by GMLC Volunteer Robert Povall.
Child Poverty Action Group (CPAG) has taken legal action against the Government to defeat a statutory defence which could have left 70,000 underpaid disabled claimants £150m out of pocket. (1)
In 2011, the coalition government started migrating claimants in receipt of Incapacity Benefit (IB) to Employment and Support Allowance (ESA) in an effort to streamline the service. (2)
ESA is a benefit which aims to provide financial assistance for individuals who have an illness, health condition or disability that makes it ‘difficult or impossible to work.’ (3)
However, an error on the part of the Department for Work and Pensions (DWP) meant that many of those moved onto ‘contributory ESA’ were not assessed for the means-tested ‘income-related ESA.’ This led to a large number deprived of additional support in the form of enhanced and severe disability premiums.
CPAG undertook judicial review proceedings on behalf of a claimant who was underpaid from 2012. Judicial review is a means of legally challenging a public body’s exercise of power and is a powerful tool of the people to enforce their rights. The Government accepts that the claimant, as well as 70,000 others, may have been underpaid from as early as 2011.
However, the DWP sought to argue that, following an Upper Tribunal decision in 2014, it could only pay arrears from that time onwards in accordance with section 27 of the Social Security Act 1998. (4) If this were to be the case, the National Audit Office estimated that this would have resulted in disabled claimants losing out on between ‘£100 and £150million.’ (5)
Unsatisfied and unconvinced by this line of approach, CPAG argued that the DWP was aware of the error long before the Upper Tribunal decision, constituting an ‘official error’ which could be corrected in full right back to the date of the mistake for each individual claimant.
The DWP has given assurance that a full investigation will take place and that those who suffered as a result of this error will be compensated.
This is one example of a fight that should not have been fought in the first place. However an avoidable error by the Government may here be rectified, which is a victory for those fighting for the justice.
Because of the efforts of CPAG, many underpaid claimants may finally get back what they were entitled to all along. That said, it is deeply concerning to see how far the Government will go and what statutory cards it is willing to play in order to keep money in the coffers and out of the pockets of those who need it. Thankfully there are lawyers and organisations out there that share Greater Manchester Law Centre’s determination to hold our authorities to account.
Robert is a Campaign Volunteer with GMLC and is currently studying a BPTC at the University of Law. He wants to dedicate his career to improving the lives of the underprivileged. Robert is an aspiring barrister hoping to specialise in immigration, civil liberties and human rights.