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Decision in brief

Requirement is that claimant has a mental condition that (in the context of reading problems) affects his ability to read or learn to read - regarding following 'the route of a journey' it is the route that matters, not the destination, and so the journey envisaged does not have to be a local one - in practical terms it may be sufficient to consider a local journey but it would be wrong to apply that as a matter of law - the only qualification in the descriptors is the distinction between familiar and unfamiliar journeys -the test is general in nature, without reference to the individual characteristics of the route, other than whether it is familiar or unfamiliar

Decision in brief

It is not axiomatic that an apparently purposeless appeal must lapse -this is especially so where the section 18 decision has not been appealed - where there is no section 18 appeal and the outcome of the section 16 appeal may affect the section 18 decision, the section 16 appeal should continue unless or until an effective appeal against the section 18 decision is lodged

Decision in brief

Possession of a European Health Insurance Card (EHIC) not proof of comprehensive sickness insurance in circumstances in which there is no other member state required to reimburse the UK with costs of healthcare - on facts of the present case, claimant clearly habitually resident in UK rather than on a 'stay' and UK could not successfully have claimed costs from Italy on the basis of the EHIC

Decision in brief

But primary focus is on the cognitive or intellectual function of making decisions - physical disabilities can be the source of difficulties with these, but it will only be in 'the most extreme set of circumstances that limitations flowing from a physical disability alone will result in a person having limitations in relation to making budgeting decisions' as set out in Activity 10

Summary

This decision of the Court of Appeal considers the so-called ‘past presence test’ for disability benefits in the context of claimants who are European nationals.

The claimants (BK and MM) were, respectively, an Irish national aged 12 who came to the UK with his mother, and claimed disability living allowance (DLA), and a German national who came to the UK to be cared for by her daughter and claimed attendance allowance (AA). Where a European claimant is covered by the European Union (EU) co-ordination rules and is habitually resident in the UK, rules (regulation 2A of the Social Security (Attendance Allowance) Regulations 1991, No.2740, and regulation 2A of the Social Security (Disability Living Allowance) Regulations 1991, No.2890) provide that the past presence test does not apply if the claimant can demonstrate a ‘genuine and sufficient link to the United Kingdom social security system’. In BK v SSWP and SSWP v MM [2016] UKUT 547 (AAC), it had been held by Judge Jacobs in the Upper Tribunal that neither claimant could demonstrate a genuine and sufficient link to the UK (the requirement for a link to the UK social security system was unlawful as contrary to EU law). (Judge Jacobs had also held that ‘mere’ residence in the UK did not allow aggregation with periods of residence in the previous EU country: the claimants did not pursue their appeal against this aspect of the decision.)

Allowing the claimants’ further appeals, the Court of Appeal held that both claimants could demonstrate a genuine and sufficient link to the UK. Both were European nationals who fell within the European ‘co-ordination’ rule at EC Regulation 883/2004, and it was common ground that both were habitually resident in the UK (paragraphs 34–35). Applying principles from European caselaw, when establishing whether the claimant had a ‘genuine and sufficient link’, all relevant evidence had to be taken into account, including family and other personal circumstances. Evidence of the ‘motives, intentions and expectations’ of the claimant were not to be ignored. Also, it was common ground that the required link was to the UK and could not be to the UK social security system (paragraphs 67–69).

Regarding the claimants in the present decision, the Upper Tribunal had erred in considering the motives of BK, or rather those of his mother, as irrelevant. Those motives included that BK’s mother relocated to the UK, her country of nationality, following domestic violence, needed the support of relatives in the UK and severed all links with the Republic of Ireland. In those circumstances the decisions refusing the DLA were flawed in principle and BK did have a genuine and sufficient link to the UK (paragraphs 74–76). Similarly, the Upper Tribunal should have taken into account MM’s motive, intentions and expectations, which included her severe disability and need for support on a daily basis from her daughter in the UK. Again, therefore, the decision was flawed in principle and with regard to all the relevant matters, MM did have a genuine and sufficient link to the UK (paragraphs 79–85).

Decision in brief

Refers to ability to cook using a conventional cooker without prompting, supervision or assistance and (if cannot do so) ability to cook without such help using a microwave - but if claimant does need prompting, supervision or assistance, consideration needs to be given to a higher scoring descriptor (d to f), as the highest scoring descriptor is the one that applies

Summary

In this decision a two-commissioner tribunal of Northern Ireland Commissioners considered the correctness of a decision to decide an ESA appeal on the papers, in a case where the claimant had not received the official form enquiring whether or not he wanted an oral hearing.

