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Summary

On supersession, the claimant has his award of the enhanced rates of both components of personal independence payment (PIP) reduced to the standard rate. Prior to the hearing of the claimant’s subsequent appeal, the district tribunal judge sent out directions which included telling the claimant that the tribunal would ‘have to’ consider which scoring descriptors should apply, and directing that the Secretary of State must attend – ie, via a presenting officer. In the event, no presenting officer attended. The tribunal’s decision notice said that the decision on supersession was ‘confirmed’ but (contrary to that) that the claimant was not entitled to either component of PIP at all. The tribunal’s statement of reasons said, in effect, that the tribunal was entitled to reconsider everything, the claimant had been warned of that, and that the Secretary of State had decided not to attend.

Judge Wright allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred in that the decision notice wrongly stated it confirmed the decision on supersession, when in fact it made a more adverse decision for the claimant. As stressed in SSWP v JL [2018] UKUT 291 (AAC), it is essential that the decision notice is legally coherent. The tribunal proceeded in the absence of a presenting officer despite having directed attendance, and had not shown it had properly considered the waiving of the requirement. ‘The presenting officer’s failure to attend’, held the judge, ‘was a matter the First-tier Tribunal could have taken into account by, for example, waiving the requirement or requiring it to be met. But by proceeding on the basis that it was open to that official to choose whether to attend or not, the First-tier Tribunal misdirected itself and thereby erred in law.’ (paragraph 12)

The tribunal had also erred in its approach to reconsidering all the descriptors and making a decision less favourable to the clamant than the one she had appealed against. This might not have been so, said the judge, ‘if the law required the First-tier Tribunal to decide all and any issues going to entitlement that arise on the evidence. But that is not the law. Under section 12(8)(a) – which provides that the First-tier Tribunal “need not consider an issue that is not raised by the appeal” – the tribunal is only required to decide the issues that are raised by the appeal and has a discretionary power to consider other issues’ (paragraph 16). The tribunal had not explained if or how it had exercised that discretion, and it was not possible to see from the papers that the claimant had herself put all the descriptors into question. Further, in possibly obiter comment, the judge was not satisfied that the claimant had been given adequate notice that issues neither she nor the Secretary of State had raised were issues arising on the appeal. Although the district tribunal judge had written in advance, taking that approach was something that could only properly be done by the three-person tribunal that decided the appeal (MB and others v SSWP (ESA and DLA) [2013] ULKUT 111 (AAC); [2014] AACR 1).

Comment from CPAG

The decision is a correction (not the first) to a First-tier Tribunal wrongly assuming that it either was obliged to reconsider all aspects of a decision or that it was simply entitled to do so without proper reason. The observation that only the tribunal can warn a claimant of a wider reconsideration, even if strictly obiter, is also of note.

Summary

The claimant began inputting his details and evidence onto the online UC claim form on 2 December, but logged out before returning to complete it and submit the finalised form on 6 December. The DWP took his date of claim as the date the finalised form was submitted – ie, 6 December. The claimant argued that his date of claim should have been 2 December as beginning completion of the form on that date, logging out and then completing it later should be regarded as having made a defective claim on the earlier date, which was then corrected within the time permitted – ie, one month or potentially longer.

Judge Wikeley rejected the claimant’s argument and held that the date of claim was 6 December – ie, the date the claimant hit the ‘submit’ button on the online form and so sent the claim in. The relevant legal provisions included in particular regulations 8 and 10 of the Universal Credit, Personal Independence Payment, Jobseeker's Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013, SI No.380. The judge noted that regulation 10 is the one which sets the date of the claim, and under regulation 10(1)(a) that the ‘default rule’ is that the date of claim is, ‘in the case of a claim made by means of an electronic communication in accordance with regulation 8(1), the date on which the claim is received at an appropriate office’ (paragraph 33).

