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Summary

In this decision, the Court of Appeal dismisses the appeal by the Secretary of State against the decision in the Upper Tribunal of Judge Ward in SSWP v WV (UC) [2023] UKUT 112 (AAC). There it had been held that, on the facts, the claimant had a freedom of movement right to reside as a self-sufficient person where he relied not only on his carer’s allowance but also in part on the means-tested benefits paid to his British partner, where those benefits were not paid at a higher rate due to him.

The claimant was an EU national married to a British citizen. He came to the UK in 2017. He was a carer for his wife who was a severely disabled person in receipt of income-related employment and support allowance (ESA), child tax credit and housing benefit as well as personal independence payment. His presence in the couple meant that his wife’s income-related ESA was reduced by the loss of the severe disability premium and by his carer’s allowance. When he and his wife claimed universal credit (UC) as a couple in 2020, he had pre-settled status under the EU Settlement Scheme – ie, insufficient in itself for UC purposes. The claimant was held not to have a European freedom of movement right to reside. However, Judge Ward found that in principle the claimant could rely on the means-tested benefits paid to his wife to establish such a right as a self-sufficient person. On the facts, the claimant had suff cient resources not to become a burden on the social assistance of the UK down to the point of claim for UC. The extra UC that would therefore be paid to them as a couple was £347 a month. The judge considered that was a relatively small amount, that the claimant was due to acquire settled status in about 23 months, that the numbers of other claimants with sufficiently similar facts to benefit from this finding was small, and so there was no unreasonable burden on the social assistance system of the UK from so concluding. 

The Court of Appeal unanimously dismissed the Secretary of State’s further appeal. Giving the lead decision, LJ Singh held that on the facts Judge Ward had not erred in law, including in holding that in principle a claimant could rely in part on the means-tested benefits made available to him by his partner. However, the facts were particular and unusual: ‘It is clear therefore, in my view, that the critical part of the judge’s reasoning was that, on the unusual facts of this case, there would be no increase in the burden on the UK social assistance system’, as a result of the claimant having joined his British wife in the UK, with the ‘reasoning and impact’ of the decision being ‘relatively narrow’ (paragraphs 69 and 70). The ‘crucial point’ was that, on the facts, ‘there was no increase, but rather a decrease, in the burden on the UK’s social assistance system’ by reason of the claimant having exercised his European freedom of movement rights (paragraph 71).

Summary

Following completion of attendance on the Work Programme, the claimant was required to agree to an amendment to her jobseeker’s agreement, increasing the number of ‘steps’ she would take from three a week to 14. She was then told she was being referred to a mandatory two-week training scheme called Skills Conditionality. The claimant objected and eventually lodged an application for judicial review. Subsequently, the claimant was required to sign another amendment to her jobseeker’s agreement, increasing the number of weekly work-seeking steps to 20. Before that could be subject of a challenge, the claimant ceased claiming jobseeker’s allowance.

Judge Hickinbottom rejected arguments by the claimant that the Skills Conditionality scheme was not adequately described in the relevant regulations (the Jobseeker’s Allowance (Schemes for Assisting Persons to Obtain Employment) Regulations 2013 No.276), and that the requirement on her to participate failed to comply with the notice requirements in those regulations. Skills Conditionality was adequately (even if only quite generally) described in regulation 3(7), and the case was therefore distinguishable from the 2011 scheme that was the subject of decisions culminating in that of the Supreme Court in R (Reilly and Wilson) v Secretary of State for Work and Pensions [2013] UKSC 68 (30 October 2013) (paragraphs 74–75). The notice to participate sent to the claimant fulfilled the requirements of regulation 5(2)(c) to contain ‘details of what the claimant is required to do by way of participation in the Scheme’, even though it did not contain details of the required hours of attendance, given the surrounding circumstances which included that requirement was to attend a specific course at a college over an 11-day period, and the nature and content of the course had been explained to the claimant (paragraphs 79–83).

