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Summary

The claimant’s appeal to the First-tier Tribunal was against the refusal of her claim for personal independence payment (PIP). The tribunal dismissed her appeal, holding that she had ‘overstated’ the impact of her health conditions. 

Judge Wikeley allowed the claimant’s further appeal and remitted the case to a fresh tribunal. Although most of the claimant’s grounds for further appeal involved an attempt to re-argue the case on its factual merits (and so would not have led to permission to appeal), there was an issue arising from the fact that it seemed the tribunal had not considered certain evidence that had been added to the appeal bundle. He held that led to a point about how the tribunal had assessed the claimant’s credibility. In particular, it did not believe she had been medically advised not to drive for as long as she claimed, but that was in apparent ignorance of the further medical evidence which supported what she said. 

The judge agreed with the Secretary of State, who submitted that the tribunal had erred in not having regard to all the relevant evidence in finding that the claimant had ‘overstated’ her claim. Although tribunals were entitled to make their own findings about credibility and in general it was not for the Upper Tribunal to disturb that (per IP v SSWP (IB) [2010] UKUT 97 (AAC)), it was possible to do so where the finding on credibility involved an error of law. In this case, the tribunal had erred and may have reached a different conclusion on the claimant’s credibility had they been aware of the additional evidence. Further, in that case they may have gone on to award the claimant’s further points. 

Comment from CPAG

Fairness and natural justice need to be observed, as well as – as shown by the present case – considering the claimant’s evidence in the context of all the available evidence. See also the article ‘You’re unbelievable! Tribunals and claimants’ in Bulletin 291 (December 2022).

In this decision, the High Court rejected an argument that the benefit cap is unlawful as unjustified discrimination, a breach of the right to family life and irrational and/or unreasonable.

See the article on p5 of Bulletin 237 for details.

Note: this decision was appealed to the Court of Appeal and subsequently to the Supreme Court. See our summary of the Court of Appeal's decision: R (SG and others (previously JS and others)) v Secretary of State for Work and Pensions[2014] EWCA Civ 156, and of the Supreme Court's decision: R (SG and others (previously JS and others)) v Secretary of State for Work and Pensions [2015] UKSC 16.

Decision in brief

Claimant had ‘warning signs’ of seizure – awarded enhanced rate daily living component but refused mobility component – tribunal concluded could follow a journey safely as had warnings and seizures lasted ‘only’ 5–10 seconds – test regarding safety established by in RJ, GMcL and CS v SSWP [2017] AACR 32 involved assessment of likelihood and severity of potential harm – warning signs might be relevant to that but tribunal made inadequate findings about what they were and what the claimant could be expected to do – similarly, duration of loss of consciousness could be relevant but tribunal needed to explain why the short duration of the seizure was safe

Summary

The claimant reported several health problems, including problems with pain and immobility in her knee. She was refused personal independence payment (PIP). The tribunal upheld that refusal, awarding her no points. In its reasons, the tribunal said that in 2022 a specialist had said that she had full functionality in both knees. The tribunal also said that at the start of the hearing the claimant was observed to walk in at a reasonable pace and at a normal gait, without a walking aid, and that her stated problems with weight bearing on one leg had not been apparent from the manner in which she had walked into the tribunal room. 

Judge Fitzpatrick allowed the claimant’s further appeal and remitted the case to a fresh tribunal. She provided full reasons ‘as I consider it may be helpful in assisting tribunals when dealing with observations made on the day of hearing, adopting a holistic approach to the assessment of evidence (particularly where that evidence may be contradictory), and how this should be addressed in the written reasons’ (paragraph 5). The tribunal had erred in its approach to the evidence. Firstly, in relying on the comments of the specialist in 2022, it made no reference to the findings of the healthcare specialist’s report which referred to (among other things) patella tendonitis and degenerative meniscus tear in the right knee with pain and discomfort, evidence from the claimant’s GP saying she could not stand for a long period due to pain in her right knee, and an MRI report referring to osteoarthritis in her right knee. It was incumbent on the tribunal to consider all the evidence, and to explain why it preferred the evidence of the specialist’s 2022 report to the evidence of the GP and the MRI report. Failure to do so was an error of law. 

Regarding what the tribunal said about its observations of the claimant at the hearing, it was clear that the tribunal did attach weight to those; but it was not clear whether it gave the claimant the opportunity to address this. That was a further error of law. 