The judge rejected the claimant’s argument that beginning the completion of the online form and then logging out to complete it later constituted a ‘defective claim’. Crucially, for the judge, there was no valid comparison (as argued for the claimant) with the housing benefit rules, in which claiming via a claim form or other written method was possible, and so rules allowed the date of claim to be treated as earlier than that on which it was received – eg, to allow for postal delays and DWP opening hours. It was this context in which the Court of Appeal made its decision in Novitskaya v London Borough of Brent (Secretary of State for Work and Pensions intervening) [2009] EWCA Civ 1260; [2010] AACR 6. The universal credit context however was very different. Universal credit, said the judge,’ is an exclusively online benefit – a claim can be made literally at any time, 24/7. It follows that no allowance need be made for e.g. postal delays or DWP office opening hours’ (paragraph 64). There was no direct read across from the housing benefit situation: ‘The Court of Appeal’s observations in Novitskaya were premised on the relatively relaxed statutory requirements for the form of a claim for most traditional social security benefits… whereas the universal credit claims regime, as described above, is far more prescriptive. One cannot assume…that the generous Parliamentary intention identified by the Court of Appeal in Novitskaya necessarily holds good in the new scheme’ (paragraph 65). The judge was not clearly able to identify of exactly what a ‘defective’ claim for universal credit might be. In any case, he was not satisfied that ‘an incomplete online universal credit claim form, even if the data is held on the Secretary of State’s official computer system, amounts to a defective claim in circumstances where the claim has not been submitted…’ (paragraph 102).

Comment from CPAG

CPAG represented the claimant in this case. The decision contains a comprehensive survey of the relationship of the practical reality of claiming universal credit to the relevant legal provisions. The outcome is obviously disappointing for any claimant who undergoes delay submitting a claim.

Summary

In this decision, the High Court rejected an argument that the exclusion of ‘pre-settled status’ under the EU Settlement Scheme as a valid right to reside for benefit purposes is unlawful.

The claimants, both Romanian nationals, had been awarded pre-settled status under the Settlement Scheme – ie, under the UK Immigration Rules. Exclusions of that as a valid right to reside for benefit were introduced by the Social Security (Income-related Benefits) (Updating and Amendment) (EU Exit) Regulations 2019. The claimants argued that the change was unlawful discrimination on grounds of nationality, contrary to Article 18 of the Treaty on the Functioning of the European Union (the argument actually focused on the amendment to regulation 9 of the Universal Credit Regulations). Specifically, they argued that, applying existing caselaw authority, if an EU national is lawfully resident in another EU member state on the basis of a right of residence arising under that state’s domestic law (eg, via pre-settled status), s/he may not be subject to discrimination on grounds of nationality.

Mr Justice Swift accepted the Secretary of State’s argument that, applying the Supreme Court in Patmalniece v Secretary of State for Work and Pensions [2011] 1 WLR 783, any discrimination in these cases was indirect rather than direct discrimination and so capable of justification. Further, held the judge, the habitual residence test (which included the right to reside requirement) in the Universal Credit Regulations was justified (and so not unlawful), and all the amendments made regarding the exclusion of pre-settled status did was to ‘maintain the status quo’ – ie, so that an EU national had to have a right to reside under the existing right to reside rules, and ‘maintain the prior rationale’ for the habitual residence test in the Universal Credit Regulations (paragraph 32).

Comment from CPAG

Though the coronavirus pandemic was not part of the context for the case, the decision underlines the particularly harsh environment for EU nationals effectively trapped in the UK who do not have a right to reside other than via pre-settled status. CPAG has applied for permission to appeal to the Court of Appeal.

Note: for the Court of Appeal's decision, see our caselaw summary Fratila and Tanase v Secretary of State for Work and Pensions and another [2020] EWCA Civ 1741. This was subsequently appealed to the Supreme Court, see Fratila and another v Secretary of State for Work and Pensions [2021] UKSC 53.

Decision in brief

Claimant failed to disclose the cessation of his disability living allowance and his wife’s carer’s allowance (CA) – that led to an overpayment, but the calculation should correctly have included an offset (ie, reduction) in the amount due to the cessation of the CA and the consequent need to disregard that as income – regulation 13(1)(b)(ii) of the Social Security (Payments on account, Overpayments and Recovery) Regulations 1988 (SI No.664) applies – that requires offset on the notional basis that any misrepresentation or failure to disclose had been remedied (ie, so that the cessation of CA as income was to be taken into account) – that is a hypothetical approach, so the Secretary of State’s refusal to offset on the ground that the cessation of the CA had to be reported as an advantageous change of circumstance within a month was wrong.

Summary

The claimant was held to have been overpaid income-based JSA and also to be liable to repay an overpayment of £12,460.09. The issue before the Upper Tribunal was whether the claimant had misrepresented her capital when claiming JSA – ie, so as to provide a ground for recovery of the overpayment, under section 71 of the Social Security Administration Act 1992. At the First-tier Tribunal, the Secretary of State had acknowledged that the JSA claim form was no longer available, and argued that the overpayment was recoverable on the alternative ground of failure to disclose a relevant fact (also under section 71). The tribunal instead decided that, the absence of the claim form notwithstanding, the correct ground for recovery was misrepresentation.

