Dealing with delay in social security cases

1. Dealing with delay in social security cases Martin Williams September 2011

2. What this talk is NOT about… • Using contacts in local DWP/LA offices to resolve complaints. • Using official internal complaint procedures at DWP. • 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

3. 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

4. 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.

5. 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

6. 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 immediately2or 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)

7. 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 anti-discrimination 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.

8. 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”

9. 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.

10. Crisis Loans- shortcut solution? • 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.

11. 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.

12. 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).

13. 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.

14. 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.

15. 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).

16. 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)

17. The overriding objective- content Dealing with cases fairly and justlyincludes(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: • 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.

18. Stage 2: Delay in listing the case- the 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

19. 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

20. Stage 3: Delay in implementing tribunal decisions • 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 • 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?

21. 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.

22. Challenges to rule preventing interim payments pending appeal (1) EU LAW CASES • 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).

23. 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.

24. 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.

25. Judicial Review • 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.

26. 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.

27. The waiting game… Let’s not play nicely any more.