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Decision in brief

On return to the UK, the British national confers a right to reside on the family member, irrespective of whether the British national continues to be a worker (or otherwise is a ‘qualified person’ under the right to reside rules) in the UK – regulation 9 of the Immigration (European Economic Area) Regulations 2016 to be construed in light of the decision of the European Court of Justice in C-291/05 Minister voor Vremdelingenzaken en Integratie v RNG Eind [2008] 2 CMLR 1.

Decision in brief

The First-tier Tribunal applied the wrong legal test – both the HMRC submission and the HMRC guidance on which it was based got the relevant law wrong – First-tier Tribunals may need to examine with caution appeal responses put before them by HMRC in right to reside cases and satisfy themselves that HMRC has engaged in proper evidence gathering.

Decision in brief

First-tier Tribunal may have wrongly assumed that claimant declined opportunity to put the evidence from her previous DLA award into consideration – tribunal erred in not probing further and/or in not explaining why it did not call for the DLA evidence – tribunal should probe as to whether what DWP said in GD v SSWP (PIP) [2017] UKUT 415 (AAC) about its practice of asking claimants if they want the DLA evidence to be used has in fact been followed.

Summary

SK came to the UK as an asylum seeker in 2015 with her then three year old son (a ‘pre-flight’ child). In 2017 (by which time she had been granted refugee status), she claimed a Sure Start maternity grant while pregnant with her daughter. LL had been the carer of her nephew under a residence order since he was 18-months-old. She became pregnant with her first child and claimed a maternity grant. Both claims were refused (and had appeals rejected by the First-tier Tribunal), as they fell foul of the provision in regulation 5A of the Sure Start Maternity the Social Fund Maternity and Funeral Expenses (General) Regulations 2005 No. 3061 (‘the 2005 Regulations’) that a claimant will not be eligible if there is another child aged under 16 in the family for whom s/he is responsible (the ‘first child only rule’).

Judge Church allowed the claimants’ further appeals and substituted decisions that they were entitled to a Sure Start maternity grant. He held that regulation 5A of the 2005 Regulations discriminated against them, contrary to Article 14 read with Article 8 and Article 1 of Protocol 1 of the European Convention on Human Rights. Also, as conceded by the Secretary of State (regarding LL), ‘regulation 5A of the 2005 Regulations also unlawfully discriminates against those having their first biological child while already responsible for a child who came into their care after reaching 12 months old contrary to Article 14 read with A1P1 of the Convention’ (paragraph 152). The claimants had (unlawfully) been treated by the rules in the same way as other people having a second child, despite the fact that their situation was, in a relevant way, different (because in each case the people in these groups were highly unlikely to already have baby items). The judge considered whether this was capable of justification, as not manifestly without reasonable foundation’. It was not justified. Reviewing the evidence and witness statements, the judge concluded:

'Excluding such claimants from eligibility does not further the legitimate aim of targeting the [Sure Start maternity grant] at the families who need it most. Rather, it denies claimants who are likely to be among those the most in need of such support. It is therefore not merely a disproportionate way of achieving the stated objective, but an inappropriate measure which defeats the stated objective.’ (paragraph 149)

In each of these cases, it was appropriate to remake the decision as the First-tier Tribunal should have made it. Applying section 6(1) of the Human Rights Act 1998, the judge disapplied the offending provision in the 2005 Regulations (as amended) (paragraph 155).

Summary

The claimant was a severely disabled adult with learning disabilities in receipt of DLA. He did not report to the DWP his admission to hospital. When the Department became aware of the hospitalisation, a decision was made that he had been overpaid DLA on the basis that (per regulations 8 and 12A of the Social Security (Disability Living Allowance) Regulations 1991 No.2890 (‘the DLA Regulations’) neither component of DLA is payable after a cumulative 28 days have been spent as an inpatient in a publicly-funded hospital. The claimant argued that this restriction was unlawful as in breach of his human rights as a disabled adult, in that it was in breach of Article 14 (prohibition of discrimination) read with Article 1 of Protocol 1 of the European Convention on Human Rights.

Judge Ward dismissed the claimant’s appeal. The difference in treatment in the rule between severely disabled adults in hospital and severely disabled children in hospital was justified. Following the decision of the Supreme Court in Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47, restriction of DLA in hospital was unlawful and the regulations were changed so as to remove the restriction on children but retain it in adults. The judge considered that this difference in treatment was not unlawful as it was not – to apply the correct test for justification – ‘manifestly without reasonable foundation’ (paragraph 31).