The tribunal, held the judge, 

‘...should have afforded the claimant the opportunity to address inferences drawn by it from its observations on the day of the hearing which it intended to rely on and which were material to its findings of fact. Failure to do this is, at the very least, a breach of the principles of natural justice. On this point note the helpful guidance set out by Upper Tribunal Judge Wikely in KH (by CH) v SSWP (DLA) [2022] UKUT 303 (AAC) and the principles adumbrated by Judge Poole QC (as she was then) in CC v Secretary of State for Work and Pensions [SSWP] (ESA) [2019] UKUT 14 (AAC)’ (paragraph 10). 

Comment from CPAG

This decision, written with intent to provide guidance, is notable as a very clear expression of the duty on a tribunal to give a claimant a chance to comment on inferences it has made from its observations of them. It should be noted that in CC v SSWP it was held that although there was no general duty to put matters of inference to the claimant, the caveat was that natural justice required it where it was a new matter at the hearing (not foreshadowed in the papers). In the present case, the judge clearly considered that this natural justice point arose given the amount of evidence in the papers supportive of the claimant’s case, which the tribunal apparently ignored.

Summary

The claimant had shared care of his son with his ex-partner, the child’s mother. This included that the son spent an equal number of nights living with him and with his mother. The First-tier Tribunal found that as a fact, but held that under regulation 4(4) of the Universal Credit Regulations 2013 (SI No.376), only one person could be treated as responsible for the child, that person was the one with the main responsibility, and in this case, on the facts, that was the child’s mother. Therefore, the claimant could not have the child included in his ‘extended benefit unit’ for UC and could not be allocated a room for the child as part of his entitlement to the housing element of UC. The claimant appealed, arguing that regulation 4 was in breach of the Equality Act 2010 and the prohibition on discrimination in Article 14 of the European Convention on Human Rights (ECHR). 

Judge Wright dismissed the claimant’s further appeal. The Equality Act could not assist the claimant in this appeal (whatever the claimant’s exact argument, not set out by the First-tier Tribunal, about that was), as the Upper Tribunal did not have jurisdiction to rule on such arguments. The claimant’s argument about the ECHR was that regulation 4(4) indirectly discriminated against him as a male parent with exactly shared care of a child, compared to female parents with shared care of a child. However, as was eventually conceded by the claimant before the Upper Tribunal, extant caselaw on the identical argument in other benefit cases had consistently held that there was no discrimination against male parents in this situation, or that any discrimination was justified – ie, and so not unlawful. The long line of authority about this included: Humphreys v Her Majesty’s Revenue and Customs [2012] UKSC 18, reported as [2012] AACR 46; TD v SSWP and London Borough of Richmond- Upon-Thames (HB) [2013] UKUT 642 (AAC), JB v SSWP and Basingstoke and Deane BC (HB) [2014] UKUT 223 (AAC); MR v North Tyneside Council and SSWP [2015] UKUT 34 (AAC); and R (Cotton) v SSWP [2014] EWHC 3437 (Admin). 

Briefly reviewing his reasons for rejecting the Article 14 arguments, Judge Wright doubted that the limited evidence before him established that regulation 4(4) indirectly discriminated against male parents. But even if that were the case, the Secretary of State had shown that any such discrimination was justified, in that it was not manifestly without reasonable foundation and had an objective and reasonable justification. ‘It is this aspect of the argument on which previous decisions referred to above have foundered,’ said Judge Wright, ‘and this appeal is no different’ (paragraph 29). The previous caselaw authority had identified the good reason for targeting resources at one household, and the increased costs involved in ‘splitting’ the benefits for them. Also, discretionary housing payments could assist someone like the claimant in this case (and in fact had assisted him). Finally, it was relevant the UC regulations had been passed by affirmative resolution – and so debated in parliament. That affected the intensity of review that was appropriate before the Upper Tribunal (per R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16, reported as [2015] 1 WLR 1449), and given that the principle of concentrating resources on one parent had been adopted consistently across a number of benefits, the absence of concerns in parliament about its application to the UC rules could be viewed as an indication of approval. 

Comment from CPAG

On the facts of the case, it was accepted by all parties that the child’s mother had ‘main responsibility’ for him. The judge mentioned her retention of child benefit as part of the evidence about that. More widely, however, it is worth remembering that, although child benefit is often used by the DWP as a proxy, the UC rules do not specify child benefit entitlement as determinative either of responsibility or main responsibility for a child.

Summary

The claimant was in receipt of UC. On 17 April 2021, the claimant reported in her online journal that she had a health condition that affected her capacity for work and that she was a carer for her disabled daughter. The claimant asked if she needed to submit a ‘fit note’ but received no reply. She supplied a fit note on 24 February, dated 15 April 2021. Having had a work capability assessment (WCA) applied and been assessed as having limited capability for work-related activity (LCWRA), it was decided that the three-month ‘relevant period’ before the LCWRA element could be included in the award started on 24 February – ie, the date she supplied the fit note. On appeal, the First-tier Tribunal upheld that decision, holding that the relevant rule (at regulation 28 of the Universal Credit Regulations 2013 No.376) provided that the relevant period only began when the fit note was provided.