Judge Hemingway allowed the claimant’s further appeal to the extent that he decided that the issue of whether the claimant had misrepresented the amount of her capital when claiming JSA was to be reconsidered by a fresh tribunal. He did not revise the associated decision that the claimant was not entitled to income-based JSA (ie, and so had indeed been overpaid) because of excess capital. The judge considered that the Secretary of State’s alternative ground of failure to disclose was not persuasive. Where it is said something is not disclosed on a claim for benefit which results in an overpayment (ie, as distinct from an ongoing award), ‘then the basis for recovery…can only be misrepresentation’ (paragraph 26). It was certainly open to the tribunal to adopt a different ground for recovery to that relied upon by the Secretary of State; however, an explanation for the tribunal’s thinking about that was required, and the claimant was required to have been put on notice and given an adequate opportunity to meet this change without being disadvantaged by surprise (R(SB) 40/84 cited); the tribunal had failed to do that and so had erred (paragraphs 28 – 30).

The mere absence of the claim form did not prevent the tribunal from finding that the claimant had misrepresented her savings. Depending on the facts, a tribunal can reconstruct content of a missing form, and in this case, there was evidence that the claimant had also misrepresented her savings in claims for employment and support allowance, housing benefit and a discretionary housing payment. Although that did not necessarily mean she had misrepresented her savings when claiming JSA, there was ‘sufficient evidence…to make it legally permissible’ for the tribunal to conclude that she did (paragraph 35 – 38). However, the new tribunal was to reconsider whether it was right not to limit itself to the Secretary of State’s ground of failure to disclose, and if not, whether the claimant had misrepresented her savings, the claimant having been given the opportunity to respond specifically to that (paragraph 40).

Comment from CPAG

This decision underlines that it is for a tribunal to decide whether there is a ground for recovery of an overpayment under section 71; however, if the ground identified has not yet been put to the claimant, then s/he must be given adequate opportunity to address it. As in other authority (eg, VL v SSWP (PC) [2018] UKUT 403 (AAC), Bulletin 269, p11), the mere absence of the relevant claim form does not preclude a finding of misrepresentation, although the facts are crucial.

Summary

This decision of the Court of Appeal concerns whether a Latvian national had a permanent right to reside for pension credit purposes, on the basis of having 'resided' in the UK for more than three years prior to ceasing work on reaching pension age or having taken early retirement. In particular, the Court considered two questions: (1) whether for these purposes 'resided' meant merely being present or instead residing 'legally' (ie, with a right to reside), and (2) whether the extension of the worker registration scheme (WRS) in 2009- 2011 was lawful. These questions had been considered in this case by the Upper Tribunal in TG v SSWP (PC) [2015] UKUT 50 (30 January 2015).

On the first question, the Court held that in this context 'resided' meant 'legally reside' (ie, with a right of residence), so that mere presence for more than three years was insufficient. The relevant wording was in the provision about acquisition of a permanent right to reside after more than three years' 'residence', at Article 17(1 )(a) of the so-called 'Citizens Directive', EC 2004/38/EC. Giving the lead decision of the unanimous decision of the Court, Lord Justice Rupert Jackson considered that the natural meaning of the wording was that of legal residence, and that accorded with previous caselaw and in particular with the opinion of the Advocate General in the decision of the Court of Justice of the European Union in Secretary of State for Work and Pensions v Lassal (Child Poverty Action Group, intervening) [2011] All ER (EC) 1169 (paragraphs 49-50). On this point, the Secretary of State's appeal against the decision in TG succeeded.

However, it had also been held in TG that the extension of the WRS in 2009-2011 was unlawful, on the basis that it was not- as required - proportionate. On this point, the Court upheld the decision in TG and rejected the Secretary of State's appeal. Reviewing the reasoning of the Upper Tribunal in TG, the Court could find no fault with it. Although the WRS was lawful when introduced in 2004, 'the world had changed by 2009' (paragraph 77). Extension of the WRS was not expected to make any substantial contribution to alleviating disturbance to the UK labour market, and the Court concluded that the Upper Tribunal did not err in holding that the extension of the WRS was disproportionate and therefore incompatible with European Union law (paragraphs 78-81).

