“Definition of non-dependant 3(1) In these Regulations, “non-dependant” means any person, except someone to whom paragraph (2), (2A) or (2B) applies, who normally resides with a claimant or with whom a claimant normally resides. (2) This paragraph applies to— (a) any member of the claimant’s family; (b) a child or young person who is living with the claimant but who is not a member of his household by virtue of regulation 16 (circumstances in which a person is to be treated as being or not being a member of the household)”
“6 Supersession of decisions (1) Subject to the following provisions of this regulation, for the purposes of section 10, the cases and circumstances in which a decision may be superseded under that section are set out in paragraphs (2) to (4).
“7 Date from which a decision superseded under section 10 takes effect […] (2) Where a decision under section 10 is made on the ground that there has been, or it is anticipated that there will be, a relevant change of circumstances since the decision had effect or, in the case of an advance award, since the decision was made, the decision under section 10 shall take effect— (a) from the date the change occurred or, where the change does not have effect until a later date, from the first date on which such effect occurs where– (i) the decision is advantageous to the claimant; and (ii) the change was notified to an appropriate office within one month of the change occurring or within such longer period as may be allowed under regulation 8 for the claimant’s failure to notify the change on an earlier date; and (iii) head (i) of sub-paragraph (c) shall be omitted. (b) where the decision is advantageous to the claimant and the change was notified to an appropriate office more than one month after the change occurred or after the expiry of any such longer period as may have been allowed under regulation 8— (i) in the case of a claimant who is in receipt of income support … and benefit is paid in arrears, from the beginning of the benefit week in which the notification was made; (ii) in the case of a claimant who is in receipt of income support … and benefit is paid in advance and the date of notification is the first day of a benefit week from that date and otherwise, from the beginning of the benefit week following the week in which the notification was made; or (iii) in any other case, the date of notification of the relevant change of circumstances … (bb) where the decision is advantageous to the claimant and is made on the Secretary of State’s own initiative— (i) except where paragraph (ii) applies, from the beginning of the benefit week in which the Secretary of State commenced action with a view to supersession; or (ii) in the case of a claimant who is in receipt of income support, jobseeker’s allowance or state pension credit where benefit is paid in advance and the Secretary of State commenced action with a view to supersession on a day which was not the first day of the benefit week, from the beginning of the benefit week following the week in which the Secretary of State commenced such action; (bc) where— (i) the claimant is a disabled person or a disabled person’s partner; (ii) the decision is advantageous to the claimant; and (iii) the decision is made in connection with the cessation of payment of a carer’s allowance or carer support payment relating to that disabled person, the day after the last day for which carer’s allowance or carer support payment was paid to a person other than the claimant or the claimant’s partner … … (7) A decision which is superseded in accordance with regulation 6(2)(e) or (ee) shall be superseded— (a) subject to sub-paragraph (b), from the date on which entitlement arises to the other relevant benefit […] referred to in regulation 6(2)(e)(ii) or (ee) or to an increase in the rate of that other relevant benefit […]; or (b) where the claimant or his partner— (i) is not a severely disabled person for the purposes of section 135(5) of the Contributions and Benefits Act (the applicable amount) […] (ii) by virtue of his having (aa) a non-dependant as defined by regulation 3 of the Income Support Regulations […]; or (bb) […], at the date the superseded decision would, but for this sub-paragraph, have had effect, from the date on which the claimant or his partner ceased to have a non-dependant or person residing with him or from the date on which the presence of that person was first ignored”
“As explained by the majority of the Court of Appeal in Wood, (a) a supersession decision alters and replaces an existing decision, (b) the ground for supersession specified in the regulations must be satisfied before the power to supersede can be used, and (c) the existing decision can only be altered in a way that follows from what has been established … As Mr Howell put it, the outcome decision must flow from the supersession ground relied upon.”
“209. At the hearing, Mr Williams argued that closed period supersession decisions are made using a single supersession decision. Decision A awards a claimant UC or HB for an indefinite period. Decision B is the supersession decision changing decision A. The relevant change of circumstances is that the claimant is not going to meet the entitlement conditions for a fixed and known period of time. Mr Williams argued that if this is identified as the relevant change of circumstances, the supersession (giving non-entitlement) only operates for that fixed period. 210. I agree with Mr Howell that the relevant change of circumstances allowing MJ and SC’s UC or HB award to be superseded, was not that they would be abroad for a fixed period, but the fact that the length and circumstances of their absences meant they could not be treated as still present in Great Britain (or have their absences disregarded). 211. This was a relevant change because it meant each claimant no longer met a condition of entitlement to their benefit. It did not matter that they would, or might, meet that entitlement condition again at a future point. Nor did it matter that the future point was more clearly identifiable in their cases than a claimant who goes abroad and does not know when they will return. 212. Applying the principles established in Wood, what Mr Williams argued for as the outcome decision - a current period of non-entitlement followed by a future period of entitlement - would not flow from the supersession ground on which he relied. The supersession ground of relevant change of circumstances therefore does not authorise changing MJ and SC’s benefit awards in the way Mr Williams argued.”
