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Decision in brief

ESA does not constitute two benefits – amount a claimant entitled to on conversion must encompass consideration of both the contributory and income-related amount – where the support group criteria are satisfied, it is an official error for the decision-maker (or a decision maker considering a revision of that decision) not to consider entitlement to the enhanced disability premium – no requirement for a conversion process claimant to ‘claim’ either the premium or income-related ESA

Decision in brief

Relevant provision is regulation 31 of the Jobseeker’s Allowance Regulations 1996, SI No.207 – does not mean that claimants who received jobseeker's allowance were wrongly paid – instead, where the proposed agreement is not signed, it must be referred to a decision maker for consideration as to whether it is reasonable

Decision in brief

Claimant cannot challenge direct payment by challenging landlord's title to grant him the tenancy - ie, by alleging an illegal letting - it is well established that so long as the tenant remains in possession undisturbed by any adverse claim, the tenant cannot dispute the landlord's title - facts showed that the tenant was in the requisite eight weeks' or more arrears, and there was no evidence that it was in his overriding interest not to make payments direct to the landlord

Summary

The claimant had Asperger Syndrome and obsessive compulsive disorder. His appeal to the First-tier Tribunal included the question of whether he should score points under Activity 9 for ability to engage with other people face to face. He had moved into supported accommodation following becoming verbally aggressive at home; avoided communal areas and contact with other residents and staff; he did not have friends; was prone to angry verbal outbursts; was unable to develop and build personal relationships; he was a member of a local theatre group and was more comfortable there now that other members were more familiar to him, but that he ‘acted a role’ when having to mix with others.

The tribunal decided that he scored eight points under descriptor 9(d), which applies where the claimant ‘cannot’ engage with others due to such engagement causing either ‘overwhelming psychological distress’ to the claimant or ‘substantial risk of harm’ to the claimant or another person. The Secretary of State argued that was wrong, as the claimant had allegedly engaged fully and appropriately at his medical and at the tribunal hearing, could interact at his drama group, worked in a garage and was planning to go to university.

Dismissing the Secretary of State’s appeal, the judge first noted that rules provided a claimant should be regarded as capable of carrying out an activity only if s/he could do so safely, to an acceptable standard, repeatedly and within a reasonable time period. ‘Repeatedly’ was defined as often as is ‘reasonably required’ (paragraph 4). A descriptor applied if it was satisfied on over 50 per cent of the days being considered (paragraph 5). Also, although the rules did not define ‘engage’, there was a definition of ‘engage socially’ (which includes interacting in a ‘contextually and socially appropriate manner and being able to ‘establish relationships’). That was curious, as the words ‘engage socially’ in fact did not occur anywhere else; however the judge considered that the definition was nevertheless a ‘relevant consideration’ in considering what it meant to ‘engage’ (paragraphs 10–11). The wording of Activity 9d was on balance to be construed as ‘referring to such engagement as he [the claimant] may be capable of but for such overwhelming distress or the relevant risk from such behaviour’ (paragraph 12).

Applying that, the tribunal had abundant evidence that the claimant could not engage with other people as often as reasonably required and to an acceptable standard on over 50 per cent of the days. Being able to put on an act on special occasions, even a few times a week when attending drama group, did not change that (paragraph 17). There was also evidence of verbal aggression at home and minimal contact with residents in the supported accommodation. Though it could have been better expressed, it was also clear that the tribunal had concluded that to engage more would give rise to more verbal aggression with a consequent risk to the claimant’s safety (paragraph 18).

Summary

The claimant’s earnings fluctuated a lot due to pay increases and varying overtime. She reported these changes to the local authority at regular intervals by taking in her payslips. She was never provided with explanations of the averaging exercise that the local authority used when calculating her income. In June 2010, an overpayment decision was issued following the claimant’s submission of monthly payslips from November 2009 to April 2010. Her pattern of pay had not actually changed until January 2010; however, the local authority simply averaged out the pay over the whole period, with an effective date from the first of payslips in November, and concluded that as her income had gone up she had been overpaid throughout. The First-tier Tribunal rejected the claimant’s appeal.

