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Summary

This decision of the Court of Appeal is on the Secretary of State’s appeal against the decision of the High Court in R (DA and others) v Secretary of State for Work and Pensions [2017] EWHC 1446 (Admin). By a majority decision, the Court of Appeal allowed the Secretary of State’s further appeal, holding that the cap did not unlawfully discriminate against lone parents with children aged under two.

Giving the lead decision for the majority, Sir Patrick Elias considered (with particular reference to statistics on the effect of the cap) that the problems encountered by lone parents with children under two were not ‘sufficiently proportionately disabling…to make it unjust not to treat them differently’. As a consequence, there was no unlawful discrimination. Considering the position of the children themselves did not substantively alter that (paragraph 135). In the dissenting judgement, Lord Justice McCombe considered that the High Court had been entitled to find that there was an unjustified failure to treat lone parents with young children differently, and considered the witness evidence about the different position of such lone parents of equal significance with the statistical evidence (paragraphs 161–181).

Note: this decision will be the subject of a further appeal to the Supreme Court, where it will be heard with CPAG’s challenge regarding all one parents, R (DS and others) v Secretary of State for Work and Pensions (which has been ‘leapfrogged’ to the Supreme Court following dismissal in the High Court). 

See R (DA and others) and R (DS and others) v Secretary of State for Work and Pensions [2019] UKSC 21 for the Supreme Court's judgment.

Summary

In this judicial review decision, the High Court found that the benefit cap is unlawful regarding its application to the housing benefit of lone parents with children aged under two. However the Secretary of State is taking steps to appeal the decision to the Court of Appeal.

In the High Court, Mr Justice Collins considered a number of applications for judicial review from lone parents with children aged under two who were subject to the benefit cap via their housing benefit. He noted that a claim against the cap in its original form (before the level was lowered in 2016) was rejected by the Supreme Court in R (SG and others) v Secretary of State for Work and Pensions [2015] 1 WLR 1449. Although the claimants in that case failed in their argument that the cap unlawfully discriminated against women and large families, it was unanimously accepted there that there had been indirect discrimination against women since many more women than men were lone parents (paragraph 4).

Regarding lone parents with children aged under two, the judge accepted the argument that the parliamentary scrutiny process in passing the legislation had not taken into the account the particular position of such claimants. They were not reasonably able to work and so escape the cap. Also, the financial assistance made available to mitigate the cap (in particular, discretionary housing payments (DHPs) and childcare support) did not achieve the protection for such claimants that was claimed. It was 'difficult to see' how the official aim of incentivising work was realistic with regard to children under two. Some 3.7 million children live in poverty- 'as must be obvious', said the judge, 'the cap cannot but exacerbate this' (paragraph 29). Ministerial responses in parliament to concerns about the position of parents with children aged under two failed to engage, considered the judge, with the difficulties referred to (paragraphs 33-35).

In SG, the alleged breach of the anti-discrimination provision in Article 14 was in the context of Article 1 of Protocol 1 (right to possessions). That proved problematic for the claimants, as it was the parents who had therefore been the subject of discrimination (rather than the children. In the present decision, however, the judge accepted that the discrimination was also in the context of the rights of children under Article 8 (right to family and private life). That argument was not pursued in SG, but subsequently had been shown to be of at least potential relevance in the decision of the Supreme Court regarding the 'bedroom tax' in R (MA and others) v Secretary of State for Work and Pensions [2016] 1 WLR 4550. The barrier to the claimants in SG was therefore 'no longer valid' (paragraph 39). The children and parents in the current case have restrictions on what can be provided by way of housing, food and other things 'that an average child should have available'. The damage to family and private life caused by the cap was clear, and Article 8 was engaged. The test for justification of discrimination, namely whether it was 'manifestly without reasonable foundation', was not met and the claims for judicial review therefore succeeded (paragraph 40-42).

Comment from CPAG

The essence of the judge's reasoning is distilled in his closing remarks (at paragraph 43): 'Whether or not the defendant accepts my judgment, the evidence shows that the cap is capable of real damage to individuals such as the claimants... Most lone parents with children under two are not the sort of households the cap was intended to cover and, since they will depend on the DHP, they will remain benefit households. Real misery is being caused to no good purpose.' The Secretary of State indeed does not accept the judgment, will apply the cap as before, and is appealing to the Court of Appeal. A hearing is expected in October. See also the article on p4.

Note: The Court of Appeal allowed the Secretary of State's appeal, see R (DA and others) v Secretary of State for Work and Pensions [2018] EWCA Civ 504. The claimants appealed to the Supreme Court, see R (DA and others) and R (DS and others) v Secretary of State for Work and Pensions [2019] UKSC 21 for the Supreme Court's judgment.

