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Summary

The claimant was a six-year-old child with autistic spectrum disorder. He was awarded the high rate of the care component of DLA, but refused the mobility component. On appeal, it was argued that he should be awarded the high rate on the basis of the 'severe mental impairment' route. The First-tier Tribunal rejected the appeal, holding that although the claimant probably suffered from arrested or incomplete development of the brain, his impairment of intelligence and social functioning was not extreme, and the evidence showed that his social functioning was restricted but not severely impaired.

Judge Knowles QC allowed the claimant's further appeal and remitted the case to a new tribunal. The tribunal had erred in applying the evidence and the relevant law. Section 73(3)(a) of the Social Security Contributions and Benefits Act 1992 provided that the severe mental impairment route included the requirement that the claimant was 'severely mentally impaired'. That was defined by regulation 12(5) of the Social Security (Disability Living Allowance) Regulations 1991, SI 1991 No.2890, as meaning 'a state of arrested development or incomplete physical development of the brain, which results in severe impairment of intelligence and social functioning.' In the relevant caselaw, the judge considered R(DLA) 1 /00 as authority for the proposition that evidence about a person's insight and sagacity can satisfy both the test of severe impairment of intelligence and severe impairment of social functioning (paragraph 17). In CDLA/2414/2012, insight and sagacity had been equated with 'the ability to function in real-life situations' (paragraph 18).

The tribunal had erred in applying a comment in the evidence that the claimant had 'good non-verbal problem solving skills' out of context, when the evidence also included that the claimant had very low understanding of language and expressive language skills, and also in not considering other evidence such as that from his school and his statement of special educational needs (paragraphs 21-23). The tribunal also erred in assuming that the claimant's poor language skills could not be evidence of impaired intelligence (paragraphs 24-25). Further, the poor language skills could be evidence of impaired social functioning, and in this case there was evidence that this was the case (paragraphs 29-30). Also, the tribunal had erroneously concentrated on the claimant's ability to get on with people known to him, without considering his ability to function socially 'outside a highly structured environment' and to interact with strangers. Ability to interact with strangers was a relevant consideration even where the claimant was a child (paragraphs 31-33). Overall, the tribunal had erred by failing to apply R(DLA) 1 /00 correctly: the judge held that 'what is required for the purpose of section 12(5) is a holistic assessment of both intelligence and social functioning together with a recognition that the same evidence may satisfy the test for severe impairment of intelligence and of social functioning' (paragraph 35).

Summary

The claimant was a Polish national who came to the UK to join her Polish father, who was here as a worker. She subsequently became estranged from him and was taken into care. After leaving care she claimed income support as a full-time student who was estranged, but was refused on the basis that she failed the right to reside test. She appealed on the basis that at the relevant time she had the right to reside as a family member of a European worker. She was too distressed to attend the appeal hearing but was represented. The First-tier Tribunal dismissed the appeal, holding that the representative could not give evidence (otherwise not before the tribunal) about the father’s last known address and place of work in the UK, and that the claimant was not a family member.

Judge Ward allowed the claimant’s further appeal and substituted a decision that the claimant did have the right to reside as a family member. The tribunal had erred in not observing its inquisitorial function. The judge agreed with the Secretary of State who submitted that the tribunal had not dealt with the issue of the family member argument adequately, as the tribunal could have directed the Secretary of State to provide the relevant information. That was especially so given the facts of the case, Judge Ward saying: ‘the circumstances of a young foreign national, estranged from her father, recently having left care and apparently too distressed to attend the hearing, were such as to make it incumbent on the tribunal to avoid unnecessary formality, respond flexibly and ensure her effective participation in the proceedings in her absence by obtaining the evidence necessary…’ (paragraph 5). Also, the tribunal was probably wrong in the way it approached the question of evidence from the representative, given that this was likely to be capable of objective verification and not one where there was any risk of the evidence being compromised if was mediated through a representative.

In the event, the Secretary of State had subsequently been able to obtain the father’s national insurance contribution record and conceded that the father was indeed a ‘worker’ at the relevant time. Therefore the judge substituted a decision that the claimant had a right to reside as a ‘family member’ (paragraph 6).

