UC - Johnson appeal - Secretary of State’s Written Response - Section 5 The Decision Maker’s Opinion

Not sure what response you are after?  I would make the following points:

1. This is not a Johnson “look-alike” case.  The 13 x 4w payments issue in this case is different from the wandering monthly salary date issue in Johnson.  On the face of it the decision is correct and Johnson is irrelevant.

2. Apart from the inconvenience of having to reclaim and the disruption to budgeting, this claimant gains by comparison with someone who receives the same annual salary in 12 pcm instalments because some of her earnings has avoided tapering in the nil UC month.  She will always have at least 4w earnings in every month, so the work allowance is not “wasted” in any month as it can be in a Johnson-type case.

I would concede this one, unless there is something I’m missing?

HB Anorak - 04 November 2020 01:05 PM

Not sure what response you are after?  I would make the following points:

1. This is not a Johnson “look-alike” case.  The 13 x 4w payments issue in this case is different from the wandering monthly salary date issue in Johnson.  On the face of it the decision is correct and Johnson is irrelevant.

2. Apart from the inconvenience of having to reclaim and the disruption to budgeting, this claimant gains by comparison with someone who receives the same annual salary in 12 pcm instalments because some of her earnings has avoided tapering in the nil UC month.  She will always have at least 4w earnings in every month, so the work allowance is not “wasted” in any month as it can be in a Johnson-type case.

I would concede this one, unless there is something I’m missing?

Thanks HB!

1.  I posted it for topical interest.

2. Regarding the 13 x 4 weekly payment. The employer actually changed our client’s payment cycle concerning the reclaim to avoid the 13 x 4 weekly ‘disruption to budgeting’ and reclaims’. The closed claim was for a period of 6 AP’s.

So we are trying to salvage that one assessment’s period worth of UC including the housing element.

Andyp5 Citizens Advice Bridport & District - 05 November 2020 10:58 AM

HB Anorak - 04 November 2020 01:05 PM

Not sure what response you are after?  I would make the following points:

1. This is not a Johnson “look-alike” case.  The 13 x 4w payments issue in this case is different from the wandering monthly salary date issue in Johnson.  On the face of it the decision is correct and Johnson is irrelevant.

2. Apart from the inconvenience of having to reclaim and the disruption to budgeting, this claimant gains by comparison with someone who receives the same annual salary in 12 pcm instalments because some of her earnings has avoided tapering in the nil UC month.  She will always have at least 4w earnings in every month, so the work allowance is not “wasted” in any month as it can be in a Johnson-type case.

I would concede this one, unless there is something I’m missing?

Thanks HB!

1.  I posted it for topical interest.

2. Regarding the 13 x 4 weekly payment. The employer actually changed our client’s payment cycle concerning the reclaim to avoid the 13 x 4 weekly ‘disruption to budgeting’ and reclaims’. The closed claim was for a period of 6 AP’s.

So we are trying to salvage that one assessment’s period worth of UC including the housing element.

Would i be right in presupposing/presuming we not going to able to salvage the one assessment period of UC???

I agree with Peter and the decision maker that the Regs were correctly applied in your client’s case and that the Johnson Court of Appeal decision is inapplicable to your client both because of the different factual situation and because she does not suffer the central mischief which resulted in the outcome in Johnson - i.e. the arbitrary loss of the work allowance from time to time. The remedy for her was to reclaim UC immediately and get her entitlement back the following month with nothing lost. If she failed to do that, then all you could really do would be to pursue a complaint if she was in some respect misadvised and lost out as a result.

However if you did want to pursue it, the only real argument you could run would be one I believe put forward by CPAG which is, in general summary:

(a) The regs require the SSWP to calculate earnings each month in accordance with reg 54.
(b) Reg 54 has been found to be irrational and consequently unlawful in certain respects.
(c) It is a requirement under A1P1 ECHR that people are not deprived of their possessions otherwise than in accordance with law
(d) Deductions from benefit under reg 54 are not in accordance with law because the regulation itself is unlawful and there is no way to read the regulation in your clients case in a way which is lawful
(e) Consequently no deduction can be made in your client’s case without breaching A1P1
(f) As neither the DWP nor the Tribunal can act in a way which is non-compliant with ECHR/HRA, the Regulation must be disapplied (see RR etc.)
(g) Your client’s entitlement must then be calculated without regard to her income at all in this AP

Elliot Kent - 11 November 2020 04:19 PM

I agree with Peter and the decision maker that the Regs were correctly applied in your client’s case and that the Johnson Court of Appeal decision is inapplicable to your client both because of the different factual situation and because she does not suffer the central mischief which resulted in the outcome in Johnson - i.e. the arbitrary loss of the work allowance from time to time. The remedy for her was to reclaim UC immediately and get her entitlement back the following month with nothing lost. If she failed to do that, then all you could really do would be to pursue a complaint if she was in some respect misadvised and lost out as a result.

However if you did want to pursue it, the only real argument you could run would be one I believe put forward by CPAG which is, in general summary:

(a) The regs require the SSWP to calculate earnings each month in accordance with reg 54.
(b) Reg 54 has been found to be irrational and consequently unlawful in certain respects.
(c) It is a requirement under A1P1 ECHR that people are not deprived of their possessions otherwise than in accordance with law
(d) Deductions from benefit under reg 54 are not in accordance with law because the regulation itself is unlawful and there is no way to read the regulation in your clients case in a way which is lawful
(e) Consequently no deduction can be made in your client’s case without breaching A1P1
(f) As neither the DWP nor the Tribunal can act in a way which is non-compliant with ECHR/HRA, the Regulation must be disapplied (see RR etc.)
(g) Your client’s entitlement must then be calculated without regard to her income at all in this AP

Thanks Elliot, client did reclaim but her employer changed her payday to avoid the 4 week scenario, as mentioned above. Wasn’t demuring from Peter’s advice. Just trying to find a way to get back monies for the that one assessment period i.e. the two thirteenths etc.