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Decision in brief

That submission was that the claimant should be awarded points for daily living descriptors 3 and 5 and for mobility activity 2 – SSS had put these in issue, and it was not a relevant consideration that it was SSS rather than the claimant that sought to challenge the decision before the tribunal

Decision in brief

Claimant claimed and was refused personal independence payment (PIP) in 2022 – main issue was the claimant’s ability to plan and follow journeys – but at the hearing, the judge questioned the claimant about his immigration history including how and why the claimant came to the UK in 2016 – irrelevant and no clear rationale for the judge asking why the claimant came to the UK and whether he came to work here – also created the impression of bias (ie, that a fair-minded and informed observer would conclude there was a real possibility of bias) as per the test set out in Porter v Magill [2002] 2 AC 357

Decision in brief

Tribunal erred regarding activity 1 in failing to engage with claimant’s evidence regarding her ability to chop vegetables and instead referring to her ability to use an oven – tribunal erred regarding activity 3 in failing to explain why it did not consider that the use of a reminder on telephone to take medication was not an ‘aid’ – tribunal’s view appeared to be contrary to the definition of ‘aid or appliance’ in the rules

Decision in brief

Claimant with mental health problems who, due to overwhelming psychological distress, was rarely able to leave his home and even then needed to be accompanied by his partner – uncontested evidence of claimant was that his anxiety and panic attacks prevented him from leaving home most of the time, and although formally required to attend his work office one day a week, he was often unable to do that – often cancelled health appointments if his partner could not accompany him – ‘Where the appellant rarely leaves the house at all and is only occasionally able to make familiar or unfamiliar journeys when accompanied or prompted by his partner, it is appropriate to find that mobility descriptor 1(f) applies’

Decision in brief

Fairness and justness – breach of rule 24(5) of The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008

Decision in brief

The wording of the activity is to be interpreted as meaning that it is about only one activity (ie, of navigating and maintaining safety taken together} – the ‘maintaining safety’ element is not restricted to descriptor 8(b) (‘cannot safely complete a hazardous task...’) which is the only descriptor specifically referring – other descriptors (eg, descriptor 8a ‘unable to navigate around familiar surroundings...’) must also be applied with maintaining safety in mind – so that the claimant in this case who had a hearing impairment, might satisfy descriptor 8(a) on the basis that his inability to hear sometimes led him to collide with cyclists and scooter riders on pavements

The claimant was refused PIP. The First-tier Tribunal (FTT) upheld that refusal. In its reasons, the tribunal said that medical evidence lacked ‘detailed objective substantiation of the disabling functional effects claimed by the appellant across the PIP assessment activities’. It also referred to observations it made of the claimant at the hearing, which were that he ‘did not exhibit indicators of disability’. 

Judge Fitzpatrick allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred in three ways: (1) it seemed that the tribunal may have failed to consider whether medical evidence (in the form of an MRI scan) which post-dated the decision may nevertheless have been relevant at the date of the decision under appeal; (2) the tribunal wrongly rejected the medical evidence it did have on the basis that it did not make specific reference to the PIP activities; (3) it was not clear whether the tribunal had given the claimant the opportunity to comment on its observations of him at the hearing: that was an error of law ‘both in terms of the FTT’s failure to afford the appellant this opportunity and, given the written reasons are silent on this point, to provide adequate reasons of how it dealt with this issue’ (paragraph 25). 

Regarding error (1), the tribunal seemed to have had in mind section 12(8(b) of the Social Security Act 1998, which provides that a tribunal shall not consider ‘any circumstances not obtaining at the time the decision was made’. But, as pointed out in several decisions including R(DLA) 2/01 and R(DLA) 3/01, that refers only to post-decision ‘circumstances’, not to post-decision evidence which might nevertheless be evidence of circumstances at the relevant time. Regarding error (2), most medical reports do not make specific reference to the PIP activities. To consider such evidence as automatically inadequate or unpersuasive was so unfair as to be ‘contrary to natural justice’ and breach the claimant’s human right to a fair hearing (paragraph 20), as well as to constrain the tribunal in its task of ‘holistically considering and properly weighing all the evidence’ (paragraph 21). Rather, it was for the tribunal to make its own findings. 

