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Summary

The claimant had Parkinson’s disease, and was awarded DLA in 2010. In 2013, following a fraud investigation, the award was revised and a decision (the ‘entitlement decision’) that the claimant had not been entitled to DLA at all substituted. Shortly after, another decision (the ‘overpayment decision’) said that in the light of the entitlement decision, the claimant had been overpaid and that (as it had been caused by the claimant’s misrepresentation of a material fact) the overpayment was recoverable from him. The claimant appealed against the entitlement decision, but the tribunal treated that as against the overpayment decision too. However, the tribunal dismissed the claimant’s appeal.

Judge Poynter allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred in failing to consider whether there was a legitimate ground for revising the original award. It, therefore, failed to address the legal questions that the law required it to answer before it could properly uphold the Secretary of State’s decision (paragraphs 20–23).

In this case, revision was the requisite ground for changing the original award. The relevant rule was at regulation 3 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 No.991. On the facts of this case, it was too late for a revision within one month. That left revisions which may be carried out at any time on specified grounds, as provided for by regulation 3(5). As the judge pointed out, the ‘official error’ ground at subparagraph (5)(a) was not relevant (as that requires that there have been no contribution from the claimant, whereas the Secretary of State’s case was that the claimant actually caused the overpayment); that left grounds relating to ‘ignorance of or mistake about a material fact’ (paragraphs 13–16). Further, as this case concerned a ‘disability determination’ (ie, whether the disability grounds for DLA were satisfied) it was required under regulation 3(5)(c) to be shown that ‘the claimant knew or could reasonably have been expected to know of the fact in question and that it was relevant to the decision’. Unless that applied, there were no grounds for revision under regulation 3(5)(c) at all, and hence in this case no overpayment (ie, because the original award could not be changed) (paragraphs 17–22). As the tribunal had not considered that, there was no ground for upholding the decision under appeal; however the judge considered that that question, and the question of whether the claimant met the disability conditions for DLA when he first claimed, should be considered by a new tribunal.

Summary

The claimant’s son had been diagnosed with ‘high-functioning autism/Asperger’s syndrome’. He attended school until age 18, but after he turned 18 the local authority agreed to cover the cost of a home learning programme, under which the son worked at home with an information technology tutor for five hours a day, five days a week, for 39 weeks a year. HMRC decided that this was not ‘approved education’ for child benefit purposes and terminated the claimant’s entitlement. Her appeal was refused by the First-tier Tribunal.

Judge Levenson allowed the claimant’s appeal and substituted a decision that the claimant was entitled to child benefit. The relevant rule breached human rights law as it unlawfully discriminated against the claimant as the parent of a child with special educational needs who required a home education programme after the age of 16 (paragraph 15(i)). The relevant rule was at regulation 3(2)(a) of the Child Benefit (General) Regulations 2006, SI No.223. That requires that to count as a ‘qualifying young person’ for child benefit, the young person must be in full-time non-advanced education either at school or college or elsewhere but ‘approved by the Commissioners’. However, under subparagraph (3), a person cannot be a qualifying young person other than at school or college unless that had started before s/he turned 16. Thus, on the facts of this case, the regulation prevented the claimant from being entitled.

That was, held the judge, in breach of the provisions of the European Convention on Human Rights preventing discrimination regarding property (Article 14 read with Protocol 1 of Article 1). Where, agreed the judge, there is a statement of special educational needs and a programme of education has been specifically assessed by the local authority as being suitable, there was no difference between people who had required such a programme to start before their 16th birthday and those who required it to start after their 16th birthday, and the difference in treatment could not be justified (paragraph 15(j) and (k)). The judge assumed that consideration will now be given to amending the regulations (paragraph 16).

Decision in brief

The time limit applies to the supervision/ prompting/assistance, not to the therapy (paragraph 25) – no rule that states that because a claimant’s problems create limits within one descriptor, they cannot also be assessed as creating limits within another descriptor – PE v SSWP [2015] UKUT 309 (AAC) approved (paragraph 28)

Note from CPAG

Judge Williams, who made this decision, took the same approach to descriptor 3(f), a case involving kidney dialysis, in HH v SSWP [2015] UKUT 558 (AAC) (16 October 2015) (file number CPIP/1290/2015). There he also observed, on the facts, that the claimant was able to manage his dialysis without supervision, prompting or assistance, in which case the descriptor did not apply.

