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Summary

The claimant had been working but became ill. She got SSP and her entitlement to working tax credit (WTC) continued, as she was treated as still in qualifying remunerative work. But when her SSP finished after 28 weeks, she moved on to ESA and HMRC terminated her entitlement to WTC. The claimant appealed to the First-tier Tribunal, arguing that her entitlement to ESA meant that she could be treated as being in qualifying remunerative work for a further 28 weeks. The tribunal allowed the appeal.

Judge White allowed the further appeal of HMRC, and substituted a decision that the claimant was no longer entitled to WTC on the expiry of her 28-week entitlement to SSP. In so holding, the judge had to construe regulation 6 of the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002, SI No.2005. That provides that a claimant can be treated as being in qualifying remunerative work (and so entitled to WTC) for up to 28 weeks while s/he is paid, among other benefits, both SSP and ESA. However, the judge rejected the argument that that meant there could be two consecutive periods of 28 weeks – ie, one while paid SSP followed by another while paid ESA.

He considered the ‘underlying purpose’ of regulation 6 ‘to be to regard a person as meeting the conditions of entitlement to working tax credit for a period coterminous with the maximum period for which statutory sick pay is paid; that is 28 weeks’ (paragraph 16). Also, the judge considered that the effect of regulation 6(3) was to require ‘the person to be actually in qualifying remunerative work “immediately before the beginning of the period” as precluding the subsequent period when the claimant was in receipt of an employment and support allowance from starting a further 28 week period of entitlement to working tax credit…’(paragraph 20). Similarly, he considered that the WTC four- week run-on did not apply after the 28 weeks on SSP, ‘since the requirement is that the four week “run-on” period…must follow “immediately” from the person’s cessation of work or reduction in hours’ (paragraph 22).

Comment from CPAG

It should be noted that regulation 6(3) does not itself require the claimant to have ‘actually’ been in work immediately before getting ESA; that is the judge’s interpretation. Arguably, closer attention could have been paid to whether being ‘treated as’ being in work immediately before getting ESA (ie, while on SSP) could count, not least because that is widely understood to have been HMRC policy, at least until recently. In connection with that, it could also have been noted that regulation 4, which provides the definition of when someone actually in work is in ‘qualifying remunerative work’, itself deems claimants who satisfy the condition to be ‘treated as’ engaged in qualifying remunerative work.

Summary

The claimant was receiving child tax credit as a single person. The HMRC decided that she had been overpaid as she was living with another person as husband and wife. That decision was made substantially on the strength of the alleged cohabitee’s ‘financial footprint’ as revealed in reports from a credit reference agency (Equifax) together with HMRC’s own records, and after a telephone call with HMRC in which the claimant said the alleged cohabitee merely used her address as a correspondence address. The claimant appealed and provided further information when requested by HMRC, including some she had already provided before. The First-tier Tribunal dismissed the appeal in the claimant’s absence, even though she had arrived late at the venue and asked to be allowed to give evidence.

Judge Rowland held that, on the facts of the case, the tribunal erred in failing to consider the claimant’s case when she arrived late, and in giving ‘wholly inadequate’ reasons for its decision (paragraphs 17–18). There were a number of defects in the HMRC's approach to its decision and submission to the tribunal, which the tribunal, partly because it refused to take evidence from the claimant, failed to address. Judge Rowland said, ‘There is no doubt that the evidence obtained by HMRC raise a number of questions for the claimant to answer…However, what is striking about this case is the complete failure of HMRC to ask the necessary questions before making its decision. Realistically, that probably required HMRC to interview the claimant and put to her the inferences it drew from the Equifax reports, rather than ask questions in writing, but it scarcely attempted even the latter…’ (paragraph 6).

The HMRC also conceded to the Upper Tribunal that it had not provided to the tribunal information and documents provided by the claimant. That was a breach of its duties to the tribunal and left it with no way of knowing whether it had all the relevant evidence from the claimant (paragraph 8). Had the claimant been able to give evidence at the tribunal, the ‘defects’ in the HMRC approach could ‘probably’ have been cured (paragraph 9).

Note from CPAG

For more on HMRC and tribunal decisions in such cases, see the article on p6.

Summary

The claimant was entitled to an indefinite award of the high rate mobility component of DLA. Following a report in October 2013 of a change in circumstances, the DWP ‘invited’ him to claim PIP. In March 2014 it was decided that the claimant was entitled to PIP at the enhanced rate of both the mobility and daily living components; however, his entitlement was not to begin for approximately one month after the PIP award decision and was for a fixed term of three years. The claimant appealed to the First-tier Tribunal. However, following an application by the Secretary of State, the tribunal struck the appeal out, on the basis that the start date for the PIP award was correctly fixed and that the tribunal ‘felt’ that a fixed award was appropriate, that the DLA indefinite award was based on different criteria and therefore that the decision was correct.

