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Decision in brief

Entitlement to carer’s allowance does not constitute worker or self-employed status for purposes of Article 7(1)(a) EC Directive 2004/38/EC – although ‘worker’ has an autonomous EU meaning and must be interpreted broadly, the concept is not without limits and in particular only covers those who ‘pursue or are desirous of pursuing an economic activity (paragraph 12) – claimant was not by virtue of CA entitlement ‘a person performing services in return for which he receives remuneration’, with regard to the CA qualifying conditions, other conditions of entitlement and amount of payment (paragraphs 15–19)

Summary

This case concerned an appeal by the local authority against a decision that an accommodation provider, Salisbury Independent Living (SIL), met the definition of a 'voluntary organisation' in the HB rules, and that therefore the claimants occupied 'exempt accommodation'. SIL is formally a not-for-profit organisation that leased property for renting from a company ('SMS'). That company had another connection to SIL in that a director of SMS had also previously set up SIL and was now a consultant to it, and he stood to gain through his directorship of SMS and consultancy with SIL. The First-tier Tribunal had held that SIL was a voluntary organisation, and the local authority appealed to the Upper Tribunal.

Mr Justice Charles dismissed the appeal. On the facts of this case, the tribunal had not erred in holding SIL to be a voluntary organisation for the purposes of exempt accommodation. In so holding, the judge was required to consider the definition of 'voluntary organisation' in that context, for which there was no previous caselaw authority. 'Voluntary organisation' was defined in regulation at regulation 2 of the Housing Benefit Regulations 2006, SI No.213 as 'a body, other than a public or local authority, the activities of which are carried on otherwise than for profit'. The local authority relied heavily on official guidance which included that a voluntary organisation, 'does not have arrangements with any person, organisation or body formally or informally to make payments or dividends, quasi dividends or disguised profits from its operations or in selling, disposal or winding up it is assets or operations' (cited in paragraph 12). It was argued that for an organisation to be a voluntary organisation, it must not be possible for any person or organisational body to make profits from its activities. It was accepted that arrangements between the accommodation provider (ie, SIL in this case) and an independent third party that could profit were not caught by this approach, but that (as here) where there was a close connection with the third party, the possibility that that third party could profit meant the provider could not be a voluntary organisation. That, it was argued for the local authority, was so even where (as expressly conceded here) there was no question of any allegation of lack of commerciality or bona fides in the relationship or any allegation of disguised profits (paragraphs 17-24).

The judge dismissed the arguments of the local authority. The starting point was that it was axiomatic that whether an organisation was a voluntary organisation 'falls to be decided by the application of the relevant statutory definition to the facts of the given case' (paragraph 27). Also, it was right to consider the definition 'against the backdrop of the general reality of personal and commercial life' (paragraph 29). Taking that approach, the judge considered that it was obvious that any third-party organisation that the accommodation provider entered into a relationship with would seek to make a profit, and Parliament could not have intended that in all such cases the provider could not therefore count as a voluntary organisation. If followed that the official guidance on that point was 'simply wrong' (paragraphs 38-9).

Further, the attempted refinement of that position to apply it to cases of close connection between the provider and the third party was also wrong. For the judge, as soon as one recognised that a provider can enter into arrangements with third parties that have separate legal identities and still remain a not-for-profit organisation itself, the local authorities' argument was 'doomed to failure on the basis that it fails to have any or any proper regard to the realities of commercial life based on well-established principles of law' that Parliament must have taken into account when drawing up the rules. Parliament's primary intention was to ensure that HB continued to meet rents that reflected the bona fide and commercially based higher costs associated with specialist supported accommodation (paragraph 45-6, 48-9).

Regarding the activities of the accommodation provider itself (SIL, in this case), the judge recommended a sequential approach focusing first on the 'objects and powers' of the provider on the basis that they are complied with, on the accounts of the provider on the basis that they are accurate, and then on any other activities that might be relevant to either, or both, of the definition of exempt accommodation and any anti-abuse provision. In other situations, it may be relevant to look outside the constitution of the provider in determining whether it was providing exempt accommodation (paragraphs 75-6).