Decision in brief

Context of test is the function of 'identifying those who cannot reasonably be expected to work' and so test refers to a person 'being oriented towards a workstation, whether sitting or standing, in such a manner that they may fairly be described as capable of performing a job of work' - if a person needs to sit with a rigidly outstretched leg so that they cannot fairly be said to be capable of doing a job of work at a workstation, this does not amount to remaining sat 'at a work station'

Decision in brief

Supervision monitoring the claimant's condition in case of an attack and before any therapy is administered is not within 3(c)-(f) (SSWP v AN applied) - 'until there is therapy, there can be no supervision to manage it' - but risk to claimant giving rise to a need for supervision could apply in a number of activities need not be a risk that is unique to a particular activity- 'It is sufficient if it is a general risk, even one that applies when the claimant is doing nothing, provided that the requirements of a particular descriptor are satisfied'

Decision in brief

Claimant lost entitlement to the mobility component when he went to live in France and attempted to reclaim it when he returned to live in Great Britain, aged 68- DLA mobility component is a 'special non-contributory benefit' under EU law and entitlement was therefore correctly decided under domestic law, which includes the age 65 cut-off rule - in any case there was nothing intrinsic to the age 65 cut-off rule which is liable to inhibit free movement

Summary

The claimant was (according to the local authority) sent decisions about his entitlement to council tax benefit in May 2012. The claimant said he never received them, and only became aware of them in September 2013. At that point he attempted to appeal against them, but the local authority said they were made outside the absolute time limit for appeals of 13 months, and passed it to the First-tier Tribunal. The tribunal decided, without further recourse to the parties, to strike out the appeal for being out of time. The tribunal said there was sufficient evidence to show that the claimant had been sent the decisions, and given that, the question of whether he had actually received them was immaterial.

Judge Hemingway held that, on the facts of the case, the tribunal had erred in not getting further oral evidence from the claimant before deciding whether to strike the appeal out, and so remitted the case to a new tribunal. The judge did not dispute that that, under rule 23(5) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 No.2685, no appeal may be made more than 12 months after the normal one-month time limit. Neither did he dispute that what was crucial was whether the claimant was sent the decisions. However, in this case the claimant’s oral evidence would have been relevant to the question of whether it was an exceptional case, such that Article 6 of the European Convention on Human Rights (right to a fair trial) required the exercise of discretion to accept the appeal beyond the absolute time limit (paragraph 14). The local authority and tribunal were both wrong to consider there was no such discretion. In Adesina v Nursing and Midwifery Council [2013] EWCA 818, the Court of Appeal held that Article 6 required the application of discretion to such an absolute time limit so as to achieve the minimum necessary required for compliance with the Convention (paragraph 15).

In Adesina, noted the judge, it was also held that in effect such discretion would arise only in exceptional circumstances and where an appellant had done everything they could to make the appeal within time. A number of subsequent decisions had illustrated ‘how sparingly the discretion should be exercised’, but the discretion is there (paragraph 15). On the facts of this case, the claimant’s oral evidence about non-receipt of the decisions might have been relevant to whether or not to strike out the appeal, in that it might have supported the proposition that the decisions had in fact not been sent, and also might have shown whether he had been otherwise unaware that the decisions had been made and whether he had acted promptly once he was aware (paragraph 14).

Comment from CPAG

This decision is not authority for an argument that the 13-month time limit is not ‘absolute’ in most cases. Satisfying at least that time limit remains vital in most cases. The decision is authority that discretion to admit an appeal made outside that time limit should be considered in ‘exceptional circumstances’. Even then, the judge did not go so far as to say that this was such a case; rather that the tribunal should have taken oral evidence before considering whether or not to exercise such discretion.

Summary

The claimant was entitled to disability living allowance lower rate mobility component and middle rate care component. When she renewed the claim, the award was reduced to one of lower rate mobility component only, and after mandatory reconsideration the claimant appealed. She indicated that she wished the appeal to be heard ‘on the papers’ ( ie, without an oral hearing), but also that that was because she did not feel she could attend the tribunal venue in person because she had panic attacks and did not like going to strange places. A GP report in the papers confirmed her severe agoraphobia and indicated (to the DWP) that a home visit may be better than making an appointment. The tribunal held a ‘paper hearing’ (ie, made a decision without an oral hearing), on the basis that it considered it had sufficient evidence to make a decision, and rejected the claimant’s appeal.

Judge Hemingway allowed the claimant’s further appeal and remitted the case to a new tribunal, with a direction to hold an oral hearing with the claimant given a reasonable opportunity to attend – eg, by considering holding a domiciliary hearing or one at a location familiar to the claimant. In so deciding, he endorsed the submission of the Secretary of State that the claimant had clearly indicated that she wished to take part in the proceedings but did not feel able to because of her mental health problems, and the tribunal should have considered adjourning and also that the claimant might be a ‘sensitive witness’ with particular consideration given to how to facilitate her/his giving evidence.

Specifically, the tribunal erred in not taking into account the appellant’s wish to participate in the proceedings but for her illness. It also did not appear to consider alternative ways of proceeding – eg, a domiciliary hearing or a hearing at a location familiar to the claimant, or an adjournment to allow her participation by telephone. Further, the tribunal did not consider the possibility that the claimant might fall within the definition of a ‘sensitive witness’ such that it would be appropriate to consider possibilities such as evidence being given by telephone or video link or other means. Finally, it gave undue prominence to its view that it had sufficient evidence to proceed. That did not of itself mean that proceeding on the papers was fair and just, or that other factors in rule 2 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 No.2685 had been properly taken into account (paragraphs 13–14).