Judge Mitchell allowed the claimant’s further appeal in part. The tribunal had erred by giving inadequate reasons for fixing the period of the award at three years, and in striking the appeal out on that basis. The tribunal also erred in striking this part of the appeal out without considering whether the claimant had a ‘reasonable prospect of success’. However the tribunal did not err in striking out the part of the appeal that related to the start date of the PIP award. That date was fixed by regulation 17 of the Personal Independence Payment (Transitional Provisions) Regulations 2013, SI No.387. There was no discretion to use a different start date, and that date, fixed by reference to the date of the PIP award, not the date of claim, had been correctly identified by the decision maker and endorsed by the tribunal (paragraphs 36–38).

Regarding making the award for a fixed period of three years, the tribunal had erred by giving inadequate reasons. Simply to rely on the changed legislation was an insufficient reason, and the tribunal needed to explain why an indefinite award should not apply and why a three-year period was appropriate (paragraphs 51–53). There was no doubt that there was a right of appeal about a decision not to make an indefinite award and, where a fixed-term award is made, about the period of the award (paragraph 76). However, in this case the tribunal (a judge sitting alone) was considering an application for striking out for no reasonable prospect of success, and only had jurisdiction regarding that question. The tribunal, in fact, named no finding about that and strayed into deciding the substantive matter of the duration of the award, so making an additional error (paragraph 86). The judge set the striking out of that part of the appeal aside and, as he considered that on the available evidence it could not be said the claimant had no reasonable prospect of success, refused himself to strike it out. The question of whether there should be an indefinite award or, if not, the length of a fixed award was therefore remitted to a new tribunal (paragraphs 88–89).

Summary

The claimant had been entitled to DLA. He contacted the DWP, but exactly what he said in this communication was disputed between the claimant and the DWP. The claimant alleged that all he did was to raise a general query about the DLA to PIP transfer process and did not, as alleged by the Department, report a relevant change of circumstances. In any case, it was taken as such a report and the claimant was then invited to claim PIP, which he did. He was not awarded any PIP, a decision which was upheld by a subsequent First-tier Tribunal.

Judge Mitchell dismissed the claimant’s argument that the tribunal erred in law in proceeding on the basis that the claimant had reported a change of circumstances and failing to deal with his argument to the contrary. The Secretary of State had a general power to invite a person receiving DLA to claim PIP, and it was not actually required that the claimant had ‘triggered’ the exercise of this power by, for example, reporting a change of circumstance. Specifically, under regulation 3(1) of the Personal Independence Payment (Transitional Provisions) Regulations 2013, SI No.387, the Secretary of State had a ‘duty’ to invite a DLA recipient to claim PIP where s/he reports such a change; however, there was also a ‘power’ to do so at any time after 27 October 2013. Once the notice (of an invitation to claim PIP) was issued under regulation 3(1), the claimant ‘became a transfer claimant and was on a legal conveyor belt towards termination of his DLA award’. The claimant could not have succeeded on this point, and so the tribunal’s failure to deal with his argument could not have been a material error of law (paragraphs 21–22).

The tribunal had erred, however, in irrationally treating the claimant’s GP evidence that the claimant had ‘four days out of seven bad’ as the basis of a finding that the claimant had more good days than bad (paragraph 25). The case was remitted to a new tribunal for rehearing.

Summary

The claimant attempted to make an online claim for JSA in October 2013. However, she never received any confirmation of the claim and, in the event, it turned out that there was no evidence that the claim had been accepted on the official DWP computer system. She wrote to her local jobcentre in 2014 (the Secretary of State said it was in February but the claimant argued that it was earlier) to inform it of the failure of the online claim. Following a letter from the DWP that no such claim had been received, she submitted another online claim in March 2014, which was successful. But her date of claim was said to be in March 2014, and the claimant’s appeal to the First-tier Tribunal was dismissed.

Judge Mitchell held that the tribunal had erred in law, but only to the extent that it had failed to consider whether the date of claim should have been fixed at the date in February 2014 when the claimant wrote to the jobcentre, on the basis that should have been treated as a notification of an intention to make a claim. The claimant’s argument that her date of claim should have been treated as the date (in October 2013) when she first attempted to claim JSA online was dismissed.

Rules on use of ‘electronic communications’ for a number of benefits, including JSA, were found in Schedule 9ZC of the Social Security (Claims and Payments) Regulations 1987, SI No.1968. Under paragraph 4(3), information shall not be taken to have been delivered to an official computer system ‘unless it is accepted by the system to which it is delivered’. Under paragraph 6(1) and (2), there is a presumption of delivery of a claim where it has been recorded on the official computer system, and presumption of non-delivery where it has not been so recorded. The judge was unable to see how the claimant could rebut the presumption of non-delivery, and although the tribunal had technically erred in not having reference to the correct rules, it would have arrived at this conclusion even had it done so (paragraphs 30–31). However, the tribunal also erred in not considering that the claimant’s letter of February 2014 was a notification of an intention to claim JSA, in which case the date of claim was fixed at the date of such notification under regulation 6(4A). The judge remitted to a new tribunal the question of exactly when in 2014 the claimant had notified her intention to claim, as she had argued that she had written before the February 2014 letter referred to by the Secretary of State (paragraph 36).