The judge considered that, ‘by contrast with the position in Mathieson by the time it reached the Supreme Court, there is (a) evidence from the DWP about how the system is intended to operate where adults with learning disabilities are in hospital and (b) a lack of evidence on the claimant’s side to cast doubt on it’ (paragraph 20). He was not satisfied that, in general, family members were required to assist in proving care to a person with learning disabilities who was in hospital. Their experience of the person ‘may well be a valuable resource for medical and nursing staff’ and they may wish to attend to support the patient, ‘but that does not make out an equivalent situation to that which prevailed in Mathieson’ (paragraph 21). Having reviewed the evidence and taken witness statements, the judge concluded that ‘that there is no evidence that the NHS would require carer input to the care of a patient with severe learning disabilities of the extent claimed, or anything like it, and even where the person has a Deputy appointed. The basic rationale for the rule is the avoidance of double provision from public funds for the same contingency. On the evidence in this case the needs of the patient are being met by the NHS and the Secretary of State is entitled to have drawn the line where she did.’ (paragraph 31).

Summary

This is the decision of the Court of Appeal on the appeal of the Secretary of State against the decision of the High Court in this case. The High Court had held that where (due, for example, to the normal payday falling on a weekend or bank holiday) a claimant paid monthly received a ‘double payment’ of wages in one UC monthly assessment period, existing rules allowed the wages to be attributed to successive assessment periods. This was rather than (as per the Secretary of State’s approach) the single assessment period in which they were actually received. The Court of Appeal agreed with the Secretary of State that the rules required the double payment to be attributed to the single assessment period in which they were received. However, in a unanimous decision the Court nevertheless allowed the claimants’ application for judicial review on the basis that the failure of the Secretary of State to provide for alternative arrangements was so irrational as to be unlawful.

The issue arose because, under regulation 54 of the Universal Credit Regulations 2013 No.376, earned income for any given UC monthly assessment period is to be ‘based on the actual amounts received in that period’. Where a claimant is usually paid on a particular day each month (eg, the last day of the month) s/he may in fact be paid on a different day if that day falls on, for example, a weekend or bank holiday, resulting in the possibility of a ‘double’ payment of wages in the same assessment period if the claimant’s pay date and assessment period start and end dates fall around the same time (and so possibly lose entitlement to UC completely). Giving the lead judgment for the Court, Lady Justice Rose agreed with the Secretary of State that the High Court had wrongly construed regulation 54 as meaning that double payments could be attributed to successive assessment periods rather than the single assessment period in which they were received. In the context of the purpose of the regulation and the provisions in other regulations, in particular regulation 55, such an interpretation was too wide (paragraphs 35–45).

However, the Court nevertheless held that the attribution of double payments to a single assessment period was unlawful. The claimants had correctly focussed, in their own arguments to the High Court, on the irrationality of such treatment. The initial and ongoing failure of the Secretary of State to avoid an arbitrary outcome by making further rules was at the basis of this irrationality. In considering irrationality, the focus in this case was to consider if whether a ‘reasonable balance’ had been struck, or rather whether it was possible to say that no ‘reasonable’ Secretary of State would have struck the balance in the way that had been done (paragraph 50). Having considered the evidence, which included that a ‘very substantial’ number of claimants were likely to conclude with the claimants that, given pay day fluctuations, it would in many ways be preferable not to work so as to ensure a regularity of UC entitlement, Lady Justice Rose said:

‘The threshold for establishing irrationality is very high, but it is not insuperable. This case is, in my judgment, one of the rare instances where the SSWP’s refusal to put in place a solution to this very specific problem is so irrational that I have concluded that the threshold is met because no reasonable SSWP would have struck the balance in that way’ (paragraph 107). 

The claimants’ application for judicial review should therefore succeed on grounds of irrationality. A declaration was made to this effect and the Secretary of State was to consider what changes should be made.

Comment from CPAG

Subsequently, the Secretary of State has said that she does not intend to appeal against this decision and will consider what adjustments to the rules should be made. The Court did not think it necessary to consider an alternative argument of the claimants that (as monthly paid workers) they had been discriminated against, in breach of Article 14 of the European Convention on Human Rights. For more, see the article on p4 of Bulletin 277.

Summary

In this judicial review decision, the High Court rejected arguments that rules preventing new PC claims by most ‘mixed-age’ couples (ie, where one has reached state pension age but the other has not), instead necessitating a claim for UC, were unlawful. The claimants argued that the rules were unlawful by way either of a breach of the Secretary of State’s equality duties under the Equality Act 2010, or by way of a breach of their human rights as a mixed-age couple with disabilities under the Human Rights Act 1998.