Comment from CPAG

This decision is a helpful reminder that the mere fact that a tribunal feels able to proceed without a claimant’s presence is not necessarily sufficient: a claimant who wants to participate should be facilitated to do so, whatever the tribunal thinks about what it already has in the appeal papers.

Summary

The claimant was living and working in Britain, but his wife and children were in Poland. Although it was accepted that under European law the children counted as his family members, he was held not to be entitled to child benefit for them as they were not living with him and it was considered unlikely that he was contributing to the cost of providing for them. That decision was upheld by the First-tier Tribunal.

Judge Ward allowed the claimant's appeal and substituted a decision that, based on the facts and evidence, the claimant was contributing to the cost of providing for the children. That evidence included bank statements from a period later than that at issue in the appeal, and that the claimant transferred money using an online payment system as well as by other means. The First-tier Tribunal had erred in giving a ‘bald assertion’ that the claimant’s income was insufficient to make the payments he should be making towards the upkeep of the children, without analysing the evidence submitted by the claimant. Judge Ward’s analysis showed that the claimant’s earned income would have accommodated a weekly payment of a sufficient level (paragraph 24).The tribunal had also erred in deciding that his living costs would not allow adequate expenditure on his children while not realising that the claimant’s statement as to his expenditure on living costs was for joint living costs – ie, including those incurred by his partner in Poland (paragraph 21). It was permitted to take account of evidence of earnings that post-dated the date of the decision; but the tribunal had overlooked the evidence of the amounts leaving the claimant’s bank account and being sent to Poland to support his family (paragraph 22).

Also, the judge rejected an argument by HMRC that, even though the claimant was sending sufficient money overall, the claimant was not making weekly payments at the required rate, and so did not count as making adequate provision. The judge did not read section 143(1)(b) of the Social Security Contributions and Benefits Act 1992 as requiring the making of weekly payments, holding that, ‘It matters not whether the contribution is made monthly or fortnightly or even more sporadically and unpredictably than that. As long as there is evidence of contributions at the relevant child benefit rate towards the upkeep/cost of a child or children during the period under scrutiny, the statutory test will be satisfied’ (paragraph 32).

Summary

The claimant had been entitled to PC including the severe disability premium (SDP) since 2004. Although she lived with her son and daughter-in-law, their presence was ignored for SDP purposes as the son was regarded as a ‘co-owner’ of the house. In 2006 the property was transferred into the son’s sole name, albeit with a deed of trust drawn up so that the claimant remained entitled to half the net profit of any sale. When the DWP discovered this in 2011, it issued a decision that there was no longer a ‘co-owner’ and so the claimant had been overpaid the SDP. The First-tier Tribunal held that the claimant remained a co-owner of the property by virtue of the deed of trust, and had not been overpaid.

Judge Mark held that the tribunal had not erred in law. Although the son had become the sole legal owner of the property, in the PC rules ‘co-owner’ had a wide meaning and was not confined to legal, as opposed to beneficial, ownership. The tribunal had correctly distinguished R(H) 7/05 on the definition of ‘owner’ in the housing benefit regulations, found that in the ordinary sense of the word ‘co-owner’ the claimant continued to own part of her home as under the PC rules the claimant remained a ‘co-owner’ (paragraphs 7–9).

Construing the term ‘co-owner’ in the State Pension Credit Regulations 2002 No.1792, Judge Mark held that the word was intended to have a wide meaning, not confined to legal ownership, and that on the facts of this case the claimant remained entitled to be considered a co-owner in the ordinary use of that word (paragraphs 13–14).

Decision in brief

Claimant who cannot leave the house without another person satisfies the descriptors – although other descriptors in Activity 1 specify a mental health element, no such requirement in 1(d or (f) – not limited to ability to navigate when on the journey – ‘extraordinary’ if someone who was permanently housebound scored fewer points than someone sometimes able to go out – ‘cannot’ is the significant word in the descriptors, not ‘follow’

Note from CPAG

See the contrasting DA v SSWP, and the article in Bulletin 249, p4.

Decision in brief

Claimant who because of anxiety requires help with reassurance and encouragement – does not satisfy the descriptor as it ‘deals with navigation and excludes dealing with other difficulties that may be encountered along the way’ – ‘following’ the route is the subject of the descriptor – that is the natural meaning of the words in the descriptor, and is in contrast to some others in Activity 1, which deal with inability to embark on or complete a journey, but not following its route

Note

See the contrasting RC v SSWP, and the article in Bulletin 249, p4.