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Finding the Law

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Disability Rights UK Factsheet F19

Introduction

If you want to challenge a decision on a social security benefit or tax credits claim or win an appeal, you need to know how to find out about the law that you want to challenge. This factsheet is about how to find out about the rules, cases, practice and procedure related to social security benefits and tax credits. It should be read together with our other factsheets about challenging decisions, especially appeals and mandatory reconsideration.

1. The difference between Acts, regulations and case law

Acts of Parliament (also known as statutes) contain the basic rules about benefits (and tax credits and community care, etc). They are made by Parliament and can usually only be changed by another Act of Parliament. Before an Act is passed it is known as a Bill.

Regulations give the fine details and procedures outlined in a particular Act. They are also known as statutory instruments (SIs). A regulation can only be made where an Act of Parliament gives a specific government minister (usually the Secretary of State for Work and Pensions in the case of social security regulations) the specific power to do so. Before social security regulations are passed into law they are usually looked at by the Social Security Advisory Committee (SSAC) who can comment on them and suggest changes.

Case law means the law decided by judges of the Upper Tribunal (Administrative Appeals Chamber) or, before 3 November 2008, decisions made by Social Security Commissioners. It also means decisions made by the higher courts, including the High Court, the Court of Appeal, the Court of Session (in Scotland), the Supreme Court (previously the House of Lords) and the Court of Justice of the European Union in Luxembourg. These decisions interpret the meaning of the Acts or regulations. They are are meant to clarify the law. All these decisions set precedents for (which means they are binding upon or must be followed by) courts and tribunals. The European Court of Human Rights in Strasbourg is slightly separate from the UK legal system but since the Human Rights Act 1988 all courts and tribunals must take human rights issues into account when deciding cases.

Most of the case law in social security, tax credits and war pension cases comes from the Upper Tribunal or the Commissioners, with only a few cases going to the higher courts.

Following the referendum vote, on 23 June 2016, the UK intends to leave the European Union (EU). In addition the Government proposes to replace the Human Rights Act with a British Bill of Rights. For more about how these affect case law see F59 - brexit and human rights

2. How to find Acts and regulations

You can look up the latest Acts and regulations online at www.legislation.gov.uk. You can also buy paper copies of Acts and regulations from www.tsoshop.co.uk/

If you need more detail, the most expert and authoritative commentary is in the Social Security Legislation that is updated and published every year by law publishers, Sweet and Maxwell. It contains the most important Acts and regulations and case law together with commentary in the form of notes, thoughts and opinions by experts, academics and judges. Incidentally, the Introduction to Volume IV is a comprehensive outline of how to find the law. The Volumes are:

  •  Volume I: Non Means Tested Benefits and Employment and Support Allowance
  • Volume II: Income Support, Jobseeker’s Allowance, State Pension Credit and the Social Fund
  • Volume III: Administration, Adjudication and the European Dimension
  • Volume IV: Tax Credits Child Trust Funds and HMRC-Administered Social Security Benefits
  • Volume V: Universal Credit

Further expert and authoritative commentary can be found in CPAG's Housing Benefit and Council Tax Reduction Legislation, available at www.shop.cpag.org.uk/welfare-rights-books and Tribunal Practice and Procedure by Upper Tribunal judge, Edward Jacobs, published by Legal Action Group and available at www.lag.org.uk/bookshop/

3. How to find case law

Good places to start are our online case law summaries pages or our Disability Rights Handbook.

You can also subscribe to www.rightsnet.org.uk, to read summaries of case law decisions. They also have a free archive of older Commissioners’ decisions dating back to the 1940s at www.rightsnet.org.uk/resources/

The Courts and Tribunals Judiciary publishes decisions which are considered important. You can also suggest decisions which are suitable for publication. Many, but not all of these decisions may later be classed as 'reported' (of special note) and are also available online.

If the decision is too old or has not been put online, you can ask for a paper copy from the contacts listed at www.gov.uk/administrative-appeals-tribunal/overview

To save time trawling through the various websites searching for case reports, try a Google search instead for the reference number of the case. This should search most of the case law sites mentioned above. But bear in mind that decisions may be written slightly differently on different sites. For example CDLA/5250/02 may also be written as CDLA 5250 2002 or CDLA/5250/2002. Try all of these combinations. See also the law and commentary in the volumes of Sweet and Maxwell's Social Security Legislation.

