CPAG search

Summary

The claimant was assessed as having limited capability for work, having scored 15 points in that part of the work capability assessment. However, he was not assessed as having limited capability for work-related activity- ie, and so was not put in the support group. The First-tier Tribunal upheld the decision that he scored no points in that part of the assessment, in particular that Activity 13 and its accompanying descriptor did not apply. That activity is 'coping with social engagement due to cognitive impairment or mental disorder'; the descriptor requires that, 'engagement in social contact is always precluded due to difficulty relating to others or significant distress experienced by the individual'.

Judge Parker upheld the claimant's further appeal, holding that on a proper construction of the wording of the descriptor, the claimant satisfied the test. The claimant's representative had argued that, although the claimant was on occasion able to engage in social contact, the descriptor was nevertheless satisfied as regulation 34(2) of the Employment and Support Allowance Regulations 2008, Sr No. 794 applied throughout the work capability assessment and provided that a descriptor applied to a claimant, if it applied 'for the majority of the time...'. The Secretary of State argued by contrast that regulation 34(2) only applied where the wording of the descriptor concerned did not exclude that possibility, and that here the Activity 13 descriptor excluded it as it required that social contact was 'always' precluded.

The judge held that regulation 34(2) must be given some application, if that was possible without a strained construction. It was possible. That was because the word 'always' as defined in the Concise Oxford and other dictionaries had a primary meaning of 'every time', but also a secondary meaning of 'repeatedly, persistent' (paragraph 13). Applying that, the judge held that 'always precluded', as used in Activity 13 (and also in Activity 16 of the limited capability for work test), 'is not an all or nothing test; rather, it means "repeatedly" or "persistent" or "often"' (paragraph 14). Such a meaning, when combined with regulation 34(2), meant that for the descriptor to apply it had to apply with a greater frequency than a simple bare majority of the time. Whether it did in the individual case was a matter of fact and degree, and to be applied in a common sense way. On the facts of this case, where the claimant could only engage in very limited social contact when visiting his doctor and when attending the tribunal, it did apply (paragraph 14). However, the judge accepted the Secretary of State's argument that the social activity to be taken into account did have to include contact with people such as doctors and lawyers, and could not be restricted to voluntary, informal contact with people like friends and relatives (paragraph 17).

Summary

The claimant had been entitled to disability living allowance (DLA). She had married her appointee. Following an investigation the award was terminated from a point in the past, with a resulting overpayment that was held to be recoverable from the appointee. Both the claimant and the appointee appealed. Also, the appointee was charged with fraud for failing to disclose a relevant change in the claimant's circumstances (an improvement in her capabilities) that he knew would affect her entitlement. It was unclear whether the appointee had pleaded guilty or not guilty; however he was convicted before the tribunal hearing took place. The tribunal rejected the appeal (seemingly it treated only the appointee as a party) holding that in the absence of fresh evidence indicating that the conviction was wrong, the conviction was a complete bar to the appeal.

Judge Mark allowed the further appeal of the claimant and the appointee and remitted the case to a new tribunal The tribunal had erred in holding that the conviction was a complete bar to the appeal. Also, it was the job of the tribunal also to determine the claimant's entitlement to DLA as part of the appeal. She was not a party to the criminal proceedings, had not been convicted of anything and the conviction of the appointee was not in itself evidence which could be relied on against her, although the evidence relied on before the criminal court could be evidence against her if relevant (paragraph 7).

In so holding the judge reviewed the caselaw on the matter of criminal convictions and the weight to be given to them by tribunals. He adopted the view that 'a conviction represents no more than the opinion of the criminal court that the party in question was guilty of the offence charged and that that opinion, not being expert evidence, was not admissible in other proceedings, because it has no probative value' [ie, sufficiently useful to be proof] (paragraph 24). A separate question was whether there was a public policy requirement that might preclude a convicted person from challenging his conviction - eg, in a social security appeal. Reviewing the authority, the judge held that in general it was contrary to public policy to allow this. However, a party could seek to explain the circumstances of the conviction and the facts on which it was based, without seeking to challenge those facts, and that if there was convincing new evidence that the conviction was wrong they could be permitted to challenge the conviction (paragraphs 32-33). Otherwise, a tribunal should treat any attempt to challenge the primary findings of fact made by the criminal court, or the admissions involved in the pleas of guilty and any inference from those made by the court as against public policy and refuse to permit it, except upon the basis where such challenges were in any case permissible under section 11 of the Civil Evidence Act 1968 (paragraph 34).