Note: this case proceeded on appeal to the Supreme Court, see our caselaw summary Secretary of State for Work and Pensions v Gubeladze [2019] UKSC 31.

Summary

This decision of the Supreme Court arises from a challenge to the decision of the Court of Appeal in this case (see our caselaw summary Secretary of State for Work and Pensions v Gubeladze [2017] EWCA Civ 1751). Two questions were considered: (1) whether the extension of the worker registration scheme (ie, continuing the requirement of nationals of A8 European Union (EU) member states to register employment) was lawful; and (2) whether the ‘residence’ referred to in the rules for permanent right to reside after three years’ residence in the UK followed by ceasing work meant ‘legal’ residence (ie, with a right to reside) or merely ‘factual’ residence – ie, simply residing in the UK.

The court held that (as held by the Court of Appeal) the extension of the worker registration scheme (the WRS) in 2009 was unlawful. That was because it failed to satisfy the principle of proportionality. Contrary to the argument of the Secretary of State, there was no good reason to depart from the decision of the House of Lords in Zalewska v Department for Social Development (Child Poverty Acton Group intervening) [2008] UKHL 67; [2008] WLR 2602 that any requirements of the WRS were imposed pursuant to provisions permitting derogation from EU rights and so had to be proportionate (paragraph 44). Further, although there was evidence that removing the WRS would have a small effect on the UK labour market, the Secretary of State had not provided any evidence as to how she sought to balance that against the significant detriments resulting from continuing the WRS for employers and migrant A8 workers (paragraph 56). Neither Judge Ward in the original Upper Tribunal decision nor the Court of Appeal had erred in applying the correct proportionality analysis and finding that the detriments were substantial and serious, and were plainly entitled to conclude that the extension of the WRS was disproportionate and so unlawful under EU law (paragraphs 70–74).

Regarding the meaning of ‘residence’ for permanent residence after three years’ residence followed by cessation of work, the context here was the wording of the relevant provision of Article 17(1)(a) of the ‘Citizens Directive’ (Directive 2004/38/EC). The court decided that such residence meant merely ‘factual’ residence rather than ‘legal’ residence. Considering both the purpose of Article 17 and the language used in the provision (which, unlike in Article 16, did not require the person to have ‘resided legally’), the court concluded that the court of Appeal had erred in interpreting Article 17(1), whereas Judge Ward in the Upper Tribunal had correctly concluded that the ‘residence’ referred to was factual residence (paragraphs 76–92).

Decision in brief

Claimant ‘sacrificed’ some earnings under a contractual agreement to forego an amount of cash pay in return for the employer’s agreement to make an employer’s contribution to the employee’s occupational pension – held that did not form part of the employee’s earnings as they fell to be excluded as a ‘payment in kind’ under regulation 95(2) of the Employment and Support Allowance Regulations 1998 – approach taken in R(CS) 9/08 approved and applied

Decision in brief

All this was misconceived: the application had been made on time and not been withdrawn and so remained pending before the tribunal – the appointee was not dissuaded and eventually their application for permission to appeal was dismissed by the Upper Tribunal – but Upper Tribunal judge wanted observations on tribunal’s direction to be published

Decision in brief

The local authority terminated her housing benefit by ‘treating’ her as having excess capital, originally as someone analogous to a sole trader or partner in a company, under regulation 49(5) of the Housing Benefit Regulations 2006 – before the First-tier Tribunal, the local authority said it had revised that and instead ‘treated’ the claimant as having ‘actual’ capital in the company, under regulation 43 – the tribunal misdirected itself in saying that that it refused the claimant’s appeal by treating her as possessing capital in the form of a share of the capital value of the companies under regulation 49(5), but also saying that regulation 49(5) was discretionary and that the local authority had validly decided not to exercise it in this case – the tribunal therefore failed to identify any ground for treating the claimant as possessing capital above the relevant limit – it was an available option instead to calculate the capital the claimant actually held in the companies, by identifying the value of her shareholding in them – regulation 49(5) applies where that option is not used

Summary

The appeal before the First-tier Tribunal concerned decisions holding that the claimant (now deceased) had been overpaid pension credit regarding several claims made between 2005 and 2020, and that these were recoverable from his estate as they had been caused by his past misrepresentations concerning his capital. The tribunal upheld those decisions. The executor of the estate appealed to the Upper Tribunal on various grounds. Permission to appeal was granted only on the ground that the tribunal should have considered whether to adjourn in the light of evidence described by the presenting officer at the hearing, to the effect that departmental records regarding one of the claims was possibly still available, but had not been provided to the tribunal. 