Comment from CPAG

This lengthy decision involves a detailed discussion of relationships between accommodation providers and third parties in the context of deciding when the provider may remain a 'voluntary organisation' for the purposes of exempt accommodation. Inevitably, it draws substantially on the individual facts. Those who need to ensure the definition is met in other cases are advised to give it careful scrutiny.

Summary

The claimant was subject to conversion of her claim for incapacity benefits to one for employment and support allowance. She failed the work capability assessment and appealed. The First-tier Tribunal dismissed the appeal. The record of proceedings showed that after about 35 minutes, after being asked about conflicting remarks in her evidence, the claimant left the tribunal room quickly without the aid of her walking stick which she threw to the ground. The claimant's representative was recorded as telling the judge that 'you did not treat her badly', and did not ask for an adjournment. The hearing proceeded. On the claimant's appeal to the Upper Tribunal, the representative said that the record of proceedings was disingenuous and accused the judge of bias by making offensive remarks. The Secretary of State referred to the claimant's actions as 'an adrenaline fuelled departure'.

Dismissing the further appeal, Judge Lane held that the tribunal did not err in law. The claimant was not denied a fair hearing. The basic principles of that were: (i) the tribunal must be independent and impartial; (ii) the parties must be afforded a broadly equal opportunity to present their case in circumstances which do not put them at a substantial disadvantage as regards the other party; and (iii) there must be compliance with the overriding objective at rule 2 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, (paragraph 9). Given the different descriptions of the incident, all Judge Lane felt able to conclude was that 'the appellant got het up and walked out'. She was unable to accept the representative's contention that the only explanation was that the claimant was not mentally strong enough to continue (paragraph 8).

The representative appeared to be arguing that the tribunal had shown bias and that it had behaved unjudicially. On bias, that was allegedly because the tribunal rejected an occupational therapist's report submitted by the claimant, and used the word 'bizarre' to describe the claimant's evidence about the problems she had with her hands. Judge Lane could not see that was made out. Firstly, 'a tribunal cannot be said to be biased because it rejects evidence, even if it does so robustly' (paragraph 13). Also, the tribunal gave extensive reasons for rejecting the evidence, which did include that the tribunal considered the report overly influenced by the claimant's own perceptions and that the claimant had exaggerated her problems to the therapist. For the judge, that was not irrational although could have been left unsaid; but, 'tactlessness s not, however, the equivalent of error' (paragraphs 13-14). Regarding the use of the word 'bizarre', that was a word often used by medics to describe symptomology which is 'physiologically improbable', and was a judgement the tribunal was entitled to make (paragraph 16). Regarding alleged unjudicial behaviour, the tribunal was inquisitorial and had to ask questions. The test of unfairness was not judged subjectively from the claimant's point of view, and the judge was satisfied that a fair-minded , independent observer (which is the correct viewpoint) would not consider that the tribunal had breached the rules of fairness (paragraphs 17-19). Neither was thefailureto adjourn unfair: the tribunal could not hear further evidence because the claimant left 'unjustifiably'; in the circumstances, it would have been a 'disproportionate use of judicial time and public money' to hold a further hearing (paragraphs 21-23).

Summary

The claimant was found on a reassessment to fail the work capability assessment- ie, not to have limited capability for work. At the time of the decision about this, she had a job with the police force as a cleaner but was not able to return to it. The decision was made some three weeks after she had had an operation on her right wrist/arm. On appeal, it was argued that regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008, SI No. 794 applied to her - ie, that she should be treated as having limited capability for work, on the basis that were she not so treated there would be a 'substantial risk' to her health or that of another person. The tribunal dismissed the appeal.

Judge Wright allowed the claimant's further appeal and remitted the case for consideration by a new tribunal. The tribunal had erred in not exploring, in the context of the 'substantial risk' argument, why it was that the claimant could not return to her job as a cleaner. Her argument to the tribunal was that, applying the test to the substantial risk rule set out by the Court of Appeal in Charlton v Secretary of State for Work and Pensions, reported as R(IB) 2/09, the type and range of work the claimant could do without such risk was heavily restricted at the time, as she was not long out of surgery. On any analysis, held the judge, her job as a cleaner, 'was the type of job the appellant was as a matter of her aptitudes and training capable of performing'. Why she was not performing it was unclear and that remained so because the tribunal failed to explore the question, despite the fact that that was plainly relevant to the Charlton risk assessment (paragraph 13). It was insufficient for the tribunal merely to have found, as it did in its decision, that it 'did not accept that there was not an adequate range of work' which the claimant could do without substantial risk (paragraph 14).