Chief Commissioner Mullan and Commissioner Stockman decided that the tribunal had erred in not holding an oral hearing. In so doing, they considered the relevant Northern Ireland legislation, in particular regulations 39 and 46 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 {SI No.162). That requires the appellant to indicate his choice of hearing on a form, and includes that if the form is not returned within the time limit, the appeal may be struck out. The Commissioners held that, on the facts of the case, it was 'clear that the appellant had not unequivocally waited his right to an oral hearing' (paragraph 43). The regulations were silent on what should happen where the enquiry form was not returned but the appeal was not struck out. Holdin,9" a paper 'hearing' was the practice of The Appeals Service (TAS) in Northern Ireland, but there was no basis for that in the regulations, and 'it would have been equally valid to have listed the appeal as an oral hearing with notification to the appellant' (paragraph 44).

Further, the Commissioners considered that there was a basic right to an oral hearing of an ESA appeal. In Miller v Sweden [2005) ECHR 71, the European Court of Human Rights held that the right to a 'fair and public hearing' at Article 6(1) of the European Convention on Human Rights (ECHR) entailed an entitlement to an oral hearing, unless there were 'exceptional circumstances'. Such exceptional circumstances could arise in social security schemes where the outcome 'usually depended upon the written opinion given by medical doctors' {decision quoted at paragraph 31 ). Taking into account statistics showing the much higher success rate for appellants in ESA appeals where there was an oral hearing, in the present decision the Commissioners concluded that, 'it appears to us that ESA appeals have characteristics which mean they are more accurately determined on the basis of oral evidence together with documentary evidence than on the basis of documentary evidence alone' (paragraph 37). Therefore, the principles in Article 6(1) implied a right to an oral hearing in ESA appeals, 'and we further accept that in general terms that there are not exceptional circumstances that justify dispensing with an oral hearing within the meaning of Miller v Sweden' (paragraph 38).

Comment from CPAG

As a decision of the Northern Ireland Commissioners, this decision is formally of persuasive rather than binding authority in Great Britain. However, it has been highlighted by the Upper Tribunal in Great Britain. The situation is further complicated in that in Great Britain the directly relevant provision is at rule 27 of Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI No.2685), which provides in effect that an oral hearing of any appeal must be held, unless all of the parties have consented to, or not objected to, a decision on the papers and the tribunal considers that an oral hearing is not required. More widely, however, the emphasis on the importance of oral hearings in ESA appeals (the statistics used were from appeals in Great Britain) is noteworthy in the context of the current intention to move all social security appeals online - see Bulletin 254, p3, and the article on p5 of this Bulletin.

Summary

The claimant, a British national, was resident in Northern Ireland. Her award of working tax credit included a childcare element. The childcare provider was located in the Republic of Ireland. Eventually, HMRC decided that, because the childcare provider was not an approved provider outside the UK, there was no entitlement to the childcare element, although it did not attempt to recover the overpayment from the claimant. The claimant's appeal was dismissed.

A Tribunal of Northern Ireland Commissioners (Chief Commissioner Mullan, Commissioner Stockman and Deputy Commissioner Ward) allowed the claimant's further appeal, and substituted a decision that the claimant was not disentitled solely on the basis that her childcare provider was located outside the UK and therefore not providing eligible childcare within regulation 14(2) of the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002 {SI No.2005). The claimant had a right (under Article 56 of the Treaty on the Functioning of the European Union) to receive services from a childcare provider in another member state, and the decision to find that she was not entitled to the childcare element was unlawful under EU law (paragraphs 43, 90-92, 105(i) and (viii)).

The Commissioners raised a doubt about the existence and validity of the regulations providing for authorisation of childcare providers outside the UK, but held that even if they were, they could not (under EU law) be accepted as a proportionate scheme of authorisation, not least because, as HMRC described them exclusively in terms of Crown servants overseas, they were insufficiently transparent and accessible (paragraphs 79, 90-92, 105(vii)).

Note: as a decision of the Northern Ireland Commissioners, this decision is formally of persuasive rather than binding authority in Great Britain. However, it considers legislation applying in the UK, and has been highlighted by the Upper Tribunal in Great Britain.

Summary

The claimant was a national of a European 'AB' state. Before claiming JSA and eventually being awarded it in April 2014, he was found to have been exposed to trafficking on two occasions. Although he was awarded JSA with a finding that he had the right to reside as a jobseeker, he appealed as he wished to argue that he had a retained worker status. The First-tier Tribunal rejected the claimant's appeal, finding that there was insufficient documentary evidence to hold that the claimant had worker or retained worker status.

Judge Ward rejected the claimant's further appeal. Although the tribunal may well have erred in finding that there was insufficient documentary evidence, and in not investigating whether the claimant had been a worker before the first trafficking incident, that did not matter regarding an appeal about JSA in which the claimant in fact had already been awarded the benefit (paragraphs 18-23). On the facts of the case, the judge considered that the claimant's work during the trafficking incidents was not sufficient in itself to give him worker status as it was not enough to be 'genuine and effective'. However, the judge noted that it was not the case that only lawful work was relevant to establishing worker status (JA v SSWP (ESA) UKUT 122 (AAC) cited), and ' ...a trafficked person is not precluded from arguing their case on ordinary principles - including that they can demonstrate that they are a worker or have retained worker status' (paragraphs 21-22).

