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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Johnson & Ors, R (On the Application Of) v Secretary of State for Work And Pensions [2019] EWHC 23 (Admin) (11 January 2019) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2019/23.html Cite as: [2019] EWHC 23 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
AND
THE HONOURABLE MR JUSTICE LEWIS
____________________
R (on the application of (1) DANIELLE JOHNSON (2) CLAIRE WOODS (3) ERIN BARRETT (4) KATIE STEWART) |
Claimants |
|
- and – |
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SECRETARY OF STATE FOR WORK AND PENSIONS |
Defendant |
____________________
Jenni Richards QC and Stephen Broach (instructed by the Child Poverty Action Group) for the Second-Fourth Claimants
Edward Brown (instructed by Government Legal Department) for the Defendant
Hearing dates: 27 and 28 November 2018
____________________
Crown Copyright ©
LORD JUSTICE SINGH AND MR JUSTICE LEWIS:
INTRODUCTION
THE FACTS
Danielle Johnson
"I cannot make a change to the original decision. It is correct that you were paid twice within this Assessment Period (AP) therefore Universal Credit Regulations, regulation 61(2)(a) applies. The information from the employer was accurate and timely; and as such cannot be disregarded.
As such this is stated in Law and cannot be changed therefore the decision remains upheld".
Claire Woods
Erin Barrett
Katie Stewart
Additional Difficulties for the Claimants
The Proceedings
THE LEGAL FRAMEWORK
The 2012 Act
"(1) A benefit known as universal credit is payable in accordance with this Part.
(2) Universal credit may, subject as follows, be awarded to—
(a) an individual who is not a member of a couple (a "single person"), or
(b) members of a couple jointly.
(3) An award of universal credit is, subject as follows, calculated by reference
to—
(a) a standard allowance,
(b) an amount for responsibility for children or young persons,
(c) an amount for housing, and
(d) amounts for other particular needs or circumstances."
"(1) A single claimant is entitled to universal credit if the claimant meets—
(a) the basic conditions, and
(b) the financial conditions for a single claimant."
"(1) Universal credit is payable in respect of each complete assessment period within a period of entitlement.
(2) In this Part an "assessment period" is a period of a prescribed duration.
(3) Regulations may make provision—
(a) about when an assessment period is to start;
(b) for universal credit to be payable in respect of a period shorter than an assessment period;
(c) about the amount payable in respect of a period shorter than an assessment period.
(4) In subsection (1) "period of entitlement" means a period during which entitlement to universal credit subsists."
"(1) The amount of an award of universal credit is to be the balance of—
(a) the maximum amount (see subsection (2)), less
(b) the amounts to be deducted (see subsection (3)).
(2) The maximum amount is the total of—
(a) any amount included under section 9 (standard allowance),
(b) any amount included under section 10 (responsibility for children and young persons),
(c) any amount included under section 11 (housing costs), and
(d) any amount included under section 12 (other particular needs or circumstances).
(3) The amounts to be deducted are—
(a) an amount in respect of earned income calculated in the prescribed manner (which may include multiplying some or all earned income by a prescribed percentage), and
(b) an amount in respect of unearned income calculated in the prescribed manner (which may include multiplying some or all unearned income by a prescribed percentage).
(4) In subsection (3)(a) and (b) the references to income are—
(a) in the case of a single claimant, to income of the claimant, and
(b) in the case of joint claimants, to combined income of the claimants."
The 2013 Regulations
"contains provisions for the purposes of section 7 and 8 of the Act about assessment periods and about the calculation of an amount of an award of universal credit".
Assessment Periods
"(1) An assessment period is a period of one month beginning with the first date of entitlement and each subsequent period of one month during which entitlement subsists.
(2) Each assessment period begins on the same day of each month except as follows—
(a) if the first date of entitlement falls on the 31st day of a month, each assessment period begins on the last day of the month; and
(b) if the first date of entitlement falls on the 29th or 30th day of a month, each assessment period begins on the 29th or 30th day of the month (as above) except in February when it begins on the 27th day or, in a leap year, the 28th day."
Calculation of the Amount of An Award
"22.— Deduction of income and work allowance
(1) The amounts to be deducted from the maximum amount in accordance with section 8(3) of the Act to determine the amount of an award of universal credit are—
(a) all of the claimant's unearned income (or in the case of joint claimants all of their combined unearned income) in respect of the assessment period; and
(b) the following amount of the claimant's earned income (or, in the case of joint claimants, their combined earned income) in respect of the assessment period—
(i) in a case where no work allowance is specified in the table below (that is where a single claimant does not have, or neither of joint claimants has, responsibility for a child or qualifying young person or limited capability for work), 63% of that earned income; or
(ii) in any other case, 63% of the amount by which that earned income exceeds the work allowance specified in the table.