However, the judge did not consider that there was any potential relevance in this case, or in most others, in the possibility that the claimant may have lost her job as a cleaner were the substantial risk rule not applied and were she not treated as having limited capability for work. It was unclear whether that contention was being made or not, but insofar as it was it seemed to consist of an argument that the potential loss of a job which a person already has constitutes a 'risk' for the purposes of regulation 29(2)(b). That was not accepted by the judge. The risk referred to related to jobs a person could do, so that if a person were for the time being unable to do her/his existing job but was able and suited to do other work without risk, then the substantial risk rule would not apply. Also the risk had to arise out of the person's specific disease or bodily or mental disablement, and be a substantial risk to her/his physical or mental health or that of another person. Except possibly in some rare cases involving mental illness, the judge considered potential loss of employment too remote to count for these purposes (paragraphs 15-18).

Summary

The claimant suffered from depression and extreme bouts of anger and rage. He claimed problems with day-to-day activities and personal interaction. In July 2011, he had been placed in the support group; however, a few months later he was re-examined and following completion of a questionnaire, including details of his GP and a psychotherapist with whom he had a forthcoming appointment, he was assessed at a medical by a registered physiotherapist with no apparent professional expertise in mental health matters. The medical took 15 minutes. Although he was still considered to have limited capability for work, he was held not to be in the support group - ie, not to have limited capability for work-related activity. The First-tier Tribunal dismissed his appeal, which did not include an oral hearing and did not have reference to the July 2011 medical report or any further medical evidence.

Judge Mark allowed the claimant's appeal and remitted the case for rehearing by a new tribunal. On the facts of this case, the tribunal had erred in not at least considering adjourning to get a copy of the 2011 medical report that placed the claimant in the support group, and in not seeking further evidence about his condition from the claimant or preferably medical records relating to his mental health and history of violence; the tribunal also erred in failing to explain how it dealt with the claimant's own evidence about his condition (paragraphs 14-15, 20).

Further, the only evidence before the tribunal other than that of the claimant was that of the physiotherapist. Where the examining healthcare professional (or 'disability analyst', as she was described in this case) possesses relevant medical expertise, any opinion based on that is relevant evidence. But the judge then held, 'Where, however, the disability analyst is a physiotherapist and the problems she is dealing with are mental health problems the opinion of the physiotherapist as to the conclusions to be drawn have no probative value whatsoever. This is because the physiotherapist has no professional expertise in mental health matters' (paragraph 22). The judge went on to express surprise that a physiotherapist had been used in a case where the only issue was the mental health of the claimant, and that the evidence was produced following a 15-minute interview. 'lt is plainly important,' said the judge, 'that questions of mental health should be assessed by a disability analyst with appropriate mental health qualifications if their opinion is to be of any evidential value' (paragraph 23).

Comment from CPAG

Although the facts of the case were clearly important, there is no reason why the principles apparent in the decision should be restricted to work-related activity cases, or indeed to cases involving mental health assessments conducted by physiotherapists. The key point is that to be of evidential (probative) value, the assessment must be carried out by someone properly qualified to do so.

Summary

The claimant had agoraphobia and was liable to have panic attacks if he left the house. He appealed against a decision that he did not have incapacity for work (he was at the relevant time still in receipt of income support on that basis). He intended to attend the oral hearing, but on the day found it too much to do so, although his representative and his sister did attend. The representative applied at the hearing for an adjournment for a domiciliary hearing to be arranged. But the tribunal refused the application, heard the appeal in the claimant's absence, and refused his appeal. In its reasons, the tribunal said that there was ample notice of the hearing, the claimant was represented and the application for adjournment was 'extremely late', and that the application was refused as the tribunal did not consider it in the interests of justice or 'efficient despatch of proceedings'. The claimant appealed, including on the ground that the refusal to adjourn for a domiciliary hearing amounted to a denial of justice.