Decision in brief

Checked on during the day - such assistance was not help with 'managing therapy' - the assistance was not therapy - did count as 'supervision, prompting or assistance' to be able to 'monitor a health condition' so 1 point was correctly scored for descriptor 3b - but a higher points score for help with 'managing therapy' did not apply

Summary

The claimant had been awarded tax credits, including working tax credit, for the tax year 2012/13. Following the gathering of further evidence by HMRC of the claimant's childcare costs, the award was terminated in September 2012, essentially on the basis that her employment was a sham. The claimant's appeal was dismissed by the First-tier Tribunal.

Judge Gray dismissed the claimant's further appeal. The tribunal had made no error of law. Although there may have been permissible disagreement, the conclusions reached by the tribunal were available on the evidence and were sustainable. In so holding, the judge commented on the use in this case of HMRC powers under s16 of the Tax Credit Act 2002. That, said the judge, was 'an in year review power which enables HMRC to amend or terminate an award of they have reasonable grounds to do so' (paragraph 9). The correct procedure had been considered by Judge Wikeley in ZB v HMRC 198 (AAC). That included that for HMRC to require evidence under s16 there had to be a 'belief' (not a mere doubt) that the decision was wrong; that the s16 power only arises ifthere is no power to revise for a change of circumstances under s15; that having begun the investigation under s16 there then had to be 'reasonable grounds' for believing that the award was wrong before it was amended or terminated.

In the present case, it was clear from the HMRC submission that the decision to review the award was based on intelligence of a high number of claimants in the area using the same childcare provider and paying particularly high childcare costs involving the greater part of their employment income: that provided sufficient grounds for a 'belief' that the award was wrong (paragraphs 13-14). The termination of the award followed the consequent identification of discrepancies between the information received and that already held by HMRC regarding the employer that, in the judge's view, provided reasonable grounds for termination (paragraph 16). The tribunal had correctly given the claimant a chance to counter that evidence, without impermissibly placing a burden of proof upon her, and drew sustainable conclusions (paragraphs 22-24, 28).

Summary

The claimant had a mental health condition which resulted in her experiencing psychotic symptoms, manic episodes and also somatic complaints including pain, stiffness and exhaustion. There was no evidence of a physical origin for those complaints. Having been refused PIP, she appealed to the First-tier Tribunal, which awarded her the daily living component but not the mobility component. The claimant appealed against that, arguing that she should also have been awarded the mobility component.

Judge Rowley dismissed the claimant's further appeal. The tribunal had not erred in refusing to award the mobility component, because the evidence (which included the claimant's own testimony) amply justified the conclusion that the claimant could walk for over 200 metres, resulting in a score of O points (paragraphs 21-23). However, the claimant's appeal did not fail on the basis that the somatic complaints with walking that she reported were not capable of being taken into account. Under section 79 of the Welfare Reform Act 2012, a person is entitled to the mobility component if her/his ability is limited by her/ his 'physical or mental condition'. There is nothing in the wording of any of the relevant legislation 'to suggest that a claimant whose psychosomatic condition manifests an inability to move around will not qualify'. For the judge, it was simply a question of 'whether the claimant genuinely suffers pain to such an extent that his or her ability to move around is limited' (paragraph 17).

The judge also noted the decision of Judge Ward in HL v SSWP (PIP) [2015] UKUT 694 (AAC). In that decision, the judge had considered the question of what is meant in the mobility descriptors to be able to 'follow the route' of a journey, following a split in the caselaw. In HL, it was decided that the test focused on the ability to 'navigate' and was not concerned with other possible problems the claimant may have when walking. In the present decision, Judge Rowley agreed with the approach taken by Judge Ward in HL. The correctness of that approach meant that in the present case the tribunal had not erred in failing to investigate what would happen if the claimant needed to have personal interactions along the route of a journey. The judge also noted the finding in HL that 'overwhelming psychological distress' could make a claimant unable to navigate a route, although again there was no evidence of that in this case (paragraphs 12-15).

Comment from CPAG

This decision adds to the caselaw authority that 'follow the route' in Activity 1 means the ability to navigate. However, the possible relevance to that of 'overwhelming psychological distress' is worth remembering, as is the judge's clarification that somatic symptoms may be relevant to the mobility component overall.

Summary

The claimant was overpaid the severe disability premium in his PC, following the ending of his award of attendance allowance (AA). That occurred in August 2013; however, the DWP did not properly supersede the award to remove the premium until February 2014. Shortly afterwards, it issued a decision saying that the claimant had been overpaid and that was recoverable from him as, until February 2014, he had failed to disclose the fact that his AA had ceased, so causing the overpayment. The First-tier Tribunal dismissed the claimant's appeal.