For human rights case law go to www.equalityhumanrights.com/en/our-legal-action/legal-casework

4. Which case law is best?

Each court or tribunal can act as a precedent; here is their current order of precedence:

  1. European Court of Justice
  2. Supreme Court (formerly House of Lords)
  3. Court of Appeal in England and Wales/Scottish Court of session
  4. High Courts/Scottish Court of session

Upper Tribunal judges are bound by the decisions of higher courts. All other courts (County, Crown, Magistrates) have no power to create precedents.

You are free to cite any Upper Tribunal or Commissioner's decision but generally:

  • A decision of a tribunal of three judges (or Commissioners) carries more weight than a decision by a single judge (or Commissioner).

  • Reported decisions carry more weight than unreported ones.

  • Decision makers must choose between conflicting decisions that carry the same weight, for example two conflicting reported decisions by single Upper Tribunal judges (or Commissioners). They are under no obligation to prefer later decisions to earlier ones.

  • Decisions made in Scotland have the same weight as those made in England and Wales, while Northern Ireland decisions are not binding in Great Britain, but judges will usually find them 'persuasive'.

  • If you want to refer to an unreported decision in an appeal, you should send the tribunal a copy of this at least 14 days before the hearing.  If you don’t, the tribunal may adjourn the hearing (that is, put it off to a later date) to have time to read it. But if you just want to rely on a point made in the volumes of Sweet and Maxwell's Social Security Legislation about the unreported decision, tribunals should accept this, as the volumes are held in high regard and tribunals have their own copies with which to verify the point being argued. 

5. The meaning of Upper Tribunal case law references 

When an appeal is made to the Upper Tribunal in England and Wales it is given a reference number. In the example CDLA/234/2010:

  • C indicates that the decision is unreported (it actually stands for 'Commissioner' in a throwback to the old system)
  • DLA stands for the benefit claimed (in this case, disability living allowance)
  • 2010 is the year when the appeal was lodged
  • 234 indicates that this was the two hundred and thirty-fourth DLA case to be lodged that year

It is the same in Scotland except that, when an appeal is lodged, it gets an 'S' in the reference, for example CSDLA/121/1997.

The main abbreviations in social security disability-related cases are:

  • A - attendance allowance
  • CE - employment and support allowance
  • CG - carer's allowance
  • DLA - disability living allowance
  • I - industrial injuries benefits
  • IB - incapacity benefit
  • S - sickness/invalidity benefit and SDA
  • UK or CPIP - personal independence payment (CSPIP in Scotland)

Since the introduction of Upper Tribunal decisions in 2008 there is also an additional numbering system. For example, CIS/1094/2017  is also known as P v SSWP [2017] UKUT 505 (AAC) but the CIS reference should be enough to get you to the decision.

You should also note that decisions which are reported are considered more important and generally carry more weight than unreported decision - so it is useful to know what these are.

Reported decisions are given a new number. Under the old numbering system, this began with an ’R’: e.g., CDLA/3466/2000 is reported as R(DLA) 6/02. Under the new numbering decision, the decision will become (AACR) instead of (AAC).

If you are searching for a decision on the Courts and Tribunals Judiciary  website just use the unreported number. Once you find it, the decision will say if it is now reported and will also tell you the new number.

6. Brexit and the law

Currently a European Court of Justice decision outweighs a Supreme Court decision but on 23 June 2016 the UK voted to leave the European Union.

The UK has now invoked Article 50 of the Lisbon Treaty to notify the European Council of its intention to leave and begin negotiations with other member states for its withdrawal from the EU. EU treaties will then cease to apply within two years. The result of this will be that, from the date of withdrawal, future European Court of Justice decisions will no longer have precedence and that the Supreme Court will be the highest court.

However existing European law will be converted to UK law via a Repeal Bill. For more on this see factsheet F59 - brexit and human rights

The decision to leave the EU does not affect decisions related to the European Court of Human Rights. Judgements of this court are not part of the hierarchy of precedence but the UK Human Rights Act (HRA) provides that UK courts “must take into account” any judgment, decision, declaration or advisory opinion of the European Court of Human Rights (ECHR). However, in future, the government intends to replace the HRA with a British Bill of Rights. For more information on this see our factsheet F1 - human rights act

7. Where can I get more help or information?

This factsheet is a basic overview of finding the law on social security. You can find out more in our Disability Rights Handbook. This and all our other publications are available from our shop at https://www.disabilityrightsuk.org/shop. You can also place orders by contacting Disability Rights UK on 020 7250 8181 (this is not an advice line).

You can get help and information at an advice centre, such as Citizens Advice. You can find out how and where to get personal advice in our Getting advice factsheet. All our factsheets are free to download on our website at disabilityrightsuk.org.

11 January 2018