Judge Lane allowed the claimant’s further appeal, holding that none of the overpayment was recoverable. That was because it had been caused by official error to which the claimant had not contributed, and the claimant could not reasonably have been expected to have realised that she was being overpaid. The local authority had erred in the way it averaged the earnings by including two months (November and December 2009) in which the claimant’s pay remained the same in a known pattern and, by adopting that error, the tribunal also erred (paragraphs 22–25). The claimant, although she did not report every change in her circumstance as it happened, did report changes in her earnings regularly. Given the lack of information the claimant had been given about how her earnings were calculated by the local authority, the judge was ‘simply unable to see how the claimant could have divined that she was being overpaid from the information available’. She had, therefore, not contributed to the overpayment and could not reasonably have been expected to have realised one was occurring (paragraphs 58–63).

The relevant legislation for averaging of earnings during an award is at regulation 29(3) of the Housing Benefit Regulations 2006 No.213. The judge accepted that given the wide discretion in the period to be used in averaging, it was difficult for a claimant to establish an official error regarding that (paragraph 14). But in this case, the local authority’s approach was flawed in applying simple averaging over the whole period covered by the payslips and in providing no explanation of the process of previous assessments, with the result that award notifications to the claimant were ‘impenetrable’ (paragraph 17). The inclusion of two months in which the claimant’s pattern of pay had not actually changed was not a choice open to the authority even given its wide discretion, and so was a ‘fundamental mistake’ which significantly undermined the decision (paragraph 24).

Comment from CPAG

The judge’s decision is a clear warning to local authorities that the wide discretion under regulation 29(3) does not give them carte blanche to take whatever approach is most convenient to them. They must also show to claimants how their earnings have been calculated – otherwise claimants may legitimately argue that they have neither contributed to the overpayment nor can be have expected to have realised an overpayment was occurring.

Summary

The claimant was transferred from incapacity benefit to employment and support allowance (ESA) from 3 November 2011. The claimant appealed about the amount of ESA he was awarded. That appeal (the ‘ESA appeal’) was allowed in August 2012, but the claimant had not attended the hearing, and was not told by the DWP that his ESA was increased, with arrears from 3 November 2011, until 25 October 2012. The increased ESA meant the claimant’s HB entitlement was reduced, and there was an overpayment from 3 November 2011; however, the local authority did not become aware of the increased ESA until March 2013. At that point, it decided that there was a recoverable overpayment for the period 3 November 2011 to 4 November 2012.

The First-tier Tribunal dismissed the claimant’s appeal, holding that the overpayment was caused by the claimant not informing the local authority that his ESA appeal had been allowed, and not by official error.

Judge Markus QC allowed the claimant’s further appeal, substituting a decision that the overpayment was not recoverable. The tribunal had erred in deciding that the overpayment was recoverable – in particular in not having regard to the fact that a substantial portion of the overpayment period was before the decision of the ESA tribunal, in not making a finding of fact about when the claimant actually became aware of the ESA tribunal decision, and in its approach to what constituted ‘official error’ (paragraphs 19–22). Regarding the latter, the judge approved the decision of Commissioner (as he then was) Williams in CH/943/2003 in holding that where an appeal tribunal finds a decision of the DWP or HMRC to have been wrong, that means that the original decision was an ‘official error’. The judge respectfully disapproved the contrary finding that had been made in CH/38/2008. It was the case that (applying regulation 100), as stated in CH/943/2003, the claimant could still have been found to have contributed to the official error, or to reasonably have been expected to have realised that his HB was being overpaid, so removing his defence against recovery of the overpayment. However, there was nothing in the present case to suggest that either of those applied (paragraphs 22–26).

On the facts of the case, the judge found that the claimant was not aware of the decision of his ESA tribunal until 25 October 2012, so could not have realised the overpayment was occurring before then. On the balance of probabilities, he would not have received the letter of that date until early the following week, and although he did not notify the local authority about it, he could not have done so to allow the authority to change his award before 4 November 2012. The result was that the entire overpayment in the period 3 November 2011 to 4 November 2012 was caused by official error and was not recoverable (paragraphs 31–34).

Summary

The claimant’s appeal concerned whether he was working for 30 hours a week for working tax credit (WTC). He had supplied evidence of this (receipts and table of hours worked) to HMRC. However, the HMRC response to the appeal to the First-tier Tribunal did not include that evidence or indeed (as subsequently conceded by HMRC to the Upper Tribunal) any documents relevant to the case. The tribunal proceeded on the assumption that claimant had not supplied the evidence, or enough evidence, when he claimed, and dismissed his appeal.