Regarding the jobseeker’s agreement, the claimant argued that under sections 1 and 7 of the Jobseekers Act 1995 and regulation 18 of the Jobseeker’s Allowance Regulations 1996 No.207, as applied by CJSA/1814/2007, the agreement could not require her to take more than three steps a week. Rejecting that, the judge held that although the agreement ‘may of course assist in identifying what a claimant needs to do to demonstrate that he is actively seeking work’, that was not the only purpose of the agreement, and that failure to fulfil commitments in the jobseeker’s agreement did not in themselves lead to loss of entitlement (paragraph 94). Rather, section 7 and regulation 18 defined the requirement to be actively seeking work, so that it was where they were breached that entitlement was affected. Regulation 18 requires that ‘a person shall be expected to have to take more than two steps in any week unless taking one or two steps is all that is reasonable for that person to do in that week’. But the correct construction was that regulation 18 ‘set a presumptive norm for the minimum number of steps’ that could be required – ie, not a maximum of three. Consequently, a claimant could be required to take more than three steps per week to demonstrate that s/he is actively seeking work, and the adviser in the claimant's case had been entitled to increase the number of steps in the jobseeker's agreement (paragraphs 95–96).

Decision in brief

No specific such right to reside in the rules – no valid analogy with decision in Saint Prix v SSWP, Case C-507/12, reported as [2014] AACR 8 – that concerned stopping work in late-stage pregnancy and it being established that that was a ‘special’ case (ie, concerning pregnant women still in the labour market) rather than creating a category of workers forced to stop work – no argument based on proportionality – that only applies to ‘lacuna-filling’ an unintended gap in the relevant European Union law ( (SPC) [2017] UKUT 179 (AAC) and LO v SSWP (IS) [2017] UKUT 440 (AAC)) – giving up work in these circumstances not an unintended gap – clear authority that a parent who has left the labour market to care for her children does not retain the status of worker (SSWP v Dias [2009] EWCA Civ 809 cited).

Summary

Ms Mirga is a Polish national who had first come to the UK as a child, and she was aged 19 at the time of her claim for income support on the basis of pregnancy. Previously, she had worked in the UK for several months. Her claim was refused on the basis that she did not have a right to reside. Mr Samin, an Austrian citizen, was not a worker or looking for work by the time he applied for housing assistance under homelessness legislation, and had poor mental health including at a moderately high risk of suicide. His application was refused on the basis that he did not have a right to reside.

It was argued for the claimants that the refusals were unlawful as the domestic regulations under which right to reside was refused (the Immigration (European Economic Area) Regulations 2006 No.1003) infringed their rights under the Treaty, in particular the right under Article 21.1 to move and reside freely within the EU, and the prohibition under Article 18 of discrimination on grounds of nationality. It was also argued that the refusal of a right to reside to the claimants was flawed as it had made no reference to the proportionality of such a refusal, bearing in mind all the circumstances of their cases.

By a unanimous decision, the Supreme Court rejected both arguments and dismissed the appeals. Giving the decision for the Court, Lord Neuberger considered that the rights under Articles 21.1 and 18 only arose where the claimant lawfully resided under EC Directive 2004/38/EC ('the Directive'), which provided for the right to reside rules (paragraphs 43-47). Further, the Court considered that the decisions of the European Court of Justice (ECJ) in Dano and another v Jobcenter Leipzig (Case C-333/13) [2015] 1 WLR 2519 and Jobcentre Berlin Neukoln v Alimanovic (Case C-67 /14) [2016] 2 WLR 208 provided clear guidance that the rights relied on by the claimants only existed where they resided in accordance with the Directive - ie, had a right to reside (paragraphs 48-57).

The Court also dismissed the proportionality argument. In this context, the claimants had referred particularly to the decision of the ECJ in Pensionsversicherungsanstalt v Brey (Case C-140/12) [2014] 1 WLR 1080, in which the Court held that before finding that the residence of a claimant placed an unreasonable burden on its social assistance system, it was required to take account of the individual situation of the person concerned. But, in the present decision, the Court considered that Brey could not assist the appellants in the light of the subsequent reasoning of the ECJ in Dano and Alimanovic. Lord Neuberger commented: 'it seems unrealistic to require "an individual examination of each particular case'" (paragraph 69), and that 'where a national of another member state is not a worker, self-employed or a student, and has no, or very limited means of support and no medical insurance (as is sadly the position of Ms Mirga and Mr Sam in), it would severely undermine the whole thrust and purpose of the 2004 Directive if proportionality could be invoked to entitle that person to have the right of residence and social assistance in another member state, save perhaps in extreme circumstances' (paragraph 69). The claimants' applications represented precisely what the ECJ in Dano had said was the aim of the 2004 Directive to stop, namely 'economically inactive Union citizens using the host member state's welfare system to fund their means of subsistence' (paragraph 71).

