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Summary

The First-tier Tribunal refused the claimant’s appeal, holding that she was not entitled to personal independence payment (PIP). The tribunal had not put to the claimant that it did not consider her a credible or reliable witness in that it did not accept her evidence that she suffered from blackouts. The claimant appealed, arguing that the fact of blackouts occurring had been accepted by the decision maker and examining healthcare professional, and that the tribunal had erred in not giving her a chance to deal with the tribunal’s view.

Judge May QC refused the claimant’s further appeal. In the circumstances, the tribunal had been under no obligation to raise with the claimant the potential conclusion that she did not suffer from blackouts. The tribunal had relied on the evidence before it and assessed that. In its reasons, the tribunal explained that it could see no treatment for blackouts and no evidence of investigations into it until the matter had been raised in connection with the appeal. Judge May said was ‘apparent’ from the existing evidence that the examining healthcare professional ‘had doubts’ about the history given to him (paragraph 4). The claimant’s representative had been prepared to proceed on the existing evidence, and ‘it was not for the tribunal to cross-examine the evidence on the evidence that she gave. The task of the tribunal was to assess it’ (paragraph 7).

The judge did not accept that it was ‘incumbent on the tribunal to test the claimants evidence by cross-examining her on her credibility’ (paragraph 8). He considered that to be suggested in the commentary by Judge Jacobs in the book Tribunal Practice and Procedure, where it is suggested that a witness suspected to be lying must be given a chance to deal with that concern. The danger of such an approach is ‘that it could be argued that the tribunal is adopting the approach of an adversary rather than a dispassionate assessor of the evidence before it’. Judge May also considered that comments (also by Judge Jacobs) in CDLA/4585/1997 about it being good practice for tribunals to give claimants a chance to comment on any impressions that may have been formed as a result of observations at a hearing were not ‘directly in point’ in this case, as they concerned observations of a claimant made by the tribunal itself, which was not what had happened here.

Comment from CPAG

Arguably, a tribunal should be able to put concerns about credibility in a non- adversarial way. But a similar approach to that taken by Judge May QC is taken by Judge Poole QC in CC v SSWP (ESA) [2019] UKUT 14 (AAC) (7 January 2019) (file number CSE/266/2018). There a tribunal considered that the claimant’s tearfulness at the hearing was an affectation designed to help her win her appeal, but did not put that to her. The tribunal did not err. It is, held the judge, ‘not the job of tribunals to cross-examine claimants, or to put to them specifically all matters which do not support their appeal’. Natural justice is key, but what that requires varies according to context, and matters of credibility do not as a generality have to be put to claimants. In this case, the claimant herself had put her tearfulness in issue so could not have been taken by surprise by the tribunal considering it.

Summary

In this judicial review decision, the High Court held that draft rules providing for ‘transitional payments’ to severely disabled people who underwent ‘natural’ migration from legacy benefits to universal credit (UC) before 16 January 2019 are unlawful. The claimants had all been entitled to the severe disability premium (SDP) in their legacy benefit. When they underwent ‘natural’ migration to UC (after making a claim for that benefit), they were significantly worse off (as UC does not include such a premium and there is no transitional protection to the levels of the former legacy benefit in ‘natural’ migration).

Following rule changes from 16 January 2019, such claimants are now prevented from undergoing migration until they become subject to the ‘managed’ migration process, which does provide transitional protection. Rules still in draft form (the Universal Credit (Managed Migration Pilot and Miscellaneous Amendments) Regulations 2019) provide for ‘transitional payments’ to such claimants who naturally migrated before that date, to reflect their loss of the premium. But these payments are in the form of fixed-rate, generic payments rather than the transitional protection (covering the full difference in value between legacy benefit and UC) that will apply to claimants who undergo managed migration. In the claimants’ cases, these fixed-rate payments would be significantly less (by about £100 per month) than they would have been entitled to in transitional protection.