Decision in brief

Tribunal obliged to explain in its reasons why it decided to proceed in those circumstances (paragraph 14) - absence of ESA 50 from papers did not necessarily prevent tribunal from considering appeal given tribunal's explanation that it could use the medical report and question the claimant at the hearing (paragraph 18)- delay of 15 months between date of decision and date of hearing did not give a real cause for concern and so no breach of Article 6 European Convention on Human Rights (HJ v SSWP [2009] UKUT 4 7 (AAC) applied) (paragraphs 25-26)

Decision in brief

This does not apply to incorrect/misleading general information on the official (GOV.UK) website - claimant thought on basis of information there that she could only claim online or by telephone and could not do so - but the requirement that the incorrect information was provided 'by an officer of' the DWP is to refer to 'the situation where a claimant is given information by a DWP officer as part of some specific interchange or transaction relevant to their personal circumstances' (paragraph 17)

Summary

This decision of a three-judge panel of the Upper Tribunal arises from a split in the caselaw about the interpretation of ‘social engagement’ in the mental health test of the work capability assessment (WCA). Ability regarding ‘social engagement’ is a feature of Activity 16 of the test for limited capability for work, and of Activity 13 of the test for limited capability for work-related activity. In KB v SSWP [2013] UKUT 152 (AAC), Judge Parker had held that ‘social engagement’ referred to any social engagement, including that with, for example, doctors and lawyers – ie, in business or professional contact. However, in the later AR v SSWP (ESA) [2013] UKUT 446 (AAC), Judge Ward disagreed with that, holding that ‘social engagement’ did not refer to contact for business or professional purposes, but rather was limited to that which was characterized by friendliness, geniality or companionship with others.

Mr Justice Charles, Judge Warren and Judge Rowland held that Judge Parker was correct in holding that in this context the word ‘social’ was simply a reference to ‘with other human beings’ (paragraph 28) – ie, that the engagement under consideration could include that for business and professional context. However, the nature and extent of the ‘engagement’ then had to be assessed and correctly applied. By way of background, it was accepted that the words involved were ordinary ones in common usage without precise meanings, and that it was important in such cases to look at the whole of a statutory definition with regard to the ‘underlying legislative purpose’ (paragraphs 5-9). That involved an assessment for the statutory purposes of the WCA, which was ‘to assess whether a person is able to engage with others for the purposes of work’. The panel agreed with comment of Judge Wikeley at paragraph19 of AS v SSWP (ESA) [2013] UKUT 587 (AAC) that the WCA activities and descriptors ‘do not exist in some sort of artificial or parallel universe, entirely divorced from the real world of work. They have to be applied on their own terms, but understood against the backdrop of the modern workplace’ (paragraph 16). Thus, in the present decision, the test of social engagement introduced ‘elements of reciprocity, give and take, initiation and response’ (paragraph 32).

In applying that, it was open to a decision maker to base his decision on an example or examples chosen from a wide range of situations (paragraph 34). The decision-making process will involve the finding of relevant facts (ie, regarding the social engagement which can or cannot be undertaken) and then the application of ‘value judgements’ which involve ‘addressing whether the contact with other people has the necessary nature and quality’, considering in each case ‘how the nature and quality of the communications and behaviour would impact on the ability of the individual to work and so whether or not it would be an effective barrier to him working’ (paragraphs 38-39). In the individual cases in the present decision, in one the First-tier Tribunal was considered to have erred in ‘not sufficiently addressing the quality of contact’ (paragraph 45); whereas in the other case, although the tribunal should have expressed itself in different terms, it was entitled to reach the conclusion it did ‘by reference to the claimant’s evidence to them and the manner in which he gave it’ (paragraph 58).

Summary

The claimant was subject to a 14 per cent reduction in her eligible rent on the basis of alleged under-occupation of her home – ie, because she was considered to have too many bedrooms under the so-called ‘bedroom tax’ rule at regulation B13 of the Housing Benefit Regulations 2006 (SI 2006 No.213). Her argument that the alleged spare bedroom should in fact be allowed because she required overnight care was rejected by the First-tier Tribunal. That was because the tribunal considered that she did not satisfy the requirement in the definition of a ‘person who requires overnight care’ at regulation 2(1) that the overnight carer was someone who stayed ‘regularly’ at her house, because the evidence was the stays were not at reasonably even intervals: the evidence was that the overnight carer was needed ‘on occasion’ and ‘when needed’.