Judge Wikeley allowed the claimant’s further appeal and, with reference to the evidence now made available to him, substituted a decision that the claimant was entitled to WTC. There had been a breach of natural justice in that HMRC had failed to fulfil its obligation (under regulation 24(4)(b) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 No.2685) to provide the tribunal with copies of all documents relevant to the case, and the tribunal had been ‘erroneously lured into deciding the case on the basis that the claimant had allegedly failed to respond adequately to a letter sent to him by HMRC’. In fact, the claimant did not have the evidence as he had sent it to HMRC, and the letter sent by HMRC to the claimant had been sent not just after the original decision but after he had lodged his appeal. Judge Wikeley commented: ‘this is the stuff of Kafka’ (paragraphs 6-8).

In concluding comments, the judge reported that the HMRC submission to him on what had gone wrong included that its approach did not reflect the HMRC approach, in place since May 2014, to provide full details and relevant documents in responses to appeals. The judge said that left unclear why the pre-May 2014 approach was not compliant with the rules, what triggered the change and how that was affected. It also ‘remains to be seen’ whether the HMRC rule-compliant approach is reflected in further cases before the Upper Tribunal (paragraphs 16–18).

Note: Judge Wikeley has made a very similar decision about the same problem, this time concerning a termination of a tax credit award, in JR v HMRC (TC) [2015] UKUT 192 (AAC). There, he commented: ‘This is not the first time that the Upper Tribunal has had cause to make adverse comment on the standard of HMRC appeals responses filed with the First-tier Tribunal. The simple fact is that, as regards this aspect of its work, if HMRC were an educational establishment it would now be in special measures.’

Summary

The claimant’s husband died, and the funeral was held in June 2013. She completed a claim form for a funeral expenses payment from the social fund and said that she gave that to her jobcentre in September 2013, on a date that was within the three-month standard time limit for a claim, although she forgot to sign it. However, the claim form was not received at the DWP office responsible for processing the claim until October 2013. It was returned to her as ‘invalid’ for signing on 10 October, and the signed form was received on 16 October. However, the DWP then refused the claim on the basis that its receipt in October 2013 (ie, even the unsigned form) was outside the three-month time limit. The claimant’s eventual appeal was allowed by the First-tier Tribunal, who held that the date of claim was the date she gave the form to the jobcentre. The Secretary of State appealed, arguing that the claim was out of time as not received until October.

Judge Mitchell refused the appeal, holding that the tribunal had not erred in law. The claim, though initially defective, was received by the DWP inside the three-month time limit when it was given to the jobcentre, and the corrected claim was received within a month of the claim being advised of the defect, meaning it was treated as properly made in the first instance – ie, when it was received at the jobcentre (paragraph 41). The Secretary of State’s argument that the tribunal should have given him time to make representations about the relevance of date stamps on documents was rejected as he had chosen to present no evidence at all to the tribunal about arrangements for receipt of post in jobcentres, or of documents delivered in person to jobcentres or onward transfer of claim forms to benefit processing centres. In those circumstances, the tribunal was entitled to accept the claimant’s evidence about what had happened (paragraphs 36–37).

Under regulation 4(6)(b) of the Social Security (Claims and Payments) Regulations 1987, which is the relevant rule for a funeral expenses payment, the claimant must ‘deliver or send the claim to an appropriate office’. An ‘appropriate office’ is defined at regulation 2(1) as ‘an office of the Department for Work and Pensions’, including any postal address specified for that purpose. The jobcentre was an ‘appropriate office’ (paragraph 41(a)). Defective claims are dealt with under regulation 4(7). This applies where a claim is ‘defective at the date it is received at an appropriate office’. If a properly completed form is received within a month of the date on which the claimant is first advised of the defect, the claim is regarded as properly made ‘in the first instance’. The claimant satisfied that and so the date of claim was the date it was made ‘in the first instance’ – ie, at the jobcentre in September (paragraph 40(d) and (e)).

Summary

The claimant had requested an oral hearing of her appeal against a decision that she was not entitled to employment and support allowance as she failed the work capability assessment. She had been notified of the date of the hearing, but replied saying that she had a bad back, would not be able to attend and asking for a new hearing date to be fixed. The tribunal was given the request for the postponement but decided to proceed, and dismissed her appeal.