The claimants were already on UC. Both were disabled. The female received carer’s allowance for caring for the male. No conditionality was applied to either of them as part of the UC claim. The male was due to reach pension age in July 2020. The female was not due to reach pension age until July 2026. Under rules introduced for such mixed-age couples, the couple would be obliged from July 2020 until July 2026 to remain on UC, and could not choose instead to move to a new claim PC in July 2020. Their challenge was to the Welfare Reform Act (Commencement No.31 and Savings and Transitional Provisions and Commencement No.21 and 23 and Transitional and Transitory Provisions (Amendment)) Order 2019 No.37. That was the rule that brought into effect the provision, in primary legislation, in section 4(1A) of the State Pension Credit Act 2002, barring mixed-age couples from entitlement to PC. Overall, the effect was to prevent new claims for PC from mixed-aged couples (but not to terminate existing PC awards).

Regarding the alleged breach of Equality Act duties, the claimants argued that the effect that male pensioners in mixed-aged couples would never be able to qualify for PC were ignored, and that the substantial impact on mixed-aged couples with disabilities had not been assessed. In the High Court, Mrs Justice Elisabeth Laing rejected that, holding that parliamentary debates and policy documents showed that the Secretary of State and parliament were well aware of the effects complained of when making the rules. The Secretary of State had ‘the regard which was due’ to the listed equality needs (paragraphs 125–126). Regarding the alleged breach of the Human Rights Act, that was under Article 14 (read together with Article 1 of Protocol 1) of the European Convention on Human Rights, the judge rejected that, on the ground that any difference in treatment (be it on grounds of sex or disability) was justified as being not ‘manifestly without reasonable foundation’. She accepted the Secretary of State’s argument that disabled people and carers were not, in an unlawful way, treated in the same way as other claimants ‘because sums are paid under UC to help disabled people and carers’ (paragraph 30). More widely, in a ‘no-conditionality’ mixed-age couple, the structure of UC provides advantageous possibilities of help finding work for the under-pension-age carer able, as in this case, to take a ‘mini-job’, and provided components for the disabled and carers. The claimants had suffered ‘only a notional, not an actual’ loss of benefit and, to the extent that this was relevant to the question of justification, the Secretary of State and her officials had been aware of the ‘size of the hit’ throughout (paragraphs 128–135).

Summary

This is the decision of the Court of Appeal against the decision of the Upper Tribunal in GK v SSWP (CA) [2019] UKUT 87 (AAC) (20 March 2019). There, Judge Jacobs had held that the claimant, who was habitually resident but not working in Cyprus at the time of his claim for carer’s allowance (CA), was not entitled to the benefit as the competent state for benefit was Cyprus not the UK. The fact that the person he cared for was entitled to UK attendance allowance (AA) did not alter that conclusion.

The Court unanimously upheld the substantive decision of the Upper Tribunal and so rejected the claimant’s further appeal. The competent state was, on the facts of this case (ie, which included that the claimant was not working), the member state of residence (ie, Cyprus, under Article 11(2)(e) of regulation (EC) 883/04). It was not, as argued for the claimant (via his entitlement to UK state pension), the UK under Article 21, which provides for cash benefits for an ‘insured person’ residing or staying in a member state other than the competent member state. In this case, the competent state, as determined by Article 11, was Cyprus and that was also the state of residence. The claimant was not an ‘insured person’ for the purpose of Article 21, there were material differences between the facts and legislation in this case and that in Tolley v Secretary of State for Work and Pensions (Case C-430/15) [2017] 1 WLR1201, and this case did not involve the ‘export’ of a benefit already acquired in the UK (paragraphs 36–45).

The claimant’s alternative ground, that AA and CA were so closely related as to mean that the competent state for the former must be the competent state for the latter, was not well founded. Although undoubtedly closely related, they were separate benefits with separate rules claimed by different people (paragraphs 52–53).

Decision in brief

Regulation 7 of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006, No.214 – day of leaving the UK counts as a day of absence but the day of return to the UK does not – on the facts, the claimant exceeded the permitted maximum period of absence by one day and so lost entitlement.

Decision in brief

Receipt of medical evidence from a healthcare professional is a ground for supersession – but that did not prove the factual basis for the supersession (ie, the decision to alter the award) – tribunal should not have merely found the factual basis to have been inadequate – should have gone on to consider what decision should have been made including the expiry date of the award.