Summary

In this judicial review decision, the applications for judicial review were made by carers getting carer's allowance (CA) for looking after disabled grandparents (in one of the claims, the disabled grandmother was also an applicant). The carers were also claiming housing benefit. Under the relevant rules (regulations 75G and 75F of the Housing Benefit Regulations 2006 No.213) neither CA as a benefit nor carers looking after a family member other than a partner or dependant child are exempted from the cap. One of the carers was a single parent who, as a result of the cap being applied, fell into arrears and was evicted, and was now living in a single room with her four children. The other carer had very poor health himself, including mental health problems.

The main argument made by the claimants was that the benefit cap unlawfully discriminated against both the carers and the disabled grandparents, and was therefore in breach of Article 14 of the European Convention on Human Rights (ECHR), read together with Article 1 of Protocol 1 (right to possessions) and Article 8 (right to private and family life). In the High-Court, Mr Justice Collins noted that it was accepted that Article 1 of Protocol 1 was engaged (paragraph 43). He further held that although it was disputed by the Secretary of State that Article 8 applied, that did not matter to the carers since Article 1 of Protocol 1 applied to them, and Article 8 certainly applied to the disabled grandparent, as 'it is clear that many disabled persons would choose to have their needs, particularly where intimate care is concerned, dealt with by family members or relatives whom they can trust. .. the desire for care to be administered by a particular family member or relation will almost always be likely to fall within Article 8' (paragraph 46).

The judge then considered whether there was indeed a breach of Article 14. The test was whether the claimant was treated differently, and whether the difference in treatment was then unlawful as having 'no objective and reasonable justification'., a test which in the context of benefits had been formulated as whether the difference was 'manifestly without reasonable foundation' (paragraphs 58 and 68). The judge considered in the present cases that even though the claimants were carers, it was right to consider if there was discrimination against the disabled because, as a result of the cap, 'a significant number of those who are at present care for in what can broadly be called a family context are unable to have that care continue'. There was, therefore, adverse treatment where a family carer was not exempt as 'although care can be provided by others, the loss of the trusted carer can be devastating' (paragraph 63). The judge held that, although the benefit cap policy had a legitimate aim (paragraph 65), this discrimination was not justified as the 'manifestly without reasonable foundation' test was not met (paragraph 71 ). The material placed before parliament when introducing the cap did not raise the effect on the disabled of loss of family carers, and so the discriminatory effect had not been considered (paragraph 66-69). The judge held that 'the failure to exempt at least individual family carers is not lawful because it amounts to indirect discrimination which is not objectively justifiable' (paragraph 74).

Comment from CPAG

The decision has not been appealed. As such, it is binding on decision makers and tribunals. The court did not actually quash the regulations, but arguably continued application of the cap unamended is wrong. The government has indeed promised amendments to the Welfare Reform and Pensions Bill to exempt all recipients of CA from the cap in the future; but that still leaves the question of protection for those current recipients affected by this decision.

Summary

This decision of the Scottish Court of Session dismisses as incompetent the appeal of the Secretary of State against that in the Upper Tribunal of Judge Sir Crispin Agnew of Lochnaw Bt QC in SSWP v YB [2014] UKUT 80 (AAC) (Bulletin 239, p11). As a result, the Court did not consider any substantive issue of law, and the decision in SSWP v YB stands.