Mr Justice Swift accepted the claimants’ argument that the difference in their treatment compared to a severely disabled claimant who would get transitional protection under managed migration amounted to unlawful discrimination, via a breach of Article 14 read with Article 1 of Protocol 1 of the European Convention on Human Rights (ECHR). It was common ground that, here, transitional protection fell within the ‘property and possessions’ ambit of Article 1 of Protocol 1. It was also accepted that the difference between ‘natural’ migrants and ‘managed’ migrants (who since the 16 January 2019 changes were a proper comparator group) was a difference in status for the purposes of the prohibition of discrimination in Article 14 (paragraphs 42–43). Although discrimination was capable of justification if not ‘manifestly without reasonable foundation’, the judge was not satisfied that the Secretary of State had identified any reason that explains the difference in treatment between those (like the claimants) in the ‘SDP natural migrant group’ and those SDP recipients who since 16 January would not undergo natural migration (paragraph 64).Consequently, the parts of the draft rules providing for the transitional payments were quashed, and it was ‘now a matter for the Secretary of State to decide what should happen next’ (paragraphs 72–73).

Summary

In this case, the Court of Appeal upheld a decision by the High Court that the two-child limit was not unlawful. The claimants were lone parents with more than two children and both were affected by the two-child limit as applied to their child tax credit. They argued that the rule was incompatible with their rights under the European Convention on Human Rights (‘the Convention’). Specifically, they argued that the two-child limit was in breach of their rights under Article 8 (right to respect for private and family life) and Article 12 (right to marry and found a family) and/or was in breach of Article 14 (prohibition of discrimination).

The court unanimously dismissed the claimants’ appeals. In the lead decision, Lord Justice Legatt concluded that the two-child limit was not in breach of their Convention rights. Regarding Article 14, he concluded that although there was differential treatment of women (who were much more likely to be affected than men) and families with more than two children, the aims of the measure were undoubtedly legitimate and given the wide margin for discretion allowed to states, it could not be said that the rule was manifestly without reasonable foundation. It was therefore not unlawful (paragraph 160).

Regarding Articles 8 and 12, the ‘root difficulty’ for the claimants was that the Convention was ‘not aimed at securing social and economic aims’ but instead provided rights of a ‘predominantly civil and political’ nature (paragraph 29). There was a consistent body of authority that the Convention did not impose an obligation to provide financial support for family life, and there was nothing in the two-child limit which interfered with the claimants’ right to choose the number of children they had (paragraphs 31– 38). Regarding Article 14 and possible discrimination, there was differential treatment in that the rule disadvantages women in comparison with men, and that it treats families with more than two children less favourably than families with only one or two children. But such differential treatment is capable of justification. Authority had established that the test is whether the measure is ‘manifestly without reasonable foundation’ (paragraphs 85 – 88).

The various aims of the two-child limit were legitimate (paragraph 122). Given in particular the aim of reducing benefit expenditure, that any reduction in child-related benefit would affect more women than men and that parliament had been aware of the impact of the change, the indirectly discriminatory effect on women was justified (paragraphs 125 –132). Regarding the differential treatment of claimants with families of more than two children compared with those with fewer children, the aims of reducing benefit expenditure and of incentivising people to support themselves did not provide a complete justification (paragraphs 134 –135). Here, therefore, the burden of justification rested on the general aim of ensuring that the benefit system is fair to taxpayers, and the specific aim of placing those getting benefits in a position where they face the same financial choices regarding having children as those not getting benefits. This touched on ‘political controversy’ and, given the wide area of judgement afforded under the Convention, the rule was not manifestly disproportionate here (paragraphs 136 –145). Looking at the rule solely in terms of the interests of the children affected rather than the adults (Article 14 could apply to the children when read with Article 8 – paragraph 148), justifications of fairness to the taxpayer and parental choice could not provide complete justification. But it was ‘a matter of intense political controversy’ as to where the balance lay, and a court was ‘not a suitable institution for deciding between these competing views’. A court could therefore not properly conclude that the differential treatment of the children was manifestly disproportionate to the legitimate aims pursued (paragraphs 156 –158).

Note

CPAG represented the claimants and at time of writing was looking to seek permission to appeal to the Supreme Court.

Decision in brief

Claimant argued that the relevant interview had been cancelled – but tribunal allowed his appeal on basis that Secretary of State had not provided evidence (as directed by tribunal) that claimant had at point of referral to the Work Programme been given sufficient information to allow him to make ‘informed and meaningful’ representations about his ability to take part – tribunal erred in not explaining why in this case the failure to satisfy this ‘prior information requirement’ was material – claimant had simply argued the appointment had been cancelled – on the facts that argument did not succeed.