However, an exception applied about application of the benefit rules to the facts. The social security tribunal was a specialist tribunal, and it seemed to the judge that 'there should be an exception to the general rule of public policy to the extent that the specialist tribunal should be able, in appropriate cases, to substitute its own findings as to social security law for that of the criminal court, and should be able to make its own findings as to the inferences and conclusions to be drawn from the primary facts found by, or admitted to the criminal court, as to the abilities or otherwise of the claimant and his entitlement to benefit' (paragraph 36). Therefore, the new tribunal in the present case should take into account the evidence that was before the criminal court and the admissions involved In any guilty plea by the appointee when considering the benefit entitlement of the claimant, but should not be bound by the conviction of the appointee on its findings on the claimant's claim (paragraph 38).

Summary

The claimant had her entitlement to disability living allowance removed following a reassessment. Her appeal to the First-tier Tribunal was dismissed. Her representative applied for a statement of reasons, then wrote requesting permission to appeal. The tribunal judge (a fee-paid judge) then provided additional reasons for the decision, which were sent to a district tribunal judge (the salaried judge) as part of the district tribunal judge's consideration of the request for permission to appeal. That judge sent a decision saying that the tribunal had decided to review its decision on the basis of an error of law and as a consequence had amended its reasons. Those reasons were sent with the decision, and parties were informed of their ability to appeal to the Upper Tribunal within a month of the date of the amended reasons.

In a three-judge panel of the Upper Tribunal, Chamber President Charles and Judges Jacobs and Wright allowed the claimant's further appeal, and remitted the case to a new tribunal. On appeal, the Upper Tribunal's jurisdiction included considering whether additional reasons were properly added under the review power. The original (ie, unamended) reasons in this case contained an error of law in that they were too general in their analysis of the facts, and the additional reasons were improperly added on review, as they improperly provided a commentary on the grounds of appeal and attempted to provide a better, clearer explanation than the original reasons (paragraphs 60-63).

In so holding, the Upper Tribunal provided a commentary on the power, under section 9(4)(b) of the Tribunals, Courts and Enforcement Act 2007, by which a tribunal that reviews a decision may ‘amend reasons given for the decision. Firstly, the combined effect of section 9 and of rules 39 and 40 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2010, was that the First-tier Tribunal may only review a decision on an application for permission to appeal and where there was an error of law (paragraph 22). Secondly, if the salaried judge that must exercise the power of review considers that it may be appropriate to amend the tribunal's reasons, the proper course is to invite the presiding judge of the tribunal On this case, a fee-paid judge) to prepare them and then apply the review powers fairly and justly, including giving every party to the appeal notice before taking action or at least giving them the option of applying for a set-aside of the review (paragraphs 26-27). Regarding the whole purpose of review, that was 'to allow the First-tier Tribunal to avoid the need for an appeal to the Upper Tribunal in the case of clear errors' and must not be .used in a way that 'subverts the appeal process and bypasses the proper function of the Upper Tribunal' (paragraph 28). The power to give additional reasqns 'is only to be exercised exceptionally and with safeguards' (paragraph 34). The purpose of amended reasons was the same as the original ones (to explain the decision of the tribunaO so as to avoid the need for an appeal to the Upper Tribunal (paragraphs 40-42). Permissible amendments may be, for example, to include something explored at the hearing but missed by oversight in the original reasons, or clarifying an ambiguous or unclear passage; an example of an impermissible amendment would be one that bolstered or supplemented a passage that gave a poot explanation of the tribunal's analysis of a piece of evidence (paragraphs 47-50). A salaried judge considering an amendment of the reasons should consider if there is an error of law in the tribunal decision, then give notice of that and a possible amendment of the 'reasons to the parties to the appeal (paragraphs 52-58).