Judge Bano allowed the appeal and remitted the case for rehearing by a new tribunal. The tribunal had erred in its reasons for refusing to adjourn, and also in failing to consider whether the claimant, if found fit for work, was subject to a substantial risk to his health, something the judge considered relevant as the tribunal had awarded him points for being scared or anxious that work would bring back or worsen his illness (paragraphs 7-8). The Secretary of State supported the appeal regarding the refusal to adjourn. The context was rule 31 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, SI No.2685 (the 'tribunal rules'), which had been referred to by the tribunal. In GJ v SSWP, JG and SW [2012] UKUT 447 (AAC), Judge Jacobs had held that the discretion to proceed with a hearing in a party's absence must be exercised with reference to the overriding objective at rule 2 to deal with a case 'fairly and justly'. That rule includes, 'ensuring, so far as practicable, that the parties are able to participate fully in the proceedings'; it also includes avoiding delay but only 'so far as compatible with proper consideration of the issues'.

Judge Bano held that the tribunal was certainly entitled to have regard to the delay that would ensue from an adjournment for a domiciliary hearing to be arranged, but was also obliged to consider whether denying and adjournment would prevent the claimant from participating fully in the proceedings and whether it could decide the appeal properly without him being present. On the facts of this case, which included awards of different descriptors to those awarded at the medical and from those contended for by the claimant's representative, it was difficult to understand how the tribunal concluded it was in the 'interests of justice' to proceed in the claimant's absence (paragraph 6). Even if there was no breach of the right to a fair trial in this case (as there had been in CIB/2751/2002, which involved a refusal by a tribunal to order a domiciliary hearing for a claimant with agoraphobia), the tribunal's reasons did not show that it properly considered the overriding objective at rule 2 of the tribunal rules (paragraph 7). 

See the article in Bulletin 236, p5 for more on adjournments.

Summary

The claimant was entitled to an occupational pension amounting to £465.94 a week. He was refused contribution-based JSA on the basis that, applying the rule by which the benefit may be reduced in respect of earnings, certain pension payments etc, his entitlement was reduced to zero. He appealed to the First-tier Tribunal and argued that the rule, provided for by section 4(1 )(b) of the Jobseekers Act 1995, was indirectly discriminatory on age grounds and not justified, and so in breach of the European Convention on Human Rights. The appeal was dismissed on the grounds that the tribunal considered the rule justified.

The claimant renewed the challenge to the Upper Tribunal, arguing that the discrimination was against claimants aged over 50 compared to those aged under 50, as statistics showed that the latter group was far less likely to be in receipt of an occupational pension. Judge Wikeley dismissed the claimant's further appeal. That, however, was simply because the judge accepted that the Upper Tribunal was in a 'jurisprudential straightjacket' as regards remedy (in the event that the claimant's argument was correct). That was because, as the challenge was in effect that a provision of an Act of Parliament was unlawful, the only remedy was a declaration of incompatibility under section 4 of the Human Rights Act. But under section 4, the Upper Tribunal (as well as the First-tier Tribunal) was not empowered to make such a declaration - that could only be done by a higher court - ie, the Court of Appeal in this instance (paragraph 15).

To resolve that, the judge decided to hold that the First-tier Tribunal 's decision involved no material error of law, as section 4(1)(b) of the Jobseekers Act meant that it had been able to come only to one conclusion, that being that the claimant was not entitled to contribution-based JSA. Therefore, the claimant's further appeal was dismissed (paragraphs 17-20). That left the possibility for a further appeal by the claimant to the Court of Appeal. The judge also decided to refuse permission to appeal to the Court of Appeal (with the result that any application for permission now had to be made directly to the Court). There was 'no doubt' that the claimant's case raised a matter of principle. However, the judge considered it was for the Court of Appeal itself to decide whether the case raised an important point of principle.

Summary

The claimant bought his home under the right to buy scheme. But at completion date he could not pay the last £10,000; it was agreed that would be left outstanding, and he would pay that at a rate of £100 a month 'without interest'. The claimant was refused the inclusion of housing costs in his IS on the outstanding £10,000 (which on the facts had the result of meaning he was not entitled to IS at all). The First-tier Tribunal rejected his appeal, holding that only interest payments could be covered under housing costs, and as he was not paying interest, he was not entitled to any housing costs.