Judge Turnbull dismissed the claimant's further appeal. The claimant had argued that the information provided to him had not been clear as to his duty to report the cessation of his AA, and so he had not failed to disclose. Also, as it was the DWP that stopped the AA, the Pension Service should be deemed already to know about that thus rendering any failure on his part immaterial. Rejecting both of those arguments, the judge first held that the statement in the booklet IN4(PC), issued to the claimant on numerous occasions, contained a statement that if the claimant or his partner were getting any social security benefit, allowance or tax credit, 'you must tell us if there are any changes to them', was clear, and gave rise to a duty on the claimant to disclose under regulation 32(1 A) of the Social Security Claims and Payments Regulations 1987 No.1968 (paragraph 32). Also, the claimant could not assert that he knew for sure that the Pension Service would be made aware of the cessation of his AA, and so could not argue that he had not failed to disclose on the basis that there was no point because the relevant authority were already aware (paragraphs 33-34).

Regarding causation, the judge accepted that the Pension Service would have received notification via the DWP computer system (specifically, RIS30715 reports issued by the Customer Information System) that the AA had ceased, and had neglected that. It was also the case that the burden of proof to show that the claimant's failure had caused the overpayment was on the Secretary of State (paragraphs 38-39). However, causation involved a question of whether, as a matter of common sense, the failure of the Pension Office to act meant that due to intervening factors it would not be right to hold the claimant responsible for the overpayment, so breaking the 'chain of causation' (paragraph 42, citing SSWP v SS (SPC) [2013] UKUT 272 (AAC)). As a matter of common sense, although the Pension Service failure was a cause of the overpayment, it was not the only cause, and if the claimant's failure was properly regarded a contributing cause (as it certainly was here) then the chain of causation was not broken (paragraph 43, citing Duggan v Chief Adjudication Officer, reported as R(SB) 13/89). The judge also considered, on the balance of probability, that had the claimant properly informed them, the Pension Service would have acted so as to stop payment of the severe disability premium. That was also an essential finding regarding causation and, in the judge's view, it did apply in this case (paragraph 41 ).

Summary

The claimant lived in social sector rented accommodation and was subject to a reduction in his eligible rent under the so-called 'bedroom tax' - ie, for alleged under-occupation, as provided for by regulation B13 of the Housing Benefit Regulations 2006 No.213. His appeal to the First-tier Tribunal was successful, the tribunal finding that the room in question could not be classified as a 'bedroom'. The tribunal found that the room had been used as a bedroom by the claimant's son until about 2010, but that was unsatisfactory as the room (about 63 square feet in size) had a sloping ceiling, and the son had a cabin bunk bed on a sleeping platform. Also the room had been used as a store room since the son had left. The tribunal also found that the room would not qualify as a bedroom for the purposes of rules in England for the size of a bedroom for an adult in houses in multiple occupation.

Judge A Lloyd-Davies allowed the further appeal of the local authority and remitted the case to a fresh tribunal. The tribunal had erred in failing to apply the decision of the Upper Tribunal in SSWP v Nelson and Fife Council DN (HB) [2014] UKUT 525 (AAC); [2015] AACR 21 (the 'Nelson' decision), and so had erred in that it took into account the actual use of the room at the date of the decision, it solely considered whether the room could be used by an adult, and it took into account legislation relating to overcrowding (paragraph 4).

Also, the judge dealt with the claimant's argument that Nelson (which specifically concerned overcrowding legislation in Scotland) did not take account of the Housing Act 2004 which applied in England, and the guidance given by Local Authorities Coordinators of Regulatory Services (LACORS) about space and overcrowding, and that therefore Nelson should not be followed. The judge rejected that argument. It was a general point in Nelson that legislation relating to space and overcrowding was not to be read across into the HB legislation. The legislation and guidance cited by the claimant in any case did not concern actual room sizes, and were applied with regard only to actual occupiers; the LACORS guidance was about houses in multiple occupation, which was not the case here. However, the judge remitted the case to a new tribunal as Nelson did require that relevant factors included that the room should be able to accommodate a single adult bed, a bedside table and somewhere to store clothes as well as providing space for dressing and undressing (paragraphs 5-6).