Summary

The claimant was a child diagnosed with ADHD. She had behavioural problems, lack of understanding of danger, lack of concentration and underdeveloped basic living skills. The decision maker made no award of DLA On appeal, the evidence before the First-tier Tribunal included a psychiatrist's report stating that the claimant was liable to be at risk, a school report and letter saying that her behaviour was very challenging if she did not take her medication and that her condition had worsened due to exam pressures, and a letter from her support worker describing her behaviour at home since the birth of a baby sister as 'very demanding of attention and support'. The tribunal found that the claimant's condition had deteriorated since the date of the decision under appeal and refused the appeal.

In allowing the claimant's further appeal and remitting the case to a new tribunal, Judge Bano held that the tribunal had failed to conduct a sufficiently detailed analysis of the risks to the claimant if she were left unsupervised. He made the following comment, 'As I pointed out in CDLA/3779/2004, children of school age are generally supervised for much of the time, so that their behaviour in those conditions may not provide an accurate indication of the risks to the child if that supervision is not given. In order to answer that question, the tribunal will need to consider the evidence available from all sources, including that of the school and those involved in caring for the child, for the purpose of assessing the risks to the claimant if continual supervision, or supervision when walking out of doors, were not provided' (paragraph 5).

Summary

The claimant was found to be not entitled to HB he had received over a period of several years. He appealed to the First-tier Tribunal. The local authority intended to send a presenting officer. Before the hearing began, the local authority applied for a postponement because the presenting officer was too ill to attend; but as the request was not passed to the tribunal by the Tribunal Service, the hearing proceeded in the local authority's absence, and the appeal was allowed. The local authority applied for, and was granted, a set-aside of the decision; the second First-tier Tribunal dismissed the claimant's appeal. A number of administrative errors, none the fault of the claimant, had arisen during the course of the appeal. The claimant appealed further both against the set-aside and the decision of the second tribunal.

Judge Lane rejected both of the claimant's further appeals. The decision to set aside, made under rule 37 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules, was not erroneous in law. The grounds were whether it was considered to be in the interests of justice to do so, and one or more other conditions, including that a party to the appeal was not present at the hearing, applied. That was clearly satisfied here. The judge rejected arguments that, on the facts of this case, the set-aside request (by fax) was not made in full; the communication result report showed, that it had been (paragraph 27). The judge pointed out that, in any event, the set-aside could have been made on the balance of probabilities and it was not necessary for the application to have bean made before the hearing (paragraphs 30-31). She also rejected an argument that the judge making the set-aside decision had given inadequate reasons for it. One of the features of the set-aside rule was its discretionary nature, and 'the correct approach to whether the judge' s decision was erroneous in law must be to look at whether the decision was objectively fair in light of the generous ambit given to judges when weighing up factors involved in exercising discretion' (paragraph 36). As a decision which did not dispose of the proceedings, the rules did not require full reasons for a set-aside, and although under common law a 'succinct explanation' is required, that should not be used to undermine the relevant provisions. In practice, if the reasons were themselves obvious from the decision itself (as here), then nothing further is required (paragraphs 37-40).

The judge also rejected arguments that the second tribunal's decision was wrong in law. The claimant's arguments included that thp.t tribunal should, as he submitted at the hearing, have reconsidered the set-aside of the first tribunal's decision. Judge Lana rejected that, as it was without authority; the set-aside decision was discretely appealable to the Upper Tribunal, and it was no part of the second tribunal's jurisdiction 'to entertain any application for permission to appeal aspects of the decision-making process' that led up to the second hearing (paragraphs 49-50). More widely, the claimant asked the second tribunal, an hour into the hearing, to deal with a number of points relating to the administrative errors which had occurred but which were beyond the tribunal's jurisdiction, and which in Judge Lane's view did not in any case prejudice the claimant: the tribunal did not err in refusing to deal with them (paragraphs 51-57). The substantive decision of the second tribunal, which concerned the operation of the rules on tenancies on a commercial basis and on 'contrived' tenancies, was not erroneous in law. It had applied the relevant provisions correctly, and to the extent that the claimant was now trying to dispute findings of fact, that was a matter for the First-tier Tribunal which was open to him on the evidence and for which it had given cogent reasons for finding (paragraphs 66-83).