Regarding error (3) and the tribunal’s observations of the claimant, the judge noted the principles adumbrated by Judge Poole QC (as she was then) in CC v SSWP (ESA) [2019] UKUT 14 (AAC) and said: ‘It is important to remember the hearing usually takes places some months after the date of the decision and is in effect a “snapshot” of an appellant’s presentation on that particular day over a relatively short space of time. Attaching weight to “on-the-day observations” should therefore be approached with caution by the FTT. It is crucial the tribunal affords the appellant the opportunity to comment on observations it may have made otherwise unfairness to the appellant can result. I note the decision of Upper Tribunal Judge LT Parker In CSPIP/45/2016 on this issue specifically paragraph 7: “Notwithstanding a tribunal is entitled to take observations into account, this is always subject to its overriding duty to provide a fair hearing; this will usually mean allowing a claimant to comment on such observations before any final adjudication is made”’ (paragraph 24). 

Comment from CPAG

Regarding whether a tribunal’s observations of the claimant should be put to them at the hearing, although this decision approvingly notes CC v SSWP (ESA) (which emphasised that this will be a matter of fairness in the context of the case but by no means automatically required), it is arguably more assertive than that decision in endorsing the view that this will ‘usually’ mean giving the claimant the chance to comment.

Summary

The claimant was considered by the local authority to have been overpaid housing benefit between 2014 and 2018. She had reported that her son had moved out of the property in 2014 (and so no non-dependant deductions had been made since then), but the local authority became aware of evidence that the son still used the property as a correspondence address and concluded that he had in fact continued to live there. The claimant appealed. The First-tier Tribunal asked the claimant to provide evidence about her son’s alleged residence elsewhere including council tax bills or oral evidence from the son. The claimant instead provided several letters which repeated her claims but focused on her belief that she was being persecuted by the local authority. 

The tribunal dismissed her appeal, making an adverse inference from the claimant’s failure to respond to what it considered to be its straightforward requests for evidence. The claimant applied for a set-aside of the decision, on the basis of witness evidence from the son and neighbours and (for the first time) a submission that the claimant had lacked mental capacity to respond to the tribunal, backed up with evidence from a consultant psychiatrist. The set-aside application was refused. A subsequent late appeal against the original decision of the tribunal (not the refusal of the set-aside) was eventually dismissed by the Upper Tribunal, which held that tribunals were well used to dealing with litigants with compromised cognitive abilities, that the tribunal had at all times acted fairly, and that the psychiatrist’s report had not established that the claimant lacked capacity at the time of the tribunal. The Upper Tribunal refused the claimant permission to appeal. 

The Court of Appeal granted the claimant permission to appeal, allowed the appeal and remitted the issue of the son’s place of residence during the period of the alleged overpayment to the First-tier Tribunal to be reheard in the light of the evidence now available. There had been a mistake of fact leading to an error by way procedural unfairness, which the Upper Tribunal (in not properly assessing the detail of the psychiatrist’s report) had not identified. That the mistake of the First-tier Tribunal was revealed by fresh (ie, post-decision) evidence was not a barrier as (per the principles in Ladd v Marshall [1954] 1 WLR 1489) the evidence was objective and uncontentious, the mistake was not the fault of the claimant or their representative and the mistake had caused unfairness. Giving the lead judgment in a unanimous decision, Lord Justice Stuart Smith noted that both the First-tier and the Upper Tribunal are required by their rules to adopt a flexible approach in order to achieve a just result and that, ‘... where a litigant in tribunal proceedings is found to have lacked capacity (or to have been compromised in their ability to participate fully in the proceedings) after the event, it may be relatively easy to conclude that there has been a mistake of fact’ (paragraph 47). Further, there may be cases ‘... where even a specialist tribunal judge will not be alerted to the difficulties that the litigant is facing. Where that is recognised at a later date, either on a set aside application or on an appeal, the full extent of the tribunal’s powers is available, up to and including setting aside or allowing the appeal, to ensure that the final outcome is fair’ (paragraph 48). This was such a case. The mistake of fact (not the fault of the claimant) was that the tribunal had considered the claimant to have capacity, when the psychiatrist’s report, properly assessed, showed that the claimant was suffering from a severe mental disorder at the time of the hearing that adversely affected her ability to participate fully in the proceedings (including in responding to evidence requests). That was something not appreciated by the tribunal and so led to an error of law by way of ‘material procedural unfairness’ (paragraph 64). The Upper Tribunal had wrongly considered that the psychiatrist’s report had not shown that. 

Comment from CPAG

Fresh (ie, post-decision) evidence and arguments will not usually permit a tribunal decision to be overturned. But this case is an example of the limited exception to that, provided by the Ladd v Marshall principles. It is also worth noting that in this case the court was dealing with a very late appeal against the tribunal’s decision and would seem to have been primarily concerned with the error of law in that decision, rather than an appeal against the refusal to set the decision aside. But clearly it considered that – for the same reason – that was wrong too.