Judge West dismissed the claimant's further appeal, holding that there was no error of law in the tribunal 's decision. He accepted the submission of the Secretary of State that although the payments were an eligible housing cost under Schedule 3 of the Income Support (General) Regulations 1987, SI No.1967, that provision had to be read alongside regulation 17(1). That provided that the housing costs to be included were those 'in respect of mortgage interest payments or such other housing costs as are prescribed' in Schedule 3. The judge held that impliedly excluded mortgage capital payments, as it was not a natural construction to include such payments as 'other housing costs' (paragraph 29). Even where an interest-bearing loan would have had a rate of interest below the standard rate of interest used in the calculation of housing costs, so that the effect would be to pay off the outstanding capital sum, that did not remove the fundamental distinction in the law between an interest-bearing loan and a non-interest-bearing one (paragraph 30).

Decision in brief

Applying R(IS) 8/06, residence in Gibraltar does not count as residence in Great Britain - applying decision of European Court of Justice in Case-503/09 Lucy Stewart (21 July 2011 ), claimant able to benefit from European law cannot be denied entitlement on basis of residence requirement, if can show a genuine and sufficient link to Great Britain (paragraphs 41-48)- claimant had a British passport, lived in UK for a few years, had an employment history with connection to UK and was in receipt of a UK contributory pension and was entitled to a Christmas bonus - but had not lived in UK since 1964 and had no current family connections with UK, and lived in the Isle of Man and then Gibraltar from 1998 - balancing this, claimant did have a genuine and sufficient connection with Great Britain in relation to his retirement pension, as he was in receipt of a category A retirement pension and was entitled to a Christmas bonus, but test must be applied taking account of the particular benefit being claimed (paragraphs 52-58).

Decision in brief

Test of 'genuine and sufficient' connection to Great Britain - applying R(IS) 8/06, residence in Gibraltar does not count as residence in Great Britain - applying decision of European Court of Justice in Case-503/09 Lucy Stewart (21 July 2011 ), claimant able to benefit from European law cannot be denied entitlement on basis of residence requirement, if can show a genuine and sufficient link to Great Britain (paragraphs 45-52) - claimant had a British passport, lived in UK for a few years, had an employment history with connection to UK and was in receipt of a UK contributory pension and was entitled to a Christmas bonus - but had not lived in UK since 1964 and had no current family connections with UK, and lived in the Isle of Man and then Gibraltar from 1998- balancing this, claimant did not have a genuine and sufficient connection with Great Britain, but test must be applied taking account of the particular benefit being claimed (paragraphs 56-60) (see also SSWP v JG (RP))

Summary

The claimant had chronic fatigue syndrome. He was assessed as having limited capability for work, but not as having limited capability for work-related activity - ie, he was not put in the support group. He appealed, arguing that the tribunal had misapplied Activity 1 of the assessment for limited capability for work-related activity. In particular, it had failed to deal with descriptor (b) of the activity, which applies where a claimant cannot 'repeatedly mobilise 50 metres with(n a reasonable timescale because of significant discomfort or exhaustion'. The claimant also argued that the tribunal had failed to deal with his argument that the exceptional circumstance rule at regulation 35(2)(b) of the Employment and Support Allowance Regulations 2008, SI No.794 applied, so that he should be placed in the support group on the grounds of 'substantial risk' to his health if he were not.

Judge Jacobs allowed the claimant's appeal, setting the tribunal decision aside and remitting it to a new tribunal. The tribunal had erred in failing to make sufficiently detailed findings of fact regarding the claimant's ability to mobilise with regard to Activity 1 (paragraph 22). It had, for example, failed to explore what he meant when he said he could not mobilise 'repeatedly'. However, the judge refused to attempt to define what the words 'repeatedly', 'reasonable timescale' or 'significant discomfort', as they appear in the descriptor, meant. That would be the wrong approach to statutory interpretation and 'trespass impermissibly into the role of the First-tier Tribunal'. It was not for the Upper Tribunal to give more specific content to the law than the language in the legislation (paragraph 19). Rather, held the judge, 'The key to applying the words of Activity 1 lies in making findings of fact relevant to those words that are as specific as the evidence allows' (paragraph 20).

