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UC MRN post Court of Appeal’s judgment in Secretary of State for Work And Pensions v Johnson & Ors [2020] EWCA Civ 778 post Quince

Andyp5 Citizens Advice Bridport & District
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Post Johnson post Quince MR decision letter…........................attached

Benny Fitzpatrick
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Do you think the DWP are assuming that the claimant hasn’t heard of Johnson & Ors and Quince, and are just “winging it”?

OR is it the decision maker who hasn’t yet become aware of Johnson, Ors and Quince?

Or is the assumption that the decision under challenge pre-dates the High Court Judgement and is therefore not included within it’s terms?

Elliot Kent
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Whilst the MRN is poorly expressed, the DM has stumbled onto the right answer.

The COA in Johnson decided that reg 54 could not be interpreted in the way that the MR request argued. It found that the result was irrational. That does not have any effect on the outcome in your client’s case.

It would be nice however if the DM could remember that their job is to decide things based on the law and not on “UC policy”.

Andyp5 Citizens Advice Bridport & District
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Elliot Kent - 30 July 2020 04:08 PM

Whilst the MRN is poorly expressed, the DM has stumbled onto the right answer.

The COA in Johnson decided that reg 54 could not be interpreted in the way that the MR request argued. It found that the result was irrational. That does not have any effect on the outcome in your client’s case.

It would be nice however if the DM could remember that their job is to decide things based on the law and not on “UC policy”.

Thanks Elliot i take your point re: the MR application lodged over a year ago as below.

Benny I would imagine the MRN is an erstwhile post Jan 2019 proforma/template that gets wheeled out..

That said it is really handy to have the MRN regardless of it’s contents, saving the need to bypass the DWP and appeal direct to HMCTS.

‘The claimants challenged the regulations on the grounds of irrationality and their discriminatory effect, and the High Court allowed their claim, in Johnson and Ors, R On the Application Of) v SSWP [2019] EWHC 23 (Admin), on the basis that the interpretation of regulation 54 by the Secretary of State for Work and Pensions (SSWP) was incorrect, holding at paragraph 56 of its judgment, that -

‘On a proper interpretation of regulation 54 of the 2013 Regulations, read in context, the amount of the earned income of a claimant in respect of an assessment period is to be based on, but will not necessarily be the same as, the amount of earned income actually received in that assessment period. There will need to be an adjustment where, as in the present case, the claimants actually received two months’ salary in one assessment period but the combined salaries do not, in fact, constitute earned income in respect of the period of time included in that assessment period. The defendant, therefore, erred in treating the combined salary for those two months’ as earned income in respect of that assessment period for the purposes of calculating the amount of universal credit payable.’

 

Andyp5 Citizens Advice Bridport & District
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Elliot Kent - 30 July 2020 04:08 PM

Whilst the MRN is poorly expressed, the DM has stumbled onto the right answer.

The COA in Johnson decided that reg 54 could not be interpreted in the way that the MR request argued. It found that the result was irrational. That does not have any effect on the outcome in your client’s case.

It would be nice however if the DM could remember that their job is to decide things based on the law and not on “UC policy”.

Thanks Elliot forgot to thank you explicitly for your gentle implied point re: the MR, yet another salutatory lesson for me to sometimes slow down and not quickly skim read and shove in a rushed MR.

I only originally posted to make the wider point i.e what the DWP are doing post etc etc, but your forensic thinking as per usual food for thought!

Just to say keep on doing what you are doing and the same applies to all the other usual contributors, making such a difference to peoples lives way beyond there localities in the pursuit of social justice etc etc!

Ianb
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I admit to being confused by this thread. What should we now be expecting to happen in these cases?

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Ianb - 04 August 2020 07:26 PM

I admit to being confused by this thread. What should we now be expecting to happen in these cases?

Not much really.

The High Court’s novel interpretation of the Regs in Johnson opened the door to arguments like the one made above. As the High Court’s interpretation was found to be wrong, these arguments won’t work (although of course Andy was not to know that when the request was made last year).

The Court of Appeal has declared that the situation of the Regs allowing the Johnson scenario to arise is irrational. This does not affect the current position. The SSWP has been instructed to “consider the best way to solve the problem”. We don’t yet know what that solution will be. It may or may not operate retrospectively and there may or may not be another “trawl”.

The latest official statement from 25/06/20:

I can today confirm my Department’s intention not to appeal against the judgment of the Court of Appeal of 22 June 2020 in the case of Johnson, Woods, Barrett and Stewart v. the Secretary of State for Work and Pensions. The judgment relates to an appeal made in January 2019 by the Department against the High Court decision.

As we told the court, identifying claimants is hard; it is a difficult issue. To date, we are aware of around 1,000 claimants who have disputed their earnings and fall within the relevant cohort. We are looking at how we can further identify people in this group. I stress that many people affected by two salary payments will not suffer a financial loss, as their universal credit award will increase in the following month to balance the reduction. However, we do recognise the budgeting issues that may have been caused, and we are now assessing the remedial options. That is not straightforward—it is not the simple click of a switch—particularly at a time when the Department is focused on meeting the challenges of unprecedented demand for its services.

I hope Members will appreciate that as the judgment was passed down on Monday, it would be remiss not to afford more consideration before we press on, particularly when the Court has not called for immediate action. We will now begin the process of carefully considering possible solutions, and we will keep the House updated as progress is made. There are, however, immediate actions that can be taken. We are already working closely with Her Majesty’s Revenue and Customs to work with employers on how to report their employees’ earnings correctly. HMRC has issued updated guidance for employers which, if followed correctly, will further reduce the small numbers affected.