to which
the right to reside test applies by a non-British EU national
takes longer to decide than a claim by a British national
that is in all other respects the same (see next slide).
•
This is arguably unlawful given the numerous antidiscrimination provisions in EU law- Art 18 TFEU, Art 24
Dir. 2004/38 etc.
•
Possible damages for breach? Francovich and Danila
Bonifaci and others v Italian Republic Cases C-6/90 and
C-9/90
•
At minimum adds an extra dimension to cases of delay
where EU law at issue.
Delays where right to reside etc an
issue (2)
•
Attempts to get statistics on added delay have so far
failed- DWP have informed CPAG they do not keep such
records:
− Question: “Whether there are any targets times for the processing
of claims by the EEA specialist decision makers (in Wick I think)? If
so what they are?”
− Answer: Answers provided through FOI request April 2010
“There are no set target times for the processing of claims by the
EEA specialist decision makers within Jobcentre Plus.”
•
However, at a later meeting we asked again:
− Question: “It appears that DWP take significantly longer to issue a
decision in a case which involves a right to reside issue as
compared to a similar case which involves no such issue. This
means that EU nationals wait for far longer to have their claims
determined than UK nationals.”
− Answer: “Wick are currently taking on average 6 working days
to make a decision”
Delays where right to reside etc an
issue (3)
•
The DWP have explained the apparent
discrepancy as follows:
− “Wick Benefit Delivery Centre (BDC), along with all
BDC’s across Jobcentre Plus , does keep an informal
track of the number of cases they have outstanding,
but this is not deemed as being statistically safe and
are therefore not published within public domain
under Cabinet Office rules on security and provision
of data.”
•
DWP minutes of meeting with CPAG and others on
08/09/2010.
Crisis Loans- shortcut solution?
•
•
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Crisis Loan applications are easy to make and should be
determined very quickly.
The Social Fund Inspector aims to make decisions within
24 hours.
Crisis Loan eligibility requires the claimant to:
− Not be a “person from abroad” – SF Direction 16(b)
− Have an ability to repay the loan- SF Direction 22
•
Thus it is often possible to get at the reason for the delay
in processing a claim or for refusal of benefit through a
crisis loan application
- for example where the claimant is appealing an IS decision
refusing on basis of no right to reside and applies for a crisis loan
then that issue arises again on that application.
•
Given how quickly crisis loan decisions are made and that
remedy against SFI is JR then this is a quick route to the
Admin Court.
Delay in processing HB claims (1)
•
Reg 89(2) Housing Benefit Regulations 2006 No.
214, provides:
(2) The relevant authority shall make a decision on each claim within
14 days of the provisions of regulations 83 and 86 being satisfied or as
soon as reasonably practicable thereafter
•
Regs 83 and 86 – relate to making a valid claim
and providing further evidence as requested.
Delays in processing HB claims (2)
•
Reg 93 provides:
93(1) Where it is impracticable for the relevant authority to make a decision on a
claim for a rent allowance within 14 days of the claim for it having been made
and that impracticability does not arise out of the failure of the claimant,
without good cause, to furnish such information, certificates, documents or
evidence as the authority reasonably requires and has requested or which has
been requested by the Secretary of State, the authority shall make a payment
on account of any entitlement to a rent allowance of such amount as it
considers reasonable having regard to(a) such information which may at the time be available to it concerning
the claimant’s circumstances…
•
That duty is mandatory and no further claim is needed- R
v Haringey LBC ex p Ayub [1990] 25 HLR 566 QBD
•
Applies only to rent allowance (eg private/HA tenancies
and not LA tenants).
SUMMARY OF DELAYS ON NEW
CLAIMS- POINTS TO REMEMBER
•
Make use of interim payments and payments on account.
•
Failure to consider or make such payments may be
actionable via Judicial Review
•
A letter before claim very often leads to a decision.
•
Delay where EU issues involved may give added
remedies.
•
Do use the “Financial redress for Injustice Resulting from
maladministration” procedures- but get a payment first.
− See CPAG Handbook 2010/2011 at page 1236 for the derisory
sums involved.
•
Consider crisis loan applications as a way to quickly
escalate an issue.
Delays in dealing with appeals
•
Consider three stages:
− Stage 1: Delay by Decision Maker in preparing the
response to the appeal by the claimant.
− Stage 2: Delay by Tribunal in listing the case.
− Stage 3: Delay in implementation of decision.
Stage 1: Delay in the response
•
Rule 24(1)(b) TP(FtT)(SEC) Rules 2008 No.
2685- response must be prepared and issued to
tribunal and parties “as soon as reasonably
practicable”- see above.
•
R(H)1/07- The Tribunal has jurisdiction even
before the response is submitted to it. In
appropriate cases it should accept this and direct
expedition.
•
The Tribunal should exercise its power in such
cases in a way consistent with the overriding
objective of the rules- Rule 2(3)(a).
The “overriding objective”- our friend
Rule 2 creates an overriding objective to deal with cases fairly and justly.
• QUESTION:
• HOW DOES THE OVERRIDING OBJECTIVE RELATE TO THE REST OF
THE RULES?
• ANSWER-:
• WHEN EXERCISING ANY POWER (ie giving a direction, striking out a case)
• OR
• INTERPRETING THE RULES
•
THE TRIBUNAL MUST HAVE REGARD TO THIS OBJECTIVE- Rule 2(3)(a)
and (b).