Judge Hemingway allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred in not adequately explaining its decision to proceed with the hearing. The tribunal said that it was satisfied that it was able to decide the matter without either party to the appeal being present and that it was fair and just to do so. Reference had been made by the tribunal to rules 2 and 31 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 No.2685. But Judge Hemingway held that amounted merely to a ‘bare reference to the rules’ without any reasoning as to why it had so decided. There was no indication of any ‘balancing act’ regarding competing arguments and, in particular, it was not clear whether the tribunal indeed accepted that the claimant was unfit to attend but decided it could decide the case fairly and justly anyway, or whether it disbelieved her or whether it was unable to reach a view on fitness (paragraph 9).

The judge appreciated that a tribunal in this position would not have much to go on. But it should at least consider if it is able to reach a view as to whether a claimant is likely to be unfit to attend as, if it can do that, it is likely to have ‘considerable relevance’ in assessing what is fair and just. There may be cases where a tribunal could properly proceed notwithstanding unfitness to attend, but it would be rare for that not to be important. The error in the present case was the failure to explain whether it had reached a view on the matter (paragraph 10).

Comment from CPAG

Arguably, where it is accepted that a claimant is too ill to attend a hearing but wishes for another date to be set, a tribunal would need to have particularly strong reasons for deciding to proceed, given the requirement at rule 2(2)(c) of the Tribunal Procedure Rules to ensure as far as practicable that ‘the parties are able to participate fully in the proceedings’.

Summary

The claimant had severe learning disability and autistic traits. She was unable to live on her own. When her carers moved in, the social work department agreed it would be better for managing the claimant’s condition if she had a separate lounge, and so what had been a downstairs bedroom was re-designated as a lounge. However, subsequently, the claimant was subject to a restriction under the ‘bedroom tax’ rules on the basis that the room was to be regarded as a ‘spare’ bedroom. The First-tier Tribunal allowed the claimant’s appeal, holding that it was ‘credible and reasonable’ that the claimant required her own living space because of her disability and was satisfied that the room had ceased to be a bedroom.

Judge Sir Crispin Agnew of Lochnaw Bt QC dismissed the further appeal of the Secretary of State. The tribunal had not erred in law. In his appeal, the Secretary of State cited the decision in SSWP v Nelson and Fife Council [2014] UKUT 525 (AAC) (the 'Nelson decision') as authority for the proposition that a claimant’s use of a room was irrelevant, and that what mattered was whether the room could be used as a bedroom, with the starting point being the landlord’s designation of the room, although that was not conclusive. 

However, in the present case, the judge pointed out that the Nelson decision actually said that the general test was whether the room could be used as a bedroom, and that further designation or choices by the occupant was ‘unlikely’ to be relevant, but that issues of designation could arise, for example, where the room had been converted into a bathroom or wet room (paragraphs 10–13). Therefore, the judge was of the opinion that ‘the Nelson decision goes no further than saying that normally the family designation and choice is not a relevant factor, but leaves open the question of whether or not there might be exceptional circumstances where re-designation might be appropriate’. On the facts of the present case, there was no reason why designation on professional advice for a mental health condition could not be such a circumstance. The judge also commented that if such capacity for re-designation was limited only to physical disablement, that would amount to unjustified discrimination – ie, against people with mental health conditions (paragraph 15).

Decision in brief

‘Scrutiny process’ involved certain claimants not required to attend a medical – decision that claimant had limited capability for work made on papers only – but the decisions did not involve the decision maker actually scoring the claimants under the descriptors regarding limited capability for work – this was in breach of the fundamental requirement to undertake such a scoring exercise in regulation 19(2) of the Employment and Support Allowance Regulations 2008 – result was decisions were invalid and of no legal effect – to extent that AC v SSWP (ESA) [2013] UKUT 229 (AAC) decided otherwise, that is not followed (paragraphs 4, 91 and 104) – First-tier Tribunal was capable of deciding that the decision was of no legal effect and must be set aside (claimants having appealed on basis of not having been put in the support group) (paragraphs 5 and 92)

Comment from CPAG

If the Secretary of State accepts Judge Wright’s decision, then presumably he must remake such scrutiny decisions made before 4 December 2013 so as to provide a score.

Decision in brief

Meaning of being ‘in receipt of’ a qualifying benefit – claimant incorrectly paid incapacity benefit – correct interpretation of regulation 9(1) and Case A of the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002 is simply whether the claimant had been ‘in receipt of’ a qualifying benefit – therefore, in this context, the fact that payment was made incorrectly was immaterial – caselaw on meaning of ‘payable’, and interpretation of Case C requiring a qualifying benefit to be ‘payable’ distinguishable as about different wording