Summary

The claimant, a child, was an Israeli national. He came to the UK from Israel with his mother (his appointee and a dual Israeli and British national) and two siblings in 2011 . However, by the time of the application on his behalf for DLA his visit visa had expired, and no attempt had been made to regularise his immigration status: in short, he was an overstayer. The claim was refused on the basis that the condition requiring 'ordinary residence' in Great Britain in the DLA rules was not satisfied. The First-tier Tribunal dismissed his appeal, but on the basis that the claimant was a 'person subject to immigration control ' under section 115 of the Immigration and Asylum Act 1999.

Judge Hemingway held that the claimant did not satisfy the ordinary residence requirement and so was not entitled to DLA. He concluded that the phrase 'ordinarily resident', in the context of regulation 2 of the Social Security (Disability Living Allowance) Regulations 1991 , SI 1991 No.2890, includes an implied requirement that any such residence is lawful, whether the claimant was an adult or a child (paragraph 41 ). He considered that the similar finding of the House of Lords in R v Barnet London Borough Council Ex parte Shah [1983] 2 WLR 16, although strictly speaking obiter was a 'powerful statement' of the view taken by the House of Lords. Also, such an approach in the specific context of where a benefit was sought had been followed in a number of more recent cases (paragraph 33). Cases regarding children in which a different general approach had been indicated did not go so far as to suggest that should be so in cases, 'where a child claimant in the UK unlawfully seeks access to a State benefit' (paragraph 34).

Regarding exclusion under s115 of the Immigration and Asylum Act, the claimant argued that he came within an exception in the Social Security (Immigration and Asylum) Consequential Amendment Regulations 2000 No.636. Specifically, for DLA a person not excluded under section 115 includes a member of a family of a national of a State that had contracted to the Oporto Agreement for the European Economic Area (EEA), and that as the claimant was the child of someone with British nationality (his mother) and that Britain was a signatory to the Agreement, that exception applied. Although (given his finding about regulation 2) not formally required to decide the matter, Judge Hemingway rejected that argument. He accepted the reasoning made in CDLA/708/2007 that the exception applied only to family members of EEA nationals who had exercised free movement rights within the EU. As the claimant and his mother in this case had come direct from Israel to the UK and had never been in any other EU state, the exception did not apply (paragraphs 42-43).

Summary

The claimant was a child aged five years. He had a condition resulting in extensive joint pain, in particular at night. His claim for DLA (made on his behalf by his mother who was also his appointee) was refused. On appeal, the First-tier Tribunal awarded only the low rate of the care component on the basis of attention for a significant portion of the day. It rejected an argument for the middle rate based on a need for attention at night for 'prolonged or repeated attention', on the basis that the claimant's night time needs 'would not be unusual for some five year olds.'

Judge Hemingway allowed the claimant's further appeal and substituted a decision that he was entitled to the middle rate of the care component. The relevant test at section 72(1 )(c)(i) of the Social Security Contributions and Benefits Act 1992 was satisfied, as the claimant needed 'prolonged' care at night, which was 'substantially in excess' of that required by a non-disabled child of the same age. The tribunal found that the claimant had four 'good' nights a week where he needed attention for 30-60 minutes, and three 'bad' nights where he was awake on several occasions that could total five or six hours. The tribunal considered that as on the majority of nights he needed attention for 30-60 minutes and that 'this would not be unusual for some five year olds' the test was not satisfied. But Judge Hemingway held that the tribunal erred in failing to explain that view which did not to him 'seem sufficiently obvious to be assumed' (paragraph 12).

Moreover, the tribunal had applied the wrong test in comparing the claimant with 'some' five year olds. As held in CA/92/92, the yardstick was an 'average' child: in the present case the judge agreed with that, which meant that 'the tribunal should have been asking itself whether the claimant had needs significantly beyond those of a normal child of is age' (paragraph 12). Also, the judge accepted that a yardstick of 20 minutes or more being 'prolonged' attention was not 'for the most part at least, unreasonable' (paragraph 16). Finally, it did not seem to the judge right to say that 'many children of the age of five... will require or are likely to require' the amount of help needed by the claimant: rather it seemed entirely reasonable to conclude that 'the attention this claimant receives even on the good nights is substantially in excess of that which would be required by a typical child of similar age' (paragraph 16).

Comment from CPAG

DLA continues for disabled children, and this decision is a helpful reminder that in the 'substantially in excess' test it is wrong to identify 'some' children that the claimant's needs can be compared with; rather it is a 'normal ' child (or as referred to in C/1/92/92, an 'average' child). The judge also considered that the tribunal probably erred in taking an incorrect arithmetical approach when seeming to base its decision simply on what applied on the majority of nights; but given that he found the test was satisfied even on that basis he did not need to definitively decide that (paragraph 18).