•
Which means we must always have regard to it as well- note we and the
Decision Maker have a duty to assist the tribunal in furthering the overriding
objective (Rule 2(4)(a)) and to co-operate generally (Rule 2(4)(b))- that
includes a duty to ensure we (and the other side) are ready at time of hearing
so far as possible- MA v SSWP [2009] UKUT 211 (AAC)
The overriding objective- content
Dealing with cases fairly and justly includes
(but is not limited to- MA v SSWP [2009] UKUT 211
(AAC)):
• Rule 2(2)(a): Deal with case in way which is proportionate
to:
−
−
−
−
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•
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the importance of the case;
complexity of the issues;
anticipated costs and
resources of the parties.
Rule 2(2)(b): Avoid unnecessary formality and seek
flexibility.
Rule 2(2)(c): Ensure so far as practicable parties are able
to participate.
Rule 2(2)(e): Avoid delay so far as compatible with proper
consideration.
Stage 2: Delay in listing the casethe problem
•
Time taken to dispose of an appeal from receipt
by the tribunal until decision ending proceedings
has risen from:
− under 10 weeks in April 2008 to
− nearly 24 weeks in April 2011).
Her Majesty’s Courts and Tribunals Service Social
Security and Child Support Statistics: 1 April 2011 to 31
May 2011 Statistical Notice, 15 July, 2011
Stage 2: Delay in listing the case –
remedies
•
Use the ability to apply for case management directions –
rule 6 TP(FtT)(SEC) Rules.
•
Note:
− Request for expedition should state reason for requesting
(remember other claimants also waiting long periods….).
− Use the language of the overriding objective.
•
Remedy if directions not given or case not expedited is JR
commencing in the Upper Tribunal.
•
However, given lack of emergency procedures, it is
difficult to see how they will deal with such applications
and it may be necessary to apply also for JR against the
body responsible for decision under appeal in the Admin
Court
Stage 3: Delay in implementing
tribunal decisions
•
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The responsibility here lies with the Decision Maker and
not the Tribunal.
Note the powers to suspend payment on further appeal to
the UT:
− HB/CTB- para 13 of Sch 7 CPSSA 2000 and Reg 11(2)(b)
HB&CTB(D&A) Regs 2001 No. 1002- although arguable there are
problems with drafting so no power to suspend when thinking
about appealing or waiting for statement.
− DWP paid benefits- Reg 16(3)(b)(i) SS&CS(D&A) Regs 1999 No.
991
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Does the Tribunal power to suspend the effect of its own
decision have any meaning? –see Rule 5(3)(l)
TP(FtT)(SEC) Rules 2008.
If the decision is an “outcome decision” and no power to
suspend exists then possible to sue for payment in the
County Court (Sheriff Court in Scotland?).
Refusal to implement decisions involving EU issues?
Interim payments pending appeal?
•
It will be recalled that interim payments under
Reg 2(1) of the Payments on Account
Regulations are “subject to paragraph (1A)”.
•
That provision is as follows:
(1A) Paragraph (1) shall not apply pending the
determination of an appeal.
Challenges to rule preventing interim
payments pending appeal (1)
EU LAW CASES
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Where a case involves an issue of EU law then
that may be unlawful given that there must be
some power to grant interim relief- Factortame
Ltd v SS for Transport (No.2) [1991] 1 A.C. 603.
•
A particularly strong argument where the answer
to the EU law point cannot be given by a national
Court due to a pending ECJ case (see eg cases
such as Punakova C-148/11).
•
See Welfare Rights Bulletin 222 (June 2011).
Challenges to the rule preventing
interim payment pending appeal (2)
•
Dixon, R (on the application of) v SSWP (case reference:
C1/2011/1936) – case pending at present.
•
Ms Dixon brings a much wider challenge to Reg 2(1A):
− Irrational provision- no reason right should disappear simply when
appeal submitted.
− Incompatible with right of access to a court under both the
common law and Article 6 (right to an independent tribunal) ECHR.
Specifically, the right of access to a court requires, in appropriate
cases, a right of access to interim measures capable of securing
for the time being the rights in dispute.
− Article 6 and 3 of the Convention require the Courts to have a
power to grant interim payments in any case where prolonged
delay in resolution of an appeal is such that Article 3 (right not to
be subject to inhuman or degrading treatment) may become
engaged.
Challenges to rule preventing interim
payments (3)
•
Ms Dixon’s case has had a funny trajectory in
that:
− She asked for interim relief pending her challenge to
rule preventing interim payments being made.
− The High Court refused to make them on the basis that
it could not do so until it determined the challenge.
− Ms Dixon sought permission to appeal to the Court of
Appeal against that refusal.
− Court of Appeal has granted interim relief pending that
appeal.
•
This means that claimants can in theory be
granted relief by the Court whilst Dixon proceeds.
Judicial Review
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At many points this talk suggests Judicial Review
as the remedy (whether that be on application to
the UT against the First-tier Tribunal, or to the
Court of Session against SSWP).
There are significant differences between the
procedural rules and JR as a remedy in Scotland
as compared to England and Wales.
Court of Session Act 1988 sec 45(b) allows the
Court of Session to order compliance with
statutory duty… petitions for this are brought via
the JR procedure outlined in Chapter 58 of the
Court of Session Rules.
Welfare Reform Bill 2011: the end of
delays?
•
Clause 98 of the current Welfare Reform Bill proposes
substituting the existing payment on account provision
with the following regulation making power:
“(r) for the making of a payment on account of such a benefit—
(i) in cases where it is impracticable for a claim to be made
or determined immediately, or for an award to be
determined or paid in full immediately,
(ii) in cases of need, or
(iii) in cases where the Secretary of State considers in
accordance with prescribed criteria that the payment can
reasonably be expected to be recovered;”.
Crisis Loans are to be abolished.
The waiting game…
Let’s not play nicely any more.
www.cpag.org.uk