(2) The amount of the work allowance is—
(a) if the award contains no amount for the housing costs element, the applicable amount of the higher work allowance specified in the table below; and
(b) if the award does contain an amount for the housing costs element, the applicable amount of the lower work allowance specified in that table.
(3) In the case of an award where the claimant is a member of a couple, but makes a claim as a single person, the amount to be deducted from the maximum amount in accordance with section 8(3) of the Act is the same as the amount that would be deducted in accordance with paragraph (1) if the couple were joint claimants.
Higher work allowance | ||
Single claimant- | ||
responsible for one or more children or qualifying young persons and/or has limited capability for work | £397 | |
Joint claimants | ||
responsible for one or more children or qualifying young persons and/or where one or both have limited capability for work | £397 | |
Lower work allowance | ||
Single claimant- | ||
responsible for one or more children or qualifying young persons and/or has limited capability for work | £192 | |
Joint claimants- | ||
responsible for one or more children or qualifying young persons and/or where one or both have limited capability for work | £192 |
"for the calculation or estimation of a person's earned income for the purposes of section 8 of the Act (calculation of awards)."
"(1) The calculation of a person's earned income in respect of an assessment period is, unless otherwise provided in this Chapter, to be based on the actual amounts received in that period.
(2) Where the Secretary of State—
(a) makes a determination as to whether the financial conditions in section 5 of the Act are met before the expiry of the first assessment period in relation to a claim for universal credit; or
(b) makes a determination as to the amount of a person's earned income in relation to an assessment period where a person has failed to report information in relation to that earned income,
that determination may be based on an estimate of the amounts received or expected to be received in that assessment period."
"(1) Unless paragraph (2) applies, a person must provide such information for the purposes of calculating their earned income at such times as the Secretary of State may require.
(2) Where a person is, or has been, engaged in an employment in respect of which their employer is a Real Time Information employer—
(a) the amount of the person's employed earnings from that employment for each assessment period is to be based on the information which is reported to HMRC under the PAYE Regulations and is received by the Secretary of State from HMRC in that assessment period ; and
(b) for an assessment period in which no information is received from HMRC, the amount of employed earnings in relation to that employment is to be taken to be nil.
(3) The Secretary of State may determine that paragraph (2) does not apply—
(a) in respect of a particular employment, where the Secretary of State considers that the information from the employer is unlikely to be sufficiently accurate or timely; or
(b) in respect of a particular assessment period where—
(i) no information is received from HMRC and the Secretary of State considers that this is likely to be because of a failure to report information (which includes the failure of a computer system operated by HMRC, the employer or any other person); or
(ii) the Secretary of State considers that the information received from HMRC is incorrect, or fails to reflect the definition of employed earnings in regulation 55, in some material respect.
(4) Where the Secretary of State determines that paragraph (2) does not apply, the Secretary of State must make a decision as to the amount of the person's employed earnings for the assessment period in accordance with regulation 55 (employed earnings) using such information or evidence as the Secretary of State thinks fit.
(5) When the Secretary of State makes a decision in accordance with paragraph (4) the Secretary of State may—
(a) treat a payment of employed earnings received by the person in one assessment period as received in a later assessment period (for example where the Secretary of State has received the information in that later period or would, if paragraph (2) applied, have expected to receive information about that payment from HMRC in that later period); or
(b) where a payment of employed earnings has been taken into account in that decision, disregard information about the same payment which is received from HMRC.
(6) Paragraph (5) also applies where the Secretary of State makes a decision under regulation 41(3) of the Universal Credit, Personal Independence Payment, Jobseeker's Allowance and Employment and Suport Allowance (Decisions and Appeals) Regulations 2103 in a case where the person disputes the information provided by HMRC.
(7) In this regulation "Real Time Information Employer" has the meaning in regulation 2A(1) of the PAYE Regulations."
THE SUBMISSIONS AND ISSUES
THE PROPER INTERPRETATION OF THE RELEVANT REGULATIONS
The Wider Context
The Specific Context
The Words of Regulation 54
"(1) The calculation of a person's earned income in respect of an assessment period is, unless otherwise provided in this Chapter, to be based on the actual amounts received in that period".
Specific Arguments Advanced by the Defendant
Conclusion
THE PUBLIC SECTOR EQUALITY DUTY
"(1) A public authority must, in the exercise of its functions, have due regard to the need to—
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
…..
"(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
…..
"(7) The relevant protected characteristics are—
…..
sex;
….."
CONCLUSION