Summary

This decision of the Court of Appeal arises from in two appeals where the main question was whether the retrospective validation (by the Jobseekers (Back to Work Schemes) Act 2013 - the '2013 Act')) of sanctions rules on jobseeker's allowance (JSA) claimants, which had been held to be invalid, was in breach of the European Convention on Human Rights (ECHR). The two cases were: (1) the decision of the High Court in Reilly (No.2) and Hewstone v Secretary of State for Work and Pensions [2014] EWHC 2182 (Admin) (4 July 2014) (Bulletin 241 , p11); (2) the decision of the Upper Tribunal in SSWP v TG and others (JSA) [2015] UKUT 56 (11 February 2015).

The Court of Appeal held that the retrospective validation by the 2013 Act of sanctions in various work programmes under the Jobseeker's Allowance (Employment, Skills and Enterprise) Regulations 2011 No.917 (the '2011 regulations') was not valid in one respect. It was in breach of Article 6 of the ECHR (right to a fair trial) regarding claimants who had already appealed against sanctions imposed on them under those regulations when the 2013 Act came into force on 26 March 2013. In so deciding, it upheld the decision of High Court in Reilly (No.2) (paragraph 83). However, it held that the Upper Tribunal in SSWP v TG had erred in deciding that the 2013 Act, as a matter of ordinary statutory construction or applying section 3(1) of the Human Rights Act 1998, did not apply in such cases anyway (paragraph 131 ). Therefore, the 2013 Act was successful in retrospectively validating sanctions under the 2011 regulations, except in cases where the claimant had already appealed against the sanctions, in which cases the Act was incompatible with the claimants' rights under Article 6 ECHR. Under the Human Rights Act, this declaration of incompatibility did not mean the 2013 Act ceased to be effective even in such cases: it was up to the government, subject to any further appeal, to decide what to do now (paragraph 180).

The Court also considered whether, for the Work Programme, there is a 'prior information requirement' by which claimants must be given information about the scheme - both at the point they are referred to it and before they are actually mandated to undertake activity. The Court upheld that the Upper Tribunal 's decision in so far as is held that it was 'not easy' to see what representations claimants could make at the point that are referred to the Work Programme, although (said the Court) that did not mean there could never be such cases (paragraphs 171-72). However, in so far as the Upper Tribunal held that there was no such requirement at the point the claimant was actually required to undertake activity, that was wrong. In principle, claimants should have 'sufficient information to enable them to make meaningful representations' about what they are required to do. In practice, however, the Court accepted that guidance required that such information was normally provided; whether there was a failure to do so in any particular case 'will have to be judged on the facts of the particular case' (paragraphs 176-78).

Note: see also the article on p4.

Summary

The claimant was a Dutch citizen. Her claim for employment and support allowance (ESA) was refused on right to reside grounds. On appeal, she argued that it was not permissible under EU law to deny access to benefits intended to facilitate access to the labour market to someone who had the right to reside as a jobseeker, so that ESA, as such a benefit, had to be made available. That argument had been rejected in the Upper Tribunal, where Judge Jacobs said that ESA was not a benefit intended to facilitate access to the labour market in the sense of EU law. The work-related activity that some ESA claimants were required to undertake was to assist them to recover sufficiently, and was merely preliminary to the point at which they could access the labour market.

The Court of Appeal unanimously rejected the claimant's further appeal. Giving the lead decision, Lady Justice Arden held that EU law distinguished between 'social assistance' and benefits intended to 'enable a job seeker's integration into the labour market'. She held that 'ESA is social assistance and not a labour market related benefit' (paragraph 5). The result was that ESA could be lawfully denied to the claimant on right to reside grounds, under Article 24(2) of EC Directive 2004/38.

Citing paragraphs 42-46 of the decision of the European Court of Justice in Jobcenter Berlin Neukolln v Alimanovic, EWCA C-67 /14 (Bulletin 249, p11 ), Lady Arden held that the test was the 'predominant function' of the benefit concerned (paragraph 24). It was clear that ESA was 'primarily provided for those who cannot work or who are on the borderlines due to some disability or past episode in their lives'; also, roughly 87 per cent of those eligible for ESA were put in the support group and did not have to undertake work-related activity (paragraphs 42-43). The conclusion was that ESA was 'not properly described as intended to facilitate access to the labour market for the purposes of EU law' (paragraph 49).

Decision in brief

Involves reasonably flat pavements and road surfaces, taking into account an ability to negotiate kerbs, but disregarding any inability to climb steps or slopes - as in the case of the higher rate mobility component of disability living allowance, the test is not about whether the claimant can walk on unploughed land or over unmade-up roads or pavements under repair by the council (R(M 1/91 cited)