Summary

The claimant had a mental health condition. She failed the work capability assessment (WCA). On appeal, it was argued that the ‘substantial risk’ provision should apply – ie, so that she should be treated as passing the WCA because of ‘substantial risk’ to her health or someone else’s health were she held not to pass the assessment. The First-tier Tribunal dismissed the claimant’s appeal, holding that there would not be such a risk, as under the Equality Act 2010 an employer is required (among other things) to make ‘reasonable adjustments’ in the workplace to accommodate a ‘disabled person’.

Judge Wright allowed the claimant’s further appeal, and remitted to a new tribunal the question of whether the substantial risk provision, at regulation 29(2)(b) of the Employment and Support Allowance Regulations No.794, applied to the claimant. The tribunal had erred in relying on the Equality Act. Specifically, held the judge, ‘the assessment of risk under regulation 29(2)(b) of the ESA regulations does not require or involve the decision maker (be that the Secretary of State’s delegate or the First-tier Tribunal) in making an assessment as to whether employers would owe a duty under the Equality Act 2010 to make reasonable adjustments in respect of the individual claimant whose case falls for decision…’ (paragraph 5).

The judge accepted the Secretary of State’s argument that the analysis of the risk under regulation 29(2)(b) is ‘not an assessment of the application of the EA 2010’ (paragraphs 44–5). The judge’s reasons for that were: (1) the Equality Act 2010 and ESA schemes have different statutory aims and materially different statutory contents; (2) the Equality Act 2010 test ‘sits uneasily’ with the fundamental approach to regulation 29(2)(b) set out by the Court of Appeal in Charlton v SSWP [2009] EWCA Civ 42; R(IB) 2/09; (3) the First-tier Tribunal is ‘ill equipped’ to make proper assessments under the Equality Act 2010; and (4) recourse to the Equality Act 2010 is unnecessary, because regulation 29(2)(b) already allowed for sufficient regard to be paid to actual steps that may reasonably be taken to reduce the risk to health (paragraphs 46– 59). In so deciding, Judge Wright declined to follow, as wrongly decided, the decision of Judge Mark in JB v SSWP [2013] UKUT 518 (AAC), where in an obiter comment the judge said that a tribunal was bound, if relevant to an issue before it, to determine whether a person would be owed a duty by a potential or actual employer under the Equality Act 2010 (paragraph 74).

Comment from CPAG

This decision is properly to be regarded as concerning the relevance of the Equality Act 2010 to the substantial risk provision; for a decision on the issue of the relevance of the Act to ESA appeals and tribunal representation, see DC v Secretary of State.

Summary

The claimant was a Polish national. She came to the UK in December 1998, at the age of 10, with her parents and three siblings. She returned with them to Poland in 2002 but came back in June 2004 (aged 15) when Poland joined the EU. Her mother died and her father became ill. After finishing school the claimant begin registered work but at 17 became pregnant and after a period of unregistered work claimed income support (IS). She was refused on the basis that she did not have the right to reside, a decision eventually upheld in the Upper Tribunal. The claimant's further appeal to the Court of Appeal was based on the argument that the refusal of a right to reside in her case was disproportionate as, by obliging her as someone who had been in the UK for most of her life since the age of 10 to return to Poland, it violated her rights to private and family life under EU law.

The Court of Appeal unanimously dismissed the claimant's appeal. At the time of her claim for IS, she was (as an 'AB' national subject to the workers' registration scheme and was neither working for an authorised employer nor had she completed 12 months' registered unemployment so as to take her outside the requirements of the scheme. The argument that her consequent lack of a right to reside was disproportionate was defeated by the decision of the House of Lords in Zalewska v Department for Social Development [2008] 1 WLR 2602. That was a strongly similar case in which an argument about the proportionality of the workers' registration scheme was made, and which was rejected by the Lords. In the present decision, Lord Justice Laws giving the lead decision said that the decision in Zalewska, 'upheld the proportionality of the scheme as a whole' and could not be distinguished (paragraphs 10-16).

The Court held that there was no breach of the claimant's rights (under Article 7 of the European Charter of Fundamental Rights and Article 8 of the European Convention on Human Rights) to private and family life. Referring to the decision of the Court of Appeal in Kaczmarek [2008] EWCA Civ 1310, Lord Justice Laws noted that there is a distinction between lawful presence in this country and the right to reside here. The claimant in the present case did not have the right to reside under the IS rules, but was lawfully present and (as it happened) no steps were taken to remove her from the country. If such steps had been taken, she would have been entitled to appeal and raise arguments about her rights to private and family life; but 'none of this requires that she be accorded a right of residence... in short, the protection of her fundamental rights did not require that she be accorded such a "right of residence"' (paragraphs 24-26).