Turning to the exceptional circumstance rule and in particular that regarding 'substantial risk', the judge noted that the approach of the Court of Appeal in Charlton v Secretary of State for Work and Pensions, reported as R(IB) 2/09, applied to ESA. The Court's reasoning could be applied to regulation 35(2)(b) (ie, regarding the support component) in the context of the effect of the decision of not being placed in the support group and having to undertake work-related activity, including travel to it (paragraph 25). In terms of what work-related activity was under consideration, the effect was that, 'The decision maker must assess the range or type of work-related activity which a claimant is capable of performing and might be expected to undertake sufficiently to assess the risk to health either to himself or to others' (paragraph 26). Evidence about the work-related activity and about the claimant's health was key to that. Sometimes the claimant's disabilities will be such that only general information is required - eg, where the claimant's only disability is restricted mobility. it will be clear that s/he should be able to attend an interview or training course. But in other cases, such as this where there was also evidence of fatigue and an argument that work-related activity would impact on that, more specific evidence of the kind of work-related activity the claimant might be expected to undertake was required (paragraphs 27-32).

Summary

The issues before the judge in this decision were whether the claimant could be treated as having limited capability for work as someone 'undergoing medical or other treatment as an in-patient in a hospital or similar institution' or if the day in question was 'a day of recovery from that treatment', as provided for under regulation 25 of the Employment and Support Allowance Regulations 2008 No.794.

The claimant had been living in a residential treatment centre for people with gambling addictions, and then (by the time the decision on his ESA claim was actually made) had moved to 'halfway house' accommodation.

Judge Wikeley held that the First-tier Tribunal had failed to consider whether the claimant could benefit from regulation 25, and so was in error on that basis, with the result that a new tribunal would have to consider it (paragraphs 9-11). Giving guidance to the tribunal, the judge held that the expression 'medical or other treatment' had been considered by the Court of Appeal (albeit in a different context) in Secretary of State for Work and Pensions v Slavin [2011] EWCA Civ 1515; [2012] AACR 30. Although that was a case about disability living allowance, the judge considered that the same meaning should apply to the phrase in the context of ESA (paragraph 16). In Slavin, importance was placed on whether the claimant received treatment from qualified doctors or nurses; in the present case the question would be one of fact for the new tribunal, but it would need to explore questions like how the appellant was referred to the treatment centre, who admitted him and what were her/his professional qualifications and who had overall charge of the centre and the claimant's treatment programme (and again what were her/his qualifications) (paragraphs 17-19). For the meaning of 'in-patient', the proper meaning was the subject of CJ v SSWP (ESA) [2012] UKUT 201 (AAC). Again, however, the question was ultimately one of fact for the new tribunal (paragraphs 20-22).

As to the meaning of 'hospital or similar institu1ion' that was not defined, but had been considered by the Court of Appeal in White v Adjudication Officer (1993), reported as R(IS) 18/94, and also applied in Slavin. For the judge, it was unlikely that the treatment centre in this case was a hospital, but it might be a 'similar institution'. He cited official guidance in the Decision Makers Guide that 'an institution caring for former alcoholics, drug addicts or psychiatric patients which provides a degree of medical treatment or rehabilitation by trained nursing staff may be a similar institution to a hospital' (paragraphs 23-26). (He also noted that regulation 25 had been amended from 28 March 2011 to provide that it was to include treatment 'where the claimant is attending a residential programme of rehabilitation of drug or alcohol addiction.' However, this came into force after the date of the decision under appeal in the present case, and did not cover gambling addiction.) Again, whether the claimant was covered was ultimately one of fact for the new tribunal, as was the application of the rule to the 'halfway house' that the claimant was in at the time of the decision under appeal. Even if not a 'hospital or similar institution', it was possible that the halfway house was somewhere where the claimant was recovering from such treatment. In addressing that, the tribunal would need to take a 'common-sense' view, and adopt the purposive approach taken in CJ v SSWP- ie, that regulation 25 should apply only to those with medical conditions requiring hospital treatment and recovery from that treatment such the resulting limitation on capability could be assumed to be sufficiently serious, without the need to test it (paragraphs 27-32).

Comment from CPAG

Note that the judge thought it possible that, depending on the individual facts, someone receiving treatment for gambling addition or recovering from it can be covered by regulation 25, even though the March 2011 amendments refer specifically only to drug or alcohol addiction.