Judge Perez allowed the further appeal on that ground, and directed that a new tribunal must consider afresh whether the overpayment relating to the claim in which the departmental evidence might still be available was recoverable. The tribunal should have considered adjourning to get that evidence, even though an adjournment had not been requested by the representative of the executor of the estate. Specifically, said Judge Perez, the tribunal had ‘erred in failing to explore whether the evidence was still available...Whether that meant adjourning the whole hearing or just the question regarding [the claim in question], that possibility should in my judgement have been explored’ (paragraph 14). 

The First-tier Tribunal had (in itself refusing permission for a further appeal) pointed out that there had been no application to adjourn. But that was not conclusive. Judge Perez said: ‘Where the failure to seek an adjournment was a failure by an experienced representative, an argument might be made that the appellant is fixed with that failure...’, but that here the level of the representative’s experience may not have been higher, and ‘... in any event, the First-tier Tribunal’s jurisdiction is inquisitorial’, and in this case the tribunal should have followed up on ‘the possibility of not having to piece together evidence’ regarding the claim in question, in the way it had been obliged to do regarding the other (older) claims (paragraph 15). 

Comment from CPAG

Note that the judge did say that a failure to request an adjournment by an experienced representative may preclude a further appeal on the basis that the tribunal should have adjourned. Arguably, where (as in this case) the need for an adjournment is clear, then a failure by the tribunal will always be an error, as the tribunal is exercising an inquisitorial jurisdiction. But clearly, representatives must be alive to the need to request an adjournment and not rely on the tribunal.

Summary

The claimant’s UC claim was made on 25 February 2022 and he was awarded it from that date. On 17 May 2022, he requested ‘backdating’ to 1 November 2021, the date on which he became unemployed after giving up work due to chronic back pain. That request was refused on the grounds that it was late. Following an unsuccessful mandatory reconsideration, the claimant appealed. The First-tier Tribunal dismissed the appeal, holding that he could have made hjs claim earlier by claiming by telephone. 

Upper Tribunal Judge Jones upheld the claimant’s appeal and remitted the case to a fresh tribunal. The tribunal had held that the claimant could reasonably have been expected to have claimed earlier than he did, because he could have claimed by telephone. But the tribunal had erred in law in approaching the question too narrowly and making insufficient findings of fact. 

One of the grounds for backdating, in regulation 26(3) of the Universal Credit (Claims and Payments) Regulations 2013, is that the claimant ‘has a disability’. That is not defined in the regulations, but on the facts, that was the case here (as the tribunal had accepted), as the claimant had chronic back pain of sufficient severity to oblige him to have given up work. Regulation 26(2) requires not only that one of the backdating grounds in subparagraph (3) applies but also that ‘as a result of that circumstance...the claimant could not reasonably have been expected to have claimed earlier’, so that a causal connection between the claimant’s disability and not claiming earlier was required. But – as the judge also agreed – what was reasonably expected here ‘must be assessed against the background of the claimant’s circumstances as a whole’ (paragraph 39). In this case, the claimant had no prior knowledge of the benefit system, including the possibility of claiming by telephone, and did not speak English as his first language. He argued that that was relevant to the regulation 26(2) test. The judge agreed but said that if someone in similar circumstances ‘could reasonably have been expected to have discovered UC, and the means of claiming it’, so that the claim could have been made even just one day earlier, then backdating could not apply. However in this case, the tribunal, in only considering whether the claimant’s back pain stopped him making a telephone claim, appeared ‘to have unduly narrowed its view’ and failed to have regard to the claimant’s wider circumstances, so that ‘it failed to properly to consider what a hypothetical person with the appellant’s disability could reasonably have been expected to do, given his knowledge of the benefit system and the possibilities for acquiring information about benefit entitlements and procedures available to him’ (paragraphs 46–48). A related failure was making no findings that the Secretary of State would have allowed the claimant to claim by telephone. 

Comment from CPAG

As this decision illustrates, merely positing a telephone claim as a viable alternative method of claiming will not be sufficient to refuse ‘backdating’. All the facts must be considered, including whether the claimant would have been permitted to claim by telephone (most are not).