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Decision in brief

Scope of the definition of vulnerable adult is such that it will apply to most appellants in personal independence payment, employment and support allowance and industrial injuries appeals – in this case, claimant had autistic spectrum disorder and tribunal should have considered the Direction – but in many cases will not be a material error of law not to follow the Direction, as usual tribunal procedures will be effective – whether a failure or not will depend on the facts of the case, and tribunals should consider as part of the usual previewing of a case whether special arrangements, such as avoiding normally acceptable robust questioning, should apply – representatives should alert the tribunal to any specific arrangements considered desirable.

Note from CPAG

See article in Bulletin 272, p7.

Decision in brief

Effect of Lounes v Secretary of State for the Home Department (C-165/16) [2018] 3 WLR 375 – a dependent EEA family member of a dual national can (as can a third-country national) derive a right of reside from dual national where the dual national has exercised European Union Treaty rights in the host member state (eg, UK) prior to acquiring the citizenship of that state.

Decision in brief

Use of electric fan heater, hair dryer or tap to warm hands and allow wiping after defecating – tribunal erred in not considering whether use of these items constituted an aid so as to allow scoring for ‘need to use an aid or appliance to manage toilet needs or incontinence’ – in principle, they might be aids as an aid does not have to be specifically made for the purpose of overcoming a limitation (CW v SSWP (PIP) [2016] UKUT 197 (AAC) cited).

Decision in brief

Polish claimant self-employed as a cleaner, working six or seven hours a week and earning below the national insurance (NI) contribution threshold – claimant was ‘gainfully employed’ and so (under Article 11 of Regulation EC No.883/2004) UK was the competent state for carer’s allowance – section 2 of the Social Security Contributions and Benefits Act 1992 does not provide that a claimant has to be liable for NI contributions in order to be gainfully self-employed.

Decision in brief

It was correct that the mere fact of a diagnosis of hand arm vibration syndrome (HAVS) did not necessarily bring the claimant within PDA11 – but a tribunal must make adequate findings and give adequate reasons for holding that a claimant does not meet the statutory criteria – tribunal erred in failing to deal with conflicts in the evidence between the official medical report and other available medical evidence, and the evidence of the claimant, regarding his sensorineural symptoms, which are relevant to PDA11.

Summary

The claimant’s appeal against the decision that he was not entitled to personal independence payment (PIP) was rejected by the First-tier Tribunal. The Secretary of State’s response to the appeal (ie, the appeal papers) had not included a list of the PIP activities and descriptors, contained only one express reference to the legal provisions on which the Secretary of State relied, did not include any copies of legal materials, and contained internet links on which the law for PIP could allegedly be found, but which in fact was to a draft version of the PIP regulations and merely the home page of the official legislation website for everything else.

Judge Poynter held that the tribunal erred by inadvertently breaching its duty to act fairly towards the claimant. He set the decision aside and remitted it to a new tribunal (paragraph 8). The Secretary of State’s response to the tribunal was inadequate. That was partly because if failed to include the PIP activities and descriptors (LH v SSWP (PIP) [2018] UKUT 57 (AC) cited) but also because it referred to draft legislation that was not in the same terms that the tribunal was required to apply. Although the tribunal had applied the correct substantive law, the Secretary of State’s response was not just for the benefit of the tribunal: ‘it also serves the function of informing appellants of the criteria applied to reach the decision and, thereby, the matters that they have to establish if they are to win their appeal’. The response did not do either, and it was not possible for the claimant properly to prepare his case (paragraph 4, citing various paragraphs from the judge’s initial permission to appeal). The tribunal should at the very least have drawn the defects to the claimant’s attention, sought his comments and provided him with any information he might reasonably have requested about the PIP descriptors and assessment (paragraph 6).

The judge noted the Secretary of State’s representative in the Upper Tribunal said that a template was now in use for providing responses in PIP appeals which refers to the law on which the decision has been based and lists the descriptors. The judge hoped that the error in this case would therefore not be repeated in future, although his decision may still be of relevance in appeals already in the system (paragraphs 9 –10).

Comment from CPAG

It should be noted that although the initial problem lay in the (extremely) inadequate response by the Secretary of State, the tribunal itself erred by failing to deal with the claimant fairly in the light of that.

Summary

The claimant was entitled to the housing element as part of his universal credit (UC). His landlord considered (though the claimant did not accept) that he had two months or more of rent arrears. Following an application from his landlord, two decisions were made: firstly, to introduce a third-party deduction for rent arrears from his UC (under Schedule 6 paragraph 7 to the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013 No.380); secondly, to make an alternative payment arrangement (under regulation 58 of those regulations) to pay the housing element direct to his landlord. The claimant first applied for a mandatory reconsideration of those decisions but received no substantive reply. He applied for judicial review on the basis that he had not been given the opportunity to make representations about the changes before they were introduced. As such, the guidance and process for making the reductions was unlawful as it was procedurally unfair and unreasonable, and also in breach of the claimant’s human rights.