“on an application made for the purpose on the basis that the decision to be superseded …” prior to setting out the various options including those contained at regulation 6(2)(a)(i) and to 6(2)(e). It seems to me that the use of the term “on the basis” ties the application to the ground relied upon and the circumstance leading directly to the arising of the ground. Put another way, and to use Mr Cooper’s word, there must be a trigger to enable a supersession to take place and the trigger determines which is the applicable ground or grounds. In this case the trigger was not the appellant establishing entitlement to a second relevant benefit. It was the departure of the adult son from the family home. Had he not departed there would not have been grounds for supersession. So, the supersession was made and, on the facts, could only have been properly made under regulation 6(2)(a)(i). I can see that there is a degree of overlap between the two sub-paragraphs in the sense that the acquiring of a second benefit where there is not a non-dependant in the household could be regarded both as a relevant change of circumstances whilst also falling with the scope of 6(2)(e) and that would mean, in appropriate cases, backdating might be permissible under regulation 7(7) even though regulation 6(2)(a) was one of the two sub-paragraphs which had application. However, that is not the situation here. I am fortified in my view, although I would have reached the same view without it, by what was indicated by the Tribunal of Commissioners in R(IB) 2/04. At paragraph 10(4) the Tribunal of Commissioners said this: “It was common ground between Mr Drabble and Miss Lieven - and in our judgment rightly so - that the decision of the Court of Appeal in Wood v. The Secretary of State for Work and Pensions[2003] EWCA Civ 53 (reported as R(DLA) 1/03) is authority for the propositions that: (a) there can be no supersession under section 10 unless one of the grounds for supersession specified in regulation 6 is actually found to exist, and (b) the ground which is found to exist must form the basis of the supersession in the sense that the original decision can only be altered in a way which follows from that ground.” “It was common ground between Mr Drabble and Miss Lieven - and in our judgment rightly so - that the decision of the Court of Appeal in Wood v. The Secretary of State for Work and Pensions[2003] EWCA Civ 53 (reported as R(DLA) 1/03) is authority for the propositions that: (a) there can be no supersession under section 10 unless one of the grounds for supersession specified in regulation 6 is actually found to exist, and (b) the ground which is found to exist must form the basis of the supersession in the sense that the original decision can only be altered in a way which follows from that ground.”
“24. Applying that to the instant case and the particular facts and the sequence of events arising in it, the original decision which has been superseded was and could only have been altered as a result of the change of circumstance which was the son leaving. So, it could only have been altered in a way which followed from ground 6(2)(a)(i) arising. There could not have been any alteration following the circumstances envisaged in 6(2)(e) because on the facts of this case the establishment of entitlement to the second benefit did not, of itself, give rise to any potential entitlement to the severe disability premium bearing in mind the then ongoing presence of the non-dependant son. The position then, it seems to me, is that with respect to backdating, the only applicable provision is regulation 7(2). That, of course, relates to a supersession on the grounds of an actual (as in this case) or an anticipated relevant change of circumstances. Since the decision to supersede was advantageous to the claimant and since, as is not disputed, the change of circumstances was notified to the respondent more than one month after the change occurred, then regulation 7(2)(b)(i) has application. Regulation 7(7) has no application because the supersession was not carried out under regulation 6(2)(e) or (ee). 25. Mr Khan, as noted, had contended that regulation 7(7)(b) must have some purpose and that it would have no purpose if backdating was not permissible to the date of entitlement to the second benefit even where supersession had actually been triggered by a later departure of a non-dependant. 26. Regulation 7(7) seems to me, in some respects, to be a difficult provision and perhaps even an imperfectly or unclearly drafted one. However, ultimately, since I am accepting Mr Cooper’s argument that the supersession, on the facts of this case, could only have been carried out under regulation 6(2)(a)(i), regulation 7(7)(b) can have no application.”
“... head (ii) [of reg.6(2)(e)] applies only where the other relevant benefit or an increase of it has been awarded. An award in that sense is something that can only stem from a decision by the Secretary of State or by a First-tier Tribunal or the Upper Tribunal or some higher court on appeal...”
“[69] … Leggatt LJ agreed with the judge that, in article 14, the words from “on any ground such as” to “or other status” (para 36 above) were intended to add something to the requirement of discrimination. It followed that status could not be defined solely by the difference in treatment complained of: it must be possible to identify a ground for the difference in treatment in terms of a characteristic which was not merely a description of the difference in treatment itself. On the other hand, he also observed that there seemed to be no reason to impose a requirement that the status should exist independently, in the sense of having social or legal importance for other purposes or in other contexts than the difference in treatment complained of. In that regard, Leggatt LJ referred to some illustrations in the European and domestic case law, such as the judgment of the European court in Paulik v Slovakia 46 EHRR 10, where “there was no suggestion that the distinction relied upon had any relevance outside the applicant’s complaint but this did not prevent the court from finding a violation of article 14” (Clift v United Kingdom (Application No 7205/07) (unreported) given13 July 2010 , para 60).”
