TS (by TS) v Secretary of State for Work and Pensions (DLA); EK (by MK) v Secretary of State for Work and Pensions (DLA)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Ward |
| Neutral Citation | [2020] UKUT 284 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | DLA,AA,MA: general,Equality Act,Human rights law,MA: general - other,Human rights law - article 14 (non-discrimination),Ward,C |
| Date | 12 October 2020 |
| Published date | 30 November 2020 |
TS (by TS) v SSWP (DLA); EK (by MK) v SSWP (DLA) [2020] UKUT 284 (AAC)
1
IN THE UPPER TRIBUNAL Case Nos. CDLA/2208/2018
ADMINISTRATIVE APPEALS CHAMBER CDLA/2019/2018
Before UPPER TRIBUNAL JUDGE WARD
Attendances:
For the Appellants: Mr Tim Buley QC, instructed by Ms Carla Clarke,
Solicitor, Child Poverty Action Group
For the Respondent: Ms Julia Smyth, instructed by Government Legal
Service
Decision: The appeals are allowed to the following extent. The decisions of
the First-tier Tribunal sitting at Norwich on 29 August 2018 under reference
SC142/17/00733 and Stockport North on 7 June 2018 under reference
SC944/17/02173 involved the making of an error of law and are set aside.
Acting under section 12(2)(b) of the Tribunals, Courts and Enforcement Act
2007, I remake the decisions as follows:
The appeals of TS and EK are allowed.
The extension of the requirement to have been present in Great Britain
from 26 weeks out of 52 to 104 weeks out of 156 was a breach of their
rights under Art.14 of the European Convention on Human Rights, read
with Article 1 of Protocol 1, applied in accordance with the Human
Rights Act 1998.
For the purposes of his claim for DLA made on 16 December 2016, TS
completed a sufficient period of presence in Great Britain on 6 June
2017.
For the purpose of her claim for DLA made on 19 July 2017, EK
completed a sufficient period of presence in Great Britain on 2
December 2017.
Neither the First-tier Tribunal nor the Upper Tribunal (when considering
a statutory appeal in a social security case) has jurisdiction to rule on
whether there has been a breach of the public sector equality duty in
section 149 of the Equality Act 2010.
If (contrary to the above) the Upper Tribunal does have such
jurisdiction, there was a breach of the duty in this case.
TS (by TS) v SSWP (DLA); EK (by MK) v SSWP (DLA) [2020] UKUT 284 (AAC)
2
REASONS FOR DECISION
The issue
1. The appellants are both British citizen children with severe disabilities who
lived abroad (in New Zealand and Australia) before returning to the UK. They
bring these proceedings through their mothers as their appointees. They
seek to challenge on the grounds summarised in [3] the current Past
Presence Test (“the new PPT”) which is to be found in reg 2(1)(a)(iii) of the
Social Security (Disability Living Allowance) Regulations 1991/2890 (“the DLA
Regulations)”, as modified by reg.4(3)(c) of the Social Security (Attendance
Allowance, Disability Living Allowance and Carer’s Allowance) (Amendment)
Regulations 2013/389 (“the Amendment Regulations”). The effect of the new
PPT, which applies to persons such as the appellants who cannot rely on any
rights under EU law, is to require, as a condition of entitlement to disability
living allowance (“DLA”), that they have been present in Great Britain for 104
weeks out of the previous 156 weeks (i.e. 2 years out of 3). Before the
Amendment Regulations, the Past Presence Test (“the old PPT”) required
presence in Great Britain for 26 weeks out of the previous 52. Other
conditions of entitlement under the DLA Regulations prior to the coming into
force of the Amendment Regulations already included that the claimant be
ordinarily resident in Great Britain and not be “a person subject to immigration
control” (as defined)
1
.
2. To clothe the legal arguments with some figures, in 2016/17 (when TS’s
claim was made) the highest rate of the care component of DLA was worth
£82.30 weekly, while the higher rate of the mobility component was worth
£57.45. Further, a lack of entitlement to DLA (whether by reason of inability to
meet the PPT or otherwise) may have knock-on effects. Receipt of DLA is a
condition of entitlement to certain other benefits for the family, among them
carer’s allowance (“CA”) (£62.10 weekly), the disabled child element of child
tax credit (£3,140 annually) and (if the child receives the highest rate of the
care component of DLA), the severely disabled child element (a further
£1,275 annually). Similar provisions now exist within universal credit.
3. The appellants claim that the new PPT is unlawful on the grounds that:
a. it is in breach of the Public Sector Equality Duty (“PSED”) created by
s.149 of the Equality Act 2010 (“the 2010 Act”); and/or
b. it is in breach of Article 14 of the European Convention on Human
Rights, read together with Article 1, Protocol 1;
and that accordingly the new PPT should not be applied as drafted, although
the precise consequence is said to vary according to whether the breach
found is a. or b.
1
They were then amended to require habitual residence (rather than ordinary residence) in
the Common Travel Area.
TS (by TS) v SSWP (DLA); EK (by MK) v SSWP (DLA) [2020] UKUT 284 (AAC)
3
4. In order to make a. good, the appellants need to establish that the Upper
Tribunal has jurisdiction on a statutory appeal to rule on whether there has
been a breach of the PSED. The respondent disputes that it has such
jurisdiction. As the evidence is detailed and the same for the human rights
and PSED claims and because it appears likely that the case may go higher, I
address the substance of the PSED claim even though, as will be seen, my
conclusion is that the Upper Tribunal has no jurisdiction in that regard.
5. The structure of this decision is as follows:
The issue [1] – [5]
The individual cases [6] – [7]
Existing authority and precedent in the Administrative Appeals
Chamber [8] – [11]
The Public Sector Equality Duty [12] – [15]
Jurisdiction to consider breaches of the Public Sector Equality Duty
Foster, Howker and associated cases [16] – [21]
Equality Act 2010- structure; s.113 [22] – [24]
Existing authorities summarised [25] – [38]
Existing authorities – status and effect [39] – [48]
The possession cases [49]
The treatment of immigration cases under s.113[50] – [62]
Conclusion on jurisdiction [63] – [77]
The process leading to the new PPT [78] – [105]
Compliance with the PSED [106].– [129]
Human rights
The claim [130]
Status [131] – [132]
Analogous position [133] – [134]
Legitimate aim [135] – [142]
Manifestly without reasonable foundation [143] – [158]
Remedy
PSED [159] – [169]
Human rights [170] –[184]
Implications of the Social Security (Claims and Payments)
Regulations 1987 [185] – [196]
Concluding remarks [197]
The individual cases
6. The appellant in CDLA/2208/2018, TS, is a boy born in 2008. He was
refused DLA by a decision dated 13 March 2017. Child Poverty Action Group
acted for him in the First-tier Tribunal (“FtT”) proceedings, submitting that the
Upper Tribunal’s decision in FM v SSWP (DLA) [2017] UKUT 380 (AAC);
[2018] PTSR 1036; [2019] AACR 8 (discussed below) was wrongly decided.
No submission appears to have been made about the PSED. The FtT
dismissed the appeal on the primary ground that the Court of Appeal’s
decision in SSWP v Carmichael and Another [2018] EWCA Civ 548 would
preclude the FtT from disapplying the DLA Regulations as amended. It
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