Underlying the claimant's appeal was a concern that merely having jobseeker status did not give him a right to reside for housing benefit purposes. But the judge held that as a matter of law, 'the decision on the right to reside for the purposes of a JSA claim is not determinative for housing benefit purposes' (paragraph 24). The local authority was not fixed with the decision already taken on that point by the DWP, and the claimant could argue the point afresh with the local authority. The claimant had in fact been granted discretionary leave under the Immigration Act (as a victim of human trafficking) from October 2014. Such leave meant that he could claim both JSA and housing benefit without the restrictions that apply to other European claimants; however, the leave was granted after the date of the decision under appeal and did not invalidate it (paragraphs 9-12).

Summary

The claimant received a four-week sanction on her JSA for failure to participate in the Work Programme by attending a Work Programme appointment. On appeal, the claimant stated that she had not received the letter requiring her to attend. The tribunal directed the Secretary of State to supply copies of the relevant documents. Although the evidence was supplied, albeit late, the tribunal appears not to have received it. It allowed the claimant's appeal on the basis that a sanction could only be imposed if the claimant had been appropriately notified of the requirement to participate. The tribunal 'drew inferences' from the Secretary of State's failure to provide the requested evidence, such that the claimant had not been adequately notified and so had not failed to participate.

Allowing the Secretary of State's further appeal and remitting the case to a fresh tribunal, Judge Rowland held that there had been an inadvertent breach in the rules of natural justice by the tribunal making the decision it did, when in fact the evidence had been supplied (paragraphs 10-11). Also, however, there was an error in that the tribunal's reasons did not properly explain why it drew an adverse inference from the Secretary of State's apparent failure to provide the evidence. The judge said, 'Where there has been a failure to comply with a direction to provide evidence, a tribunal may well be entitled to draw an adverse inference against the offending party; that is to say that it may infer from the failure that the facts are not as the offending party says they are. However, it is not entitled to do so merely as a punishment. It is appropriate to draw an adverse inference only if the tribunal it satisfied that it is probably that the reason for the failure to comply with the direction is that the evidence does not exist or would harm the offending party's case' (paragraph 12).

In the present case, there could 'plainly have been other realistic reasons' for the failure to comply', and so the tribunal's reasons needed to address what the 'inherent probabilities' were' (paragraph 17). That was not, however, to minimise the importance of the Secretary of State, as a party to the appeal, complying with directions. The Secretary of State is not entitled merely to ignore a time limit in a direction, nor is he entitled to make an unexplained application for extension of time on the assumption that it will be granted (paragraph 18).

Summary

The claimant owned a property not lived in as her home. She tented it out and acted as a landlord to the tenants. Her claim for HB was refused on the basis that the value of the property represented capital in excess of the limit of £16,000. Her appeal to the First-tier Tribunal was refused.

Judge Jacobs held that the tribunal had not erred in law - ie, that the claimant was lawfully treated as possessing capital in excess of the limit. The main issue raised before the judge was whether the property was a business asset, in which case its value was to be ignored (under paragraph 8 to Schedule 6 of the Housing Benefit Regulations 2006, SI No.213). Reviewing relevant caselaw from a number of jurisdictions, the judge drew a number of conclusions about the approach to whether a 'business' was being conducted in such circumstances, including: (1) the meaning of 'business' depends on its context in the legislation (paragraph 16); (2) the number of properties being let out and the number of units that are let are not decisive, but letting a single property as a unit is unlikely to be a business, whereas letting out a single property as units for multiple occupation or letting out more than one property is more likely to be a business; in any case, the amount of administration and activity involved may create a business (paragraph 18); carrying out the duties of a landlord is not sufficient; beyond that no single factor is decisive and it is the combined effect of all the facts and circumstances that count (paragraph 19).

On the facts of this case, the claimant's duties as a landlord (collection of rent, repairs, etc.) were not sufficient to constitute a business (paragraphs 27-28). The value of the property therefore counted as the claimant's capital. Although the value may be affected by the presence of tenants, in this case the evidence showed that it was not significant as the valuations showed the presence of shorthold tenants did not significantly affect the value, and the claimant would be able to secure vacant possession in a reasonable time (paragraphs 31-34).

Decision in brief

Claimants were single after splitting up as a couple – house rented as a joint tenancy but under a legal agreement each claimant had exclusive use of a bedroom and living room – local authority and First-tier Tribunal applied one- bedroom shared accommodation rate, on basis that as one claimant got carer’s allowance for caring for the other, there was no ‘exclusive’ use of two rooms, and house rented as a joint tenancy – held that ‘exclusive’ use is in contradistinction to ‘shared’ use, and was about whether there was an exclusive right, not the actual use of the room – and must be able to look beyond any tenancy to look at subsidiary agreements that have legal force (such as subletting) – on facts of the case, claimants had a legal agreement regarding exclusive use of rooms such that the one-bedroom self-contained rate applied