Decision in brief

Claimant argued that she had not failed to attend a Work Programme appointment and so should not have been sanctioned in August 2013 – but tribunal allowed her appeal on basis that the WPO5 document recording the claimant’s initial referral to the Work Programme was not in the appeal papers and so it was not satisfied the claimant had properly been referred to the scheme – tribunal erred in regarding that as a matter raised by the appeal and deciding against the Secretary of State on a matter not raised by the appeal, and also in consequently failing to deal with the claimant’s argument about non-attendance, which on the facts did not succeed.

Decision in brief

Claimant entitled to income support (IS) on basis of disability before going into prison in March 2016, claiming universal credit on his release in September 2017 – three month qualifying period at regulation 28 of the Universal Credit Regulations 2013 correctly applied (so element not included until December 2017) as claimant’s entitlement to IS was extinguished when went into prison (and did not, as tribunal wrongly reasoned, persist as underlying entitlement) – therefore transitional rule at regulation 22 of the Universal Credit Transitional Provisions Regulations 2014 did not apply.

Decision in brief

Before 4 July 2019 amendments, transitional rules had an unintended lacuna in that they failed to provide an exemption in transfer cases subject to revision or supersession from the primary rule in s83 Welfare Reform Act 2012 that a claimant over the age of 65 is not entitled to any award of PIP - Lacuna filled by amendment from 4 July 2019 – Secretary of State applied extra-statutory payments to remedy lacuna before that date

Decision in brief

Court of Appeal in Secretary of State for the Home Department v Ojo [2015] EWCA Civ 1301 held that acquisition of a permanent right to reside depends on continuous residence in a qualifying status – contrary finding in OB v SSWP (ESA) [2017] UKUT 255 (AAC) should not be followed – Ojo was not cited to the judge in OB, which is consequently to be regarded as decided per incuriam – ie, wrongly decided as made in ignorance of binding authority).

Decision in brief

Tribunal should only proceed using an unofficial interpreter (such as a family member or friend) with considerable caution – may be rare occasions when proceeding with an unofficial interpreter would be appropriate (ZO v SSWP (IB) [2010] UKUT 143 (AAC) approved).

Summary

This decision of the Supreme Court is about the ability of a tribunal (or public authority or court) to correct a decision that is held to be in violation of the claimant’s human rights. Reversing the effect of a decision of the Court of Appeal in a separate but closely related case, the court held that (subject to an exception regarding primary legislation) a public authority, court or tribunal must not act in a way that is incompatible with the claimant’s human rights, and so must remedy the breach of those rights.

The claimant lived with his severely disabled partner in a two-bedroom rented social housing property. Because of her disability he was unable to share the bedroom. However, in 2013 his local authority applied the ‘bedroom tax’ in respect of the allegedly spare second bedroom, as then provided for in regulation B13 of the Housing Benefit Regulations 2006. The First-tier Tribunal found that was to unlawfully discriminate against him as a member of a couple with a disability (and so breach his human rights), and disapplied the bedroom tax. The Secretary of State’s further appeal to the Upper Tribunal was allowed, as by then the Court of Appeal had held that tribunals were not able to remedy human rights act breaches (Secretary of State for Work and Pensions v Carmichael and another [2018] EWCA Civ 548). The claimant’s further appeal was then ‘leapfrogged’ to the Supreme Court, where it became the subject of the present decision.

The court unanimously held that the decision maker and tribunals were in fact required, under section 6(1) of the Human Rights Act 1998 (‘HRA’) to remedy the breach of the claimant’s human rights, so as to disapply the bedroom tax. Giving the lead decision, Lady Hale said: ‘there is nothing unconstitutional about a public authority, court or tribunal disapplying a provision of subordinate legislation which would otherwise result in their acting incompatibly with a Convention right, where that is necessary to comply with the HRA’ (paragraph 27). The only exception was where the incompatibility was something required by primary legislation (ie, an Act of Parliament, not as here, secondary or ‘subordinate’ legislation in the form of a housing benefit regulation that was not implementing something required by an Act). If there was a bar on remedying breaches imposed solely by secondary legislation, ‘the HRA would have said so’ (paragraph 29).