“[24] …the classic Strasbourg statements of the law do not place any emphasis on the identification of an exact comparator. They ask whether “differences in otherwise similar situations justify a different treatment”.”
“[15] … In my view, all grounds of supersession can apply in so far as the conditions they contain are made out, without any artificial rules to try to make them mutually exclusive. So far as decisions that are advantageous to the claimant go, there is then no difficulty in applying a general principle that the claimant should be able to take the benefit of whatever ground gives the most advantage. So far as decisions that are not advantageous to the claimant are concerned, which will in the great majority of cases be supersessions carried out at the Secretary of State’s own initiative, I do not see why the same principle cannot apply. The Secretary of State is entitled to rely on whatever of the grounds of supersession that are made out that result in what he says is the correct position being applied for the longest period.”
“[161] … rather than trying to arrive at a precise definition of the ambit of the “manifestly without reasonable foundation” formulation, it is more fruitful to focus on the question whether a wide margin of judgment is appropriate in the light of the circumstances of the case. The ordinary approach to proportionality gives appropriate weight to the judgment of the primary decision-maker: a degree of weight which will normally be substantial in fields such as economic and social policy, national security, penal policy, and matters raising sensitive moral or ethical issues. It follows, as the Court of Appeal noted in R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department (National Residential Landlords Association intervening)[2020] EWCA Civ 542 ;[2021] 1 WLR 1151 and R (Delve) v Secretary of State for Work and Pensions[2020] EWCA Civ 1199 ;[2021] ICR 236 , that the ordinary approach to proportionality will accord the same margin to the decision-maker as the “manifestly without reasonable foundation” formulation in circumstances where a particularly wide margin is appropriate.”
“A decision which is superseded in accordance with regulation 6(2)(e) … shall be superseded – (a) subject to sub-paragraph (b), from the date on which entitlement arises to the other relevant benefit… referred to in regulation 6(2)(e)(ii) …”
“So far as concerns her Zambrano status, that is a creation of European law, and such differences of treatment as there are, as compared to other categories of resident, do no more than reflect the law by which the status is created.” (c). However, an “other status” did not have to rest on a personal characteristic in all cases and it might derive from the manner in which a person had been treated (see Application No 7205 Clift v UK (2010) and the discussion in Stott at [72] – [75]). For example, being a member of a household which contained more than two children (or being a child of such a household) was an “other status” for the purposes of Article 14 (per Leggatt LJ in R(C) v Secretary of State for Work and Pensions[2019] 1 WLR 5687 at [76]) (d). In such cases, where the status was a reflection of “what people do, or… what happens to them”, the court’s standard of review was less intensive (per Lord Walker in RJM at [5]). Taking the example above of a family with two children, that was a status which “lies on the outer periphery” (at [78]) and was not a classification “which requires particularly convincing or weighty reasons to justify making it a ground for treating people differently.”
“is an original award within the meaning of regulation 3(7ZA) and sub-paragraphs (a) to (c) of regulation 3(7ZA) apply but not sub-paragraph (d)”
“Currently, an Income Support (IS) claimant who has a non-dependant in their household who is in receipt of certain benefits (known as a “qualifying benefit”) can be awarded the severe disability premium (SDP). There is no problem if the non-dependent is in receipt of the qualifying benefit at the time of the IS claim. However, a problem arises when the non-dependent is waiting for his benefit claim to be decided. It means the IS has to be paid without the SDP. When the claim is finally decided, the Decision Maker needs to be able to increase the IS from the date that the nondependent receives his benefit. If this is from the date from which Income Support was first awarded, then the Decision Maker must be able to revise that decision from the same date. The amendments in Regulation 2(2)(a), 2(4)(b) and 2(5)(c) will allow this to be done.”
“47. There is clearly a difference in treatment between disabled persons who claimed income support before5 January 2009 , and those who first claimed it on or after that date. The former are subject to the£100,000 limit on the value of the loan for which interest can be paid under the SMI scheme, whereas the latter have the benefit of the£200,000 cap … The only difference between her position and that of another disabled person who can take advantage of the£200,000 cap is the date of her claim for income support.”
“Any legislation will differentiate. It differentiates by identifying certain classes of persons, while failing to differentiate within these or other classes of persons. The art of legislation is the art of wise differentiation. Therefore any legislation may be contested from the viewpoint of the principles of equality and non-discrimination and such cases have become more and more frequent in the courts.”
“Judicial independence is accepted only if the judiciary refrains from interfering with political processes. If the judicial power is to be independent, the judicial and political spheres have to remain separated.” “Any legislation will differentiate. It differentiates by identifying certain classes of persons, while failing to differentiate within these or other classes of persons. The art of legislation is the art of wise differentiation. Therefore any legislation may be contested from the viewpoint of the principles of equality and non-discrimination and such cases have become more and more frequent in the courts.” “Judicial independence is accepted only if the judiciary refrains from interfering with political processes. If the judicial power is to be independent, the judicial and political spheres have to remain separated.”