Judge Rowland allowed the claimant’s further appeal and substituted a decision that her eligible rent was not to be reduced under regulation B13. The tribunal had erred in its definition of the word ‘regularly’ as it applied in this context. Rather than meaning at reasonably even intervals, the judge considered that ‘the word can also be used as a synonym for “habitually” or “customarily” or “commonly” and this seems a more sensible understanding of the word in the context of this legislative provision…’ (paragraph 13). Further, the judge said the test was whether the need for an overnight carer ‘arises often and steadily enough to require a bedroom to be kept for the purpose’, and that there was no requirement that the carer must be required on the majority of nights. That may be why the word ‘regularly’ was used: ‘it does not mean the same as “normally” or “ordinarily”. A bedroom may be required even if the help is required only on a minority of nights’ (paragraph 14).

Also, the judge rejected arguments by the local authority that an additional bedroom was not required because the carer could sleep in a room other than a bedroom, and that the fact that the claimant was entitled only to the middle rate of the care component of DLA showed that overnight care was not required.

On the facts, the carer slept in a bedroom and that the fact that portable beds could be erected elsewhere did not mean that there was not an additional bedroom, and the possibility of conversion of another room did not mean it was unreasonable for the carer to use the existing bedroom (paragraph 12). Regarding the rate of the DLA care component award, that could not be determinative of whether overnight care was required. There were several reasons why someone who regularly needed overnight care might not be getting the high rate, and the basis of the DLA award ‘may therefore be relevant evidence’ but cannot be conclusive’ (paragraph 18).

Summary

In this decision Judge Jacobs decided that a self-employed person does not have a right to reside as a primary carer of a child in education. In so deciding, he applied the decision of the European Court of Justice (ECJ) in Secretary of State for Work and Pensions v Czop and Punakova [2012] EUECJ C-14 7 /11 and C-148/11 (6 September 2012) (Bulletin 230, p11).

The claimant was Norwegian. She came to the UK with her children who entered school on her arrival. She worked as a cleaner for a shop owner and, on the advice of HMRC, was registered as self-employed. Her claim for IS as a lone parent was refused on the basis that she did not have a right to reside. Her appeal to the First-tier Tribunal was dismissed.

Judge Jacobs dismissed the claimant's further appeal. If the claimant had been a 'worker' (ie, an employed person), she would have had a right to reside as the primary carer of her children who were in education (paragraph 11 ). But on the facts of this case (which were somewhat equivocal as to whether the claimant was a worker or a self-employed person), the claimant was self-employed (paragraph 19). Regarding that situation, the judge considered himself bound by the decision in Czop and Punakova. The ECJ in that case had not actually answered the question of whether the claimants had a right to reside because of concessions made by the United Kingdom regarding their cases. But the Court did decide that the child of a self-employed person did not have a right to education in the UK, as the relevant provision, at Article 12 of EC Regulation 1612/68, granted such a right only to the child of a worker. It therefore followed that the claimant in the present case could not have a right to reside based on such a right, meaning she could not have a right to reside as a primary carer of a child in education (paragraphs 30-31). The judge considered, but could not accept, arguments that this result was unlawful as it would deter the freedom of movement of self-employed people, and that it constituted discrimination against the self-employed. That was primarily because he considered that to accept such arguments would be 'contrary to the reasoning in Czop' and to 'bypass the clear and precise wording of Article 12 of Regulation 1612/68. I am bound by Czop to decide that that is not permissible' (paragraphs 36-37).

Note: permission to appeal to the Court of Appeal has been applied for. 
 

Summary

The claimant had severe brain injury following a road traffic accident which occurred when he was aged 32. He was refused the high rate of the mobility component of DLA. His entitlement depended on him satisfying the ‘severe mental impairment route’. The tribunal held that he did not satisfy the necessary condition of ‘arrested or incomplete physical development of the brain’ as applying the standard authority in R(DLA) 2/96, the human brain was fully developed before an adult reaches the age of 30.