Summary

The claimant had a history of drug abuse and dependency involving ‘street drugs’, including current use of heroin and valium. He was scored no points in his work capability assessment. In his appeal to the First-tier Tribunal, the claimant argued for points under Activities 14 (coping with change), 16 (coping with social engagement) and 17 (appropriateness of behaviour with other people). He also argued that, if he scored insufficient points to satisfy the assessment, he fell with regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008, SI No.937 – ie, that because of his condition there would be a ‘substantial risk’ to his health or that of another person were he to fail the assessment. The tribunal dismissed his appeal, finding that his incapacity was insufficient to score points under the descriptors, and that regulation 29 did not apply as the claimant ‘did not have any physical or mental health limitations that would prevent him from working’.

Judge Knowles QC allowed the claimant’s further appeal and remitted the case to a new tribunal. Although the tribunal’s findings and reasoning regarding the descriptors did not err in law, the tribunal had erred by giving inadequate reasons for its decision regarding regulation 29 (paragraphs 44 and 54). The possibility of the claimant’s intoxication during work hours clearly could have implications for not only the claimant’s health but also that of fellow employees and members of the public (paragraphs 50–51). More generally, evidence about the claimant’s drug use was important for the tribunal to consider in determining whether he was drug dependent and therefore suffering from a ‘specific disease or bodily or mental disablement’, and so capable of scoring points or satisfying regulation 29. The tribunal’s failure to do that meant the sufficiency of its reasoning was undermined (paragraphs 2 and 53).

Regarding ‘drug dependency’, the judge concluded that the factors pointing towards alcohol dependence set out in JG v SSWP [2013] UKUT 37 (AAC) also applied to drug dependence (paragraphs 3 and 31–32). JG was also authority for the proposition that alcohol dependency fell within the meaning of ‘specific disease or bodily or mental disablement’ as required by regulation 29 (paragraph 26). However, the criteria for diagnosing alcohol dependence cited in JG, taken from the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association (DSM-IV), has been superseded with effect from 18 May 2013 by DSM-V. That now addresses each specific substance (eg, opioids, which include heroin) as use disorders, rated as either mild, moderate or severe. In the present decision, Judge Knowles concluded that for a DSM-V diagnosis of substance use disorder to equate with the former DSM-IV dependency diagnosis, it must be rated as moderate or severe – ie, a rating of mild use is insufficient (paragraph 41).

Summary

The claimants were disabled children. One was a Ugandan national whose mother was granted refugee status in the UK and who joined his mother under family reunion provisions. The other was a Somali national who was herself a refugee in the UK. Both were refused DLA because they had not satisfied the ‘past presence test’ (PPT) of presence in the UK of at least 104 weeks out of the last 156, as provided for at regulation 2(1)(iii) of the Social Security (Disability Living Allowance) Regulations 1991 SI No.2890. On appeal, they argued that the PPT unlawfully discriminated against them contrary to Article 28 of EU Directive 2004/83/EC (‘the Qualification Directive’). Their appeals to the First-tier Tribunal were refused, the tribunal holding that the discrimination was justified, as the PPT was a rational means of achieving the aim of directing the benefit to long-term residents of the UK.

Judge Markus QC allowed the claimants’ further appeals and substituted a decision that, with the PPT disapplied to them, the claimants otherwise satisfied the conditions for residence and presence in Great Britain. The PPT in its application to the claimants constituted unlawful discrimination both under Article 28 of the Qualification Directive and under Article 14, read with Article 1 of Protocol 1 of the European Convention on Human Rights (ECHR).

Article 28 of the Qualification Directive provides that European Union (EU) member states ‘shall ensure that beneficiaries of refugee or subsidiary protection status receive…the necessary social assistance, as provided to nationals of that Member State’. The judge held there was no discretion as to whether to comply with the Article (paragraphs 23–26). DLA was ‘social assistance’ within Article 28, which was ‘intended to embrace a wide range of welfare benefits so as to ensure that refugees and their families are treated equally within the benefits systems of member states’ (paragraph 40). Regarding discrimination, there was ‘no doubt that the PPT places refugees and their families at a particular disadvantage compared to UK nationals’ (paragraph 67). The judge rejected the argument that the correct test for justification was whether the PPT is ‘manifestly disproportionate’. Applying the decision of the Supreme Court in R (Lumsdon) v Legal Services Board [2015] 3 WLR 121, the PPT was directly concerned with a fundamental freedom of EU law (namely, freedom of movement), and was in any case concerned with limiting of equal treatment required by a non-discretionary Directive – therefore, the discrimination required a particularly close level of scrutiny (paragraphs 84–89). Although the aim of establishing a sufficiently close link with the UK was a legitimate one, the government had not established that the application of the PPT to refugees was a proportionate means of achieving that aim (paragraph 91). The Secretary of State had produced no evidence of having considered the position of refugees in this context, and had not shown that there would not have been a less restrictive way of achieving the official aim (paragraphs 100–101).