Judge Church allowed the claimant’s further appeal and substituted a decision that the relevant period in this case began on 17 April 2021 – ie, the date on which the claimant reported her health problems on her online journal but received no response to her query about submitting a fit note. The tribunal had erred in its interpretation of the meaning of regulation 28. In fact, that did not preclude a self-certification from starting the three-month period. Further, given the fact that the DWP had not responded to the claimant’s query about a fit note, it was unreasonable (in terms of the legislation) to require her to have done so at that point, and, together with the later submission of a ‘backdated’ fit note, the claimant had bridged the gap between her report on the journal and the actual date on which the fit note was submitted.

Regulation 28 was the relevant rule for the relevant period. That provides that (except in cases concerning claimants earning above a certain threshold) the relevant period begins on ‘the first day on which the claimant provides evidence’ of their limited capability for work, ‘in accordance with the Medical Evidence Regulations’. Those regulations are the Social Security (Medical Evidence) Regulations 1976 No.615. Regulation 2 of those regulations provides by default that the medical evidence required is, in effect, a fit note. But an exception to that at subparagraph (1A) is that where it would be ‘unreasonable’ to require a fit note, the person shall provide ‘such other evidence as may be sufficient’. Another exception was at regulation 5, which provides for self-certification for the first seven days of sickness. The judge could see ‘no reason’ why the claimant’s report in her journal on 17 April should not be self-certification for the first seven days of her sickness (paragraph 22). Further, given that the claimant reported her sickness timeously and that her query about submitting a fit note was unanswered it was ‘unreasonable’ (per regulation 2(1A) of the Medical Evidence Regulations) to require her to provide a fit note for as long as that query went unanswered. The judge was satisfised that the claimant’s report on her journal together with the later submission of a backdated fit note amounted to ‘such other evidence as may be sufficient’, with the backdated fit note serving to ‘bridge the gap’ back to her initial self-certification (paragraph 26).

Comment from CPAG

It is common for the default requirement for a fit note to start the relevant period to be mistaken for an absolute rule with no exceptions. This decision is clear authority that such an interpretation is wrong. 

Thanks to Lee Kempson, Welfare Rights Officer at City of Wolverhampton Council and the claimant’s representative, for sending us this decision.

Decision in brief

Tribunal should have adjudication history available so that it can properly see the terms of the decision under appeal – advice from work coach to seek placement in support group will be relevant evidence in an appeal against refusal to put in support group – official guidance is that adjudication histories and, where relevant to the appeal, ‘action plans’ recording what work-related activity the claimant is expected to undertake should be included in appeal submissions – but it ‘remains to be seen’ whether this is observed in practice.

Decision in brief

Enforcement reference to the Upper Tribunal invalid as under rule 7(3) can only arise from failure to comply with direction of the First-tier Tribunal – DWP not a legal person – can only be made by the Chamber President or a regional tribunal judge of the Social Entitlement Chamber, not a district tribunal judge.

Decision in brief

On the facts of the case, the placing of the money in the joint bank account meant that the money was held in the account on a bare trust for the claimant, and so it should have been disregarded as capital under paragraph 17 of Schedule 8 of the Jobseeker’s Allowance Regulations 1996 – tribunal erred in requiring money to be in ‘personal injury trust’, as the requirement is that the funds ‘derived from’ the compensation are held in ‘a trust’.

Decision in brief

Claimant had said she wanted a hearing of her appeal about failure of the work capability assessment – but was not notified of a date, and tribunal decided appeal against her without a hearing and without consulting her, as it considered it was able to make a decision without a hearing – tribunal erred in breaching rule 27 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 – it did not get the agreement of the parties to the appeal – this was so even though the tribunal found the claimant scored sufficient points to pass the work capability assessment, as it failed to put the claimant in the support group, and so she could have got more from her appeal.

Decision in brief

Need for benefit to be ‘comparable’ – pension credit for claimant in receipt of a Polish pension additional amount for severe disability – to be included in the claimant’s entitlement, because she receives Dodatek Pielenacyjny, which is in her circumstances equivalent to attendance allowance

Decision in brief

Contrary finding in CH/844/2002 disapproved – not eligible under regulation 12(1)(d) (Kirklees MBC v JM [2018] UKUT 219 approved) – alternative ground under 12(1)(f) (mooring charges) not considered.