Judge Wikeley held that the tribunal erred in law because it applied what he called the ‘age 30 cut-off rule’ (paragraph 3). The conditions for satisfying the severe mental impairment route to the high rate of the mobility component are set out in regulation 12(5) of the Social Security Disability Living Allowance Regulations 1991, SI 1991 No.2890. The requirement is that the claimant ‘suffers from a state of arrested development or incomplete physical development of the brain, which results in severe impairment of intelligence and social functioning.’ R(DLA) 2/96 had established the ‘age 30 cut-off rule’ and been accepted as the standard authority; but Judge Wikeley held that in the light of more recent scientific advice, that was no longer good law, and specifically that in his view ‘R(DLA) 2/96 should no longer be followed in so far as it holds or implies that regulation 12(5) embodies the age 30 cut-off rule’ (paragraph 41).

The reason for that was expert evidence in the form of a report (‘Human brain development: When does the human brain stop developing?’) by Professor Sarah-Jayne Blakemore, Royal Society Research Fellow and Professor of Cognitive Neuroscience at University College London. Her report was accepted as authoritative and expert by the Secretary of State (paragraph 30). The report holds (contrary to the evidence on which R(DLA) 2/06 was based) that the human brain retains a degree of ‘experience dependent plasticity throughout adulthood’ (eg, through learning of new skills) which may involve ‘physical development of the brain well into adulthood’ (paragraphs 34–6). Also, Professor Blakemore’s report provided evidence that ‘the physical volume of the brain is changing at least into the fourth decade of life, and perhaps into the 50s, with an increase in white matter and a decrease in grey matter’. As a result, the proposition that the brain attained full development before the age of 30 could no longer be maintained (paragraph 37). Professor Blakemore’s evidence was that the brain will have ceased developing in terms of grey and white matter ‘by the thirties or early forties in most people’ (paragraph 40). Attempting to summarise, the judge said, ‘it may not be unreasonable to say that experience-dependent plasticity occurs at the margins, and so a tribunal may reasonably focus on physical development of the brain in terms of white and grey matter. Obviously it will be wholly unrealistic to identify the specific age at which such changes cease in a particular individual…however a tribunal is entitled to apply the balance of probabilities’. In the present case the claimant was aged 32 at the time of his accident, which fell ‘very much toward the bottom end’ of the age range identified by Professor Blakemore, and so ‘it would be reasonable to say that the Appellant’s brain had not completely developed’ (paragraph 41).

Comment from CPAG

Previous refusals of the high rate based on the age 30 cut-off rule in R(DLA) 2/06 could now be revisited on supersession (where some DLA is in payment). Any arrears are likely to be limited by application of the ‘anti-test case rule’ at s27 Social Security Act 1998. An added complication is that in PIP transfer areas, a request to revisit a DLA award on this basis may well trigger transfer to PIP.

Summary

The claimant was a child aged 12. At the First-tier Tribunal, the tribunal decided that, applying a Practice Direction issued by the Senior President of Tribunals, a child should only be required to give evidence if the evidence was necessary and her/his welfare would not be prejudiced. The tribunal considered that oral evidence from the claimant's mother would be sufficient, and that it would not be appropriate for the claimant to listen to adults discussing her problems, and that her presence might inhibit discussion of the issues. The appeal was dismissed.

Judge Jacobs set the decision aside and remitted the case to a new tribunal. In so doing, he considered the tribunal's decision that the claimant should not be allowed to give evidence and should not be allowed to be present in the tribunal room. That involved consideration of a reported decision on the approach to child witnesses, R(DLA) 3/06, and the Practice Direction relied on by the tribunal, which was issued on 30 October 2008. The judge held that the tribunal had erred in a number of ways, including making no attempt to find out the claimant's views on giving evidence, or to how its concerns might be alleviated by the manner in which the claimant gave her evidence, contrary to R(DLA) 3/06, and in relying on the part of the Practice Direction that dealt with requiring a witness to attend, when in this case there was no question of compulsion (paragraph 21). Also, however, the tribunal erred in failing to take account of 'the claimant's right to autonomy and to take part in decision making about her entitlement to benefit', thus considering only her welfare and so failing to consider that 'denying a child the right to participate can be harmful in itself' (paragraph 22).