Regarding Article 14 of the ECHR, if followed from the reasoning about the Qualification Directive that the PPT discriminates against refugees and their family members including because ‘…the test fails to recognise that refugees are in a materially different situation from others to whom it applies’ (paragraph 107). In the context of Article 14, the test for whether the discrimination was justified was whether it is ‘manifestly without reasonable foundation’. For the same reasons as the judge gave regarding the Qualification Directive, this test was not satisfied and so ‘the application of the PPT to refugees is not justified in the context of Article 14’ (paragraphs 108–110).

Comment from CPAG

At time of writing, it was not known whether the Secretary of State intended to appeal. The claimants in the case were children; however, there would appear to be no reason why it should not also apply to adult refugees.

Decision in brief

Social support is capable of including prompting - but social support can only be from 'a person trained or experienced in assisting people to engage in social situation' -that can include experienced friend or family member - if such a qualified person is required to be present or available to allow the claimant to engage with other people, and only a qualified person would be acceptable, descriptor 9c will apply

Decision in brief

No automatic link between the two - Activity 7 measures an ability to vocalise and understand information whilst Activity 9 measures an ability to function in a social environment- but no limit to the type of impairment to which Activity 9 refers - so for example a claimant who because of hearing loss satisfies 7c may, depending on the facts, also satisfy 9c

Decision in brief

It is still necessary for the claimant to be able to prepare and cook the food from fresh ingredients - client who cannot cut up fresh food will satisfy descriptor 1 e 'needs supervision or assistance to be able to prepare or cook a simple meal '

Decision in brief

'A mere summary of a decision without telling the litigant when the decision was made or the name of the judge making it is not consistent with an open and transparent decision-making process' - 'in any cases where a judge refuses an application either on procedural or substantive grounds the applicant must know that the matter has been judicially considered, the name of the person who has considered it and, albeit briefly, why the decision was made'

Summary

In this decision, the Supreme Court, by a 5:2 majority, dismissed appeals by the claimants that the cap, in its revised form, unlawfully breached their human rights, via breaches of the European Convention on Human Rights (‘the Convention’). The claimants were lone- parent mothers and their children – in the DA cases, the children being aged under two; in the DS cases, the children all aged two or above. They argued that the cap was in breach of Article 1 of Protocol 1 of the Convention (right to possessions), Article 8 (right to respect for private and family life) and Article 14 (prohibition of discrimination).

Giving the lead judgment, Lord Wilson first noted that there was no dispute that the claimants’ entitlement was within the ambit of Article 1 of Protocol 1 (paragraph 17). Further, he held that the cap was within the ambit of Article 8, and that the claimants all had a ‘status’ for the purpose of their Article 14 argument (paragraphs 37 and 39). However, in DS it was ‘already obvious’ that discrimination against lone parents of children of school age was justified, so the court instead addressed their ‘fall-back complaint', that the cap violated the Convention rights of lone parents with children aged under five, and children of lone parents of that age (paragraph 45). Regarding Article 14, the test of justification regarding any rule about entitlement to benefits was whether it was ‘manifestly without reasonable foundation’. There was ‘no future doubt’ about that being the correct test (paragraph 65). Regarding Article 14 read with Article 8, it was right to consider, as an aid, Article 3 of the United Nations Convention on the Rights of the Child (UNCRC), in the context both of the rights of the children themselves and their parents (paragraphs 66 –78).

However, the cap did not breach the claimants’ Convention rights. Parliamentary materials showed that the government did evaluate the likely impact of the revised cap on lone parents with young children, including taking account of the best interests of the children, so there was no breach of the UNCRC (paragraph 87). Also, treating the claimants in the same way as all others subject to the revised cap was not ‘manifestly without reasonable foundation’. The government’s policy aims of promoting work were a ‘reasonable foundation’ for the rule, particularly when accompanied by provision of discretionary housing payments which were ‘just about adequate’ in addressing the particular hardship the cap may cause to the claimants (paragraph 88).

Note

Lord Wilson added: 

‘These appeals were rightly brought. The arguments raised in them have been of such weight as to attract this court’s most careful and sympathetic consideration; and they have led two members of the court to enter a powerful dissent from the majority’s dismissal of the appeals’ (paragraph 91).