Fordham J allowed the claimant’s challenge on the basis that the guidance and process for making the changes was unlawful as procedurally unfair. The ‘minimum standards of procedural fairness on which the common law insists’ required that a UC claimant must be informed that a landlord had requested deductions for arrears and/or direct payment, and ‘must be given an opportunity to make a response before any change to their UC takes effect’ (paragraph 50). The statutory provisions were silent about the process. But the policy guidance used by the DWP amounted to a direction to decision makers that it is unnecessary to give claimants a chance to make representations before such changes were made. The judge was referred to the similar outcome, in the context of deductions from employment and support allowance for utility debts, in R (Timson) v Secretary of State for Work and Pensions [2023] EWCA Civ 656, reported as [2023] PTSR 1616. He agreed that it would be wrong simply to read across the analysis in Timson to the present case; but held that Timson was a ‘working illustration’ of unlawful policy guidance and of a ‘contextual application of procedural unfairness and reasonable enquiry’. Nevertheless, the judge had explicitly analysed the present case with reference to ‘its own particular features’ (paragraphs 60–62).

The judge did not accept that the making of the changes to the claimant’s UC was in breach of public law as a breach of the duty of reasonable enquiry (ie, of the decision maker’s obligation to take such steps to inform themselves as is reasonable, per Secretary of State for Education and Science v Tameside MBC [1976] UKHL 6, reported as [1977] AC 1014), or a violation of the claimant’s property rights under Article 1 of Protocol 1 of the European Convention on Human Rights. This was in the context of his finding that the process was procedurally unfair and therefore unlawful. That was not the same as finding (regarding reasonable enquiry) that it was independently unreasonable or (regarding Article 1 of Protocol 1) that there had been a failure to strike a fair balance in the making of the changes. ‘Overall,’ said the judge, ‘I am content that procedural fairness should have done the heavy lifting in this case, as it often has in public law, and that is the basis on which I decide the case’ (paragraph 70). 

Comment from CPAG

As in Timpson, the effect is that the claimant should have a right to comment on what is proposed, although that is not the same as a simple right of veto. See our article, Erosion – where are we now?

Decision in brief

Claimant had no physical or mental problems preventing her from washing or bathing and did not need prompting or assistance - problem was that her medical condition (trimethylaminuria) meant that she had persistent body odour – applying principles set out in MM and BJ (PIP) [2016] UKUT 490 (AAC), the requirement to be able to carry out an activity ‘to an acceptable standard’ is about the accomplishment of the functional activity, not the result – similarly, medicated soap used by the claimant was not an ‘aid’ required for the activity of washing and bathing – claimant therefore did not score points under Activity 4

Comment from CPAG

The distress caused to the claimant by her condition nevertheless did lead to her scoring sufficient points for the standard rate of the daily living component under Activity 9 (engaging with other people face to face). See also our article: ‘To an acceptable standard’ in PIP

Decision in brief

Claimant had moved out of the property and (as determined by the tribunal) notified the housing benefit section of the local authority, but direct (‘managed’) payments to the landlord continued for some time before the landlord pointed out that the claimant had moved out – tribunal correctly upheld the local authority decision that under regulations 100 and 101(2) of the Housing Benefit Regulations 2006, the consequent ‘official error’ overpayment was recoverable from both the tenant and the landlord, and that the local authority had lawfully decided to recover it only from the landlord – tribunal correctly noted that the decision as to whether and from whom to recover the overpayment is not an appealable decision (R(H) 6/06)

Comment from CPAG

Originally, a three-judge panel of the Upper Tribunal had been convened to consider this case as it had been thought to raise difficult questions concerning the prescribed means of notifying a change of circumstances, but which in the end did not arise. See also, our article: UC and housing costs problems
 

Decision in brief

Claimant was entitled to export her child benefit to Spain, as Article 7 provides for export of cash benefits unless otherwise prevented by the regulation, and no such exception applies to family benefits including child benefit – no evidence that the claimant had applied for, or been awarded, Spanish equivalent to child benefit, so overlapping provisions in Article 68 did not apply.

Decision in brief

Article 17 of Directive EC 2004/38/EC – what was said by the Supreme Court in Secretary of State for Work and Pensions v Gubeladze [2019] UKSC 31 regarding Article 17(1)(a) and the need for factual residence rather than lawful residence also applies to Article 17(1)(b).

Decision in brief

Child with autism needing attention for more than one and a half hours per day – tribunal needed to explain why it did not consider attention for that amount of time was not for a ‘significant portion of the day’ given findings in CDLA/58/1993 and Ramsden v Secretary of State for Work and Pensions [2003] EWCA Civ 32; R(DLA) 2/03 that attention for an hour would reasonably be regarded as a significant portion of the day.