In so holding, the judge considered that R(DLA) 3/06 and the Practice Direction now had to be applied in the context of subsequent caselaw from the family courts, namely Mabon v Mabon [2005] Fam 366 and RCW (Children) (Care Proceedings: evidence) [2010] WLR 701 (paragraphs 12-14). Applying the caselaw from the family courts, the judge held that although R(DLA) 3/06 remained correct in pointing out concerns about child welfare and reliability of evidence in child witness cases, the guidance given to tribunals at paragraph 58 of the decision failed to give proper significance to recognising the relevance of the maturity, understanding and wishes of the child (paragraph 17). Similarly, the Practice Direction, although still sound regarding the approach to requiring a child to give evidence, was potentially in conflict with the family cases regarding allowing a child to do so, in so far as it 'provides that a tribunal must decline to hear evidence from a child when it would prejudice the child's welfare'. Such conflict could be reconciled by taking account of the child's age, maturity and wishes in assessing the impact that giving evidence would have (paragraph 18)

Summary

The claimant lived in England, but in 2009 (having taken advice from the HMRC helpline about temporary absence) she took up self-employed work in Spain. Two of her children, aged 18 and 20, remained in her home. The claimant returned frequently from Spain so as to ensure that she was not absent for more than eight weeks, staying in her house for a couple of days each time, or longer at Christmas and Easter. She eventually returned to the UK, started work here in August 2010, and stayed thereafter. However, although she was awarded child tax credit for the whole of the tax year 2010/11, she was refused working tax credit (WTC) for the period that she was working in Spain. The First-tier Tribunal dismissed her appeal on the basis that she could not be treated as resident in the UK while living and working in Spain – although the judge was unaware of the claimant’s returns to the UK during that period.

Judge Rowland allowed the claimant’s further appeal, and remitted the case to a new tribunal. It was arguable that the claimant remained ordinarily resident in the UK while she was working in Spain, and that she remained so under a rule (at regulation 4(1)(a) of the Tax Credits (Residence) Regulations 2003, SI 2003 No.654) that allowed such a person to be treated as being in the UK during the first eight weeks of a temporary absence (paragraph 5). Also, regarding HMRC’s submission to the First-tier Tribunal that for WTC employment had to be in the UK, the judge could see nothing in the relevant rule (at regulation 4 of the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002, No.2005) that the work had to be in the UK.

While working in Spain, the claimant was ‘doubtless resident in Spain and quite probably ordinarily resident there’, but it did not follow that she therefore could not also have been ordinarily resident in the UK (paragraph 15). The judge did not accept HMRC’s argument that because the claimant’s periods of presence in the UK appear to have been only ‘visits’ and were for holidays and meeting the requirements of regulation 4(1)(a), they cannot be treated (as required as part of the accepted approach to ordinary residence) as having been for the ‘settled purposes’ of her life. The point that it did meet this requirement was, for the judge, at least arguable (paragraph 16). Had the First-tier Tribunal judge been provided with all the relevant documents relating to the case in their possession (as required under rule 24(4)(b) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 No.2685) he may not have fallen into the error of treating the claimant’s case as hopeless. That he did not have all the relevant information was a procedural defect that gave rise to unfairness, especially as the claimant was unrepresented (paragraph 20).

Summary

In this decision the European Court of Justice (ECJ) held that a woman who had stopped work in the late stages of pregnancy retained her worker status. In so holding, it in effect disapproved, on referral from the UK Supreme Court (Bulletin 231, p10), earlier domestic decisions to the contrary, though the case does now return to the Supreme Court.

The claimant was a French national who came to the UK and worked mainly as a teaching assistant for 11 months, before commencing studies. Later (following time as a student and registering with an employment agency), she did some work in nursery schools. However, she stopped that work on the grounds that, being six months pregnant, it was too strenuous for her. Her claim for income support was rejected on the grounds that she had lost her status as a worker and did not have the right to reside. Her case ended up before the UK Supreme Court, who made a reference to the ECJ asking, in essence, whether under EU law a woman who gives up work, or seeking work, because of the physical constraints of the late stages of pregnancy and the aftermath of childbirth, retains the status of 'worker'.

The ECJ answered in the affirmative. Specifically, Article 45 of the Treaty on the Functioning of the European Union 'must be interpreted as meaning that a woman who gives up work, or seeking work, because of the physical constraints of the late stages of pregnancy and the aftermath of childbirth retains the status of 'worker', within the meaning of that article, provided she returns to work or finds another job within a reasonable period after the birth of her child' (paragraph 46). In order to decide whether that latter period was reasonable, the national court should 'take account of all the specific circumstances of the case in the main proceedings and the applicable national rules on the duration of maternity leave... ' (paragraph 42).

Note: see also the article in Bulletin 241, p6.