Note: at time of writing, it was understood that consideration was being given to an application for permission to appeal to the Supreme Court.

Summary

The claimant suffered from foot and ankle problems, anxiety and depression. On a reapplication of the work capability assessment 0/1/CA), she was scored 0 points. Her appeal to the First-tier Tribunal was rejected. Regarding Activity 1 of the WCA (mobilising), the tribunal held that although the claimant could not walk far and may not be able to use crutches, she did not suffer from upper body problems and could be expected to mobilise by using a wheelchair.

Judge Gamble allowed the claimant's further appeal and remitted the case to a fresh tribunal. The tribunal had erred in applying Activity 1. The test was of the claimant's ability to mobilise including by using a wheelchair or other aid, if such an aid could 'reasonably be used'. The tribunal had not applied this reasonableness test properly. It had only considered her upper body strength. As her representative contended (and as supported by the Secretary of State and accepted by Judge Gamble), the tribunal should have made findings of fact at least about whether there had been any medical advice to use or not to use a wheelchair, whether the claimant would in reality have access to a wheelchair, and whether one would be suitable for her given that she lived in an upstairs tenement flat. The judge thought that 'in almost every case', such considerations or similar ones should apply, although the activity must always be applied on an individual basis (paragraph 9).

Note: the wording of the Activity was amended slightly from 28 January 2013 by SI 2012 No.3O96, but not so as to remove the reasonableness test. However, see also MG v Department for Social Development (ESA).

Summary

In this decision, the Court of Appeal holds that it has jurisdiction (under the Tribunals, Courts and Enforcement Act 2007 – ‘the Act’) to consider an appeal against a decision of the Upper Tribunal refusing to set aside its earlier refusal of permission to appeal. Although the Court had such jurisdiction, that did not mean that the Upper Tribunal’s original refusal to grant permission was also appealable to the Court. 

The claimant, having lost her personal independence payment (PIP) appeal at the First-tier Tribunal, was refused permission to appeal to the Upper Tribunal, first by the First- tier Tribunal and then by the Upper Tribunal. She then asked for that latter refusal to be set aside, under rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008, SI 2008 No.2698. The Upper Tribunal refused to set the refusal aside, holding that it was not (as required by regulation 43) ‘in the interests of justice’ to do so and that there had been no ‘procedural irregularity’ in the Upper Tribunal’s refusal to grant permission to appeal. 

In the Court of Appeal, Lord Justice Lewis held, 

‘...I am satisfied that section 13 of the Act confers jurisdiction on the Court of Appeal to consider an appeal against a decision of the Upper Tribunal refusing to set-aside its earlier decision refusing permission to appeal to the Upper Tribunal against a decision of the First- tier Tribunal. Any such appeal would, however, have to be based on arguable grounds that the Upper Tribunal erred in considering that that it was not in the interests of justice or in finding that there was no procedural error or irregularity in the proceedings in the Upper Tribunal as specified in rule 43. The appeal would not be an appeal against the refusal of permission. It would be an appeal against the refusal to set aside.’

Decision in brief

Three-month period from which claimant must be entitled begins on the day the claim is determined, not the earlier date on which the claim is received - late appeal where both any time revision and official error supersession refused - appeal can be made against official error supersession decision and appeal time limit runs from date of that decision

Summary

The claimant was able to get HB as a full-time student. He chose not to take out a student loan for fees and maintenance, based on his conscientious belief that charging and paying interest were forbidden by his religion (the claimant was a Muslim). He supplied the money himself from his savings and through part-time work. The local authority treated the claimant as having income based on the student loan he could have taken out, and as a result, his income was too high to qualify for HB. The First-tier Tribunal refused the claimant’s appeal. 

Judge Poynter allowed the claimant’s further appeal and substituted a decision that the claimant was not to be treated as possessing the student loan. The relevant rule was at regulation 64(3) of the Housing Benefit Regulations 2006, SI No.213. That requires that a student is treated as possessing a student loan in respect of an academic year where ‘