Summary

In this High Court judicial review case, a reference has been made to the Court of Justice of the European Union (CJEU) for a preliminary ruling, and consequently no substantive decision has yet been made by the High Court. 

The case concerns a claimant (a Bangladeshi national) who came to the UK in 2021 as a dependant of her adult son (a Spanish national) who was a worker and had gained settled status in 2019. The claimant had pre-settled status. Initially she lived with him and was dependent on him, but following domestic abuse she left his home in 2023 and ceased to be dependent on him. She was refused universal credit (UC) on right to reside grounds. She applied for judicial review on grounds of discrimination. 

Mr Justice Chamberlain needed to consider a related but distinct point, namely whether the claimant had a freedom of movement right to reside (ie, under European law) as a dependant family member of a European Union (EU) citizen who had retained her right to reside as a family member after the dependency ceased, by virtue of Article 17(2) of the Withdrawal Agreement. But that involved a question as to whether Article 17(2) of the Withdrawal Agreement could apply to a person, like the claimant, who was a dependant family member outside the host state (in this case, the UK), but had only actually entered the UK after the end of the ‘transition period’ following the UK’s exit from the EU, after 31 December 2020. The judge referred this question to the CJEU.

Summary

The landlord required eight weeks rent in advance, and where that was not paid regarded the claimant as eight weeks in arrears from the outset, and requested direct payments of HB (ie, to her) immediately. The local authority refused to commence direct payments for arrears, arguing that arrears arising out of rent in advance did not count. The First-tier Tribunal agreed and dismissed the landlord’s appeal.

Judge Gray allowed the landlord’s further appeal and remitted the case for rehearing by a fresh tribunal. The tribunal had erred in holding that arrears arising from rent due in advance could not count as arrears. Rent was in arrears once the contractual date for payment had passed, irrespective of whether or not it was due in advance. The plain words of the relevant regulation (regulation 95 of the Housing Benefit Regulations 2006, No.213), mandated payment directly to the landlord where rent is the equivalent of eight weeks in arrears, subject to the required consideration of whether it was in the ‘overriding interest’ of the claimant not to make direct payments (paragraph 41). The only issue for the new tribunal was to consider the overriding interest question (paragraphs 2–3).

The judge was considering the direct payment for arrears rule at regulation 95, not the rule at regulation 96 allowing direct payment in wider circumstances (and where regulation 95 does not apply). The judge held that whether or not the eight-week-in-advance rental provision in the tenancy agreement was set with the intention of defeating the eight-week arrears rule in regulation 95 (as argued by the local authority) was irrelevant. There was a contrivance rule at regulation 9, but that concerned the issue of a tenancy contrived to take advantage of the HB scheme (paragraph 17). The judge adopted the analysis of regulation 95 made by Commissioner (now Judge) Jacobs in CH/1821/2006 and in R(H) 1/08, where he held that regulation 95, where applicable, imposes a mandatory duty to make direct payment, and that consideration of whether it is in the overriding interest of the claimant not to make direct payments was also mandatory both for the local authority and the tribunal (paragraphs 22–26). The phrase ‘overriding interest’ was to be given its natural meaning, but set a ‘high hurdle’ (paragraph 28). A policy of financial inclusion or other ‘generic’ reason cannot be the basis for deciding the question; although such issues could be ‘part of the picture’, individual criteria must also be considered, including ‘the interest in the tenant retaining the accommodation they have secured’ (paragraph 31).

Comment from CPAG

The judge said that the issue of whether arrears of rent due in advance could count was apparently a matter which arose frequently, and had been told that a binding decision will be of practical assistance. The decision must now be regarded as the key authority on the question.

Decision in brief

Activity 12(c) ‘reduced awareness of everyday hazards’ leading to significant risk of injury or damage to property or possessions – claimant vulnerable in social situations and had been subject to exploitation for sex – such hazards are not ‘commonplace or ordinary’ and so are not within the ambit of the descriptor, which is concerned with commonplace hazards encountered when going about daily life such as when making hot drinks or chopping food, crossing roads or using electric plugs

Decision in brief

Claimant already entitled to contributory ESA – awarded from date of PIP award, not from later date of award of income-related ESA – the ‘relevant benefits’ involved are ESA and PIP – regulations 6(2)(e) and 7(7)(a) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 No.991 apply