The Secretary of State's appeal was dismissed as 'incompetent' as the Court considered it was not made 'on a point of law arising from a decision made by the Upper Tribunal', as required by section 13 of the Tribunal, Courts and Enforcement Act 2007, and therefore there was no jurisdiction to consider the appeal. The Secretary of State was seeking to challenge the conclusion in YB that regulation 12(1 A) of the Social Security (Disability Living Allowance) Regulations 1991 No.2890 was ultra vires (as discriminatory and incapable of objective and reasonable justification, in not providing for an outdoors test of visual acuity regarding the high rate of the mobility component). But, held the Court, Judge Agnew had decided the appeal applying regulation 12(1 A), and his views on the vi res of the regulation 'formed no part of the reasoning which led him to that decision'. The Secretary of State's appeal therefore did not 'arise' from the 'decision' (paragraph 47).

Comment from CPAG

This decision leaves the decision in SSWP v YB intact. That decision itself left regulation 12(1 A) intact, albeit that Judge Agnew clearly felt that the 'Snellen scale' applied by the regulation discriminated against those whose visual impairment was outdoors rather than indoors. The Court of Session was told that if the Secretary of State's appeal was not permitted to go forward then 'he will feel bound by the Upper Tribunal Judge's expression of view as to the vires of the regulation.' The Court commented that 'how the appellant chooses to act is a matter for him.' In subsequent guidance (Memo DMG 28/15), the DWP has decided simply to continue to apply regulation 12(1 A) without amendment.

Decision in brief

‘Social support’ is not limited to support provided by persons with particular training or expertise or which is provided professionally – can be satisfied on basis of support provided by family or friends – definition in the rules is that ‘social support’ means support ‘from a person trained or experienced in assisting people to engage in social situations’ – the necessary ‘experience’ may be derived simply from someone assisting an individual close to him or her

Decision in brief

Descriptors 4(a) and (b) ability to pick up and move a ‘carton full of liquid’ – test refers to a carton that is closed not open, therefore spilling in the act of picking up and moving not relevant – descriptor 5(d) ‘cannot single-handedly use a suitable keyboard or mouse' – ability to use an iPad is not the same as ability to use a keyboard or mouse – tribunal needed to explain why it considered ability to use an iPad meant 5(d) did not apply

Decision in brief

Whether subsequent use of evidence by tribunal rendered its decision unlawful – tribunals are not bound by the strict law of evidence and can admit all relevant evidence – it may nevertheless be important for a tribunal to decide whether evidence was lawfully obtained – it if was, prospect of exclusion by the tribunal on grounds that it would be unfair to admit it is minimal – it was open to the tribunal to accept evidence from the presenting officer that authorisation had been obtained

Summary

The claimant lost his appeal for a higher award of personal independence payment than that which he had been awarded. In its decision, the tribunal appeared to adopt the medical evidence of the DWP healthcare professional, and did not deal with the points made by the claimant’s representative.

Judge Gray allowed the claimant’s further appeal and remitted the case to a new tribunal, holding that the tribunal had erred in giving inadequate reasons for its decision. The judge made a number of comments about the weighing of DWP medical evidence, in particular with regard to where that conflicted with the evidence of the claimant. The Secretary of State had suggested that the chief reason for the tribunal's adopting the medical report of the healthcare professional was that it was the only medical evidence available and that, all else being equal, it was not unreasonable to prefer ‘expert’ evidence to lay evidence. Judge Gray commented, ‘To the extent that this statement appears to suggest that there is a rule of thumb, even if not a rule of law, that expert evidence should generally be preferred to the evidence of an appellant I disagree’ (paragraph 20). She cited with approval the words of Judge Ovey in paragraph 24 of CW v SSWP [2011] UKUT 386 (AAC): ‘…there is no general rule that where there is a difference between the evidence of a medical professional producing reports for the use of the Department for Work and Pensions in making decisions as to social security benefits and the evidence of a claimant, the evidence of the medical professional should be preferred.’

Judge Gray went on to hold, ‘Whilst evidence of expert opinion may be of value, a tribunal is entitled to accept the uncorroborated evidence of an appellant as to their functional impairment and the extent of it rather than the evidence of a healthcare professional which may come to a very different view as to the probable extent of functional difficulty. Were that not to be so, an appellant in a case such as this where the Secretary of State routinely obtains evidence from a healthcare professional, could never win.' It remained open to the tribunal to prefer the healthcare professional’s opinion because of its expertise, ‘but a formulaic acceptance of the report of an examining medical practitioner, without consideration of the evidence as a whole, will be an error of law (CIB/3074/2003)’ (paragraph 21).

Comment from CPAG

The judge’s comments are a reassertion of previous caselaw authority to the effect that tribunals must weigh evidence on its own merits and, when adopting a particular source of evidence, explain what those merits are. It is somewhat depressing that some First-tier Tribunals evidently still struggle to apply such authority. Given that they do, the judge’s words are a helpfully clear reminder of the correct approach.

Summary

The claimant was refused personal independence payment. The DWP took six months to make a decision when the claimant requested a mandatory reconsideration, and in total there was a gap of 10 months been the claimant’s initial decision and his First-tier Tribunal hearing. The claimant had mental health problems and took ‘potent’ medication for that. His condition had deteriorated by the time of his tribunal hearing. The tribunal proceeded without obtaining reliable evidence of the claimant’s condition at the time of his appeal or offering him the opportunity of an adjournment to seek representation.

Judge Mitchell allowed the claimant's further appeal and remitted the case to a new tribunal. The tribunal had erred in not turning its mind to whether the claimant had a reasonable opportunity to present his case and, if he had not, what needed to be done to allow that. In not so doing, it had failed to ensure that there was an ‘equality of arms’ between the parties to the appeal, so breaching the right to a fair trial at Article 6(1) of the European Convention on Human Rights (paragraphs 5 and 7). Among the relevant features of the case here were that the claimant’s condition had deteriorated since the decision under appeal so that evidence of his functioning at the date of the hearing would not necessarily assist his case, and that ‘the other party had delayed initiating the appeal proceedings for six months so that it may thereby have improved its chances of success’, while reducing those of the claimant (paragraph 6).

Comment from CPAG

This decision is authority that long delays in making a mandatory reconsideration may require a tribunal to pay extra attention to a possible need for more evidence or for the claimant to be represented. However, such delays will not inevitably result in such issues in every case. Much will depend on other relevant facts – eg, whether the claimant’s condition has changed since the decision under appeal, what more recent evidence is available and whether the claimant is represented.

Summary

The claimant had mental health problems. She appealed against a decision that she failed the work capability assessment. She indicated that she did not want an oral hearing as she did not want to go out due to her mental health problems, and could not afford to get a ‘medical letter’. The tribunal went ahead without a hearing. It noted that the claimant could not afford to get a letter but that it already had relevant medical evidence, and attempted to get a copy of a letter from the claimant’s GP about a previous appeal, but it was not available. The tribunal dismissed the appeal.

Judge Jacobs held that the tribunal did not err in law. He considered a number of arguments regarding how tribunal should take account of a claimant’s mental health problems when deciding whether to hold a hearing. All parties at the hearing before the Upper Tribunal accepted that the duty to make reasonable adjustments under section 29 of the Equality Act 2010 does not apply to First-tier Tribunals (as there was a specific exemption regarding judicial functions). Insofar as it holds otherwise, DC v SSWP [2014] UKUT 218 (AAC) should not be followed (paragraphs 9–10).

However, a tribunal is under a duty to take mental health problems into account when applying the ‘overriding objective’ to deal with a case ‘fairly and justly’, as required by rule 2 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, SI No.2685. On the facts of this case, the claimant had clearly indicated that she did not wish an oral hearing. It was beyond dispute that a telephone hearing was permissible, as is made clear by rule 1(3) (paragraph 29). The only previous decisions before the Upper Tribunal in which this has previously been considered (eg, SW v SSWP [2015] UKUT 319) (AAC)) were ones in which the claimants had raised the possibility themselves. It would be unrealistic to expect claimants always to do that unless they were notified of that possibility by the tribunal (paragraphs 29–30). The application of the overriding objective has to be ‘proportionate’. In this case, the tribunal’s reasons for proceeding were anything but formulaic and reflected that a proportionate amount of time had been devoted to the question of whether to hold one. Offering a telephone hearing was one possibility but, taking all the information the tribunal had into account in this case, that was not necessary in order to deal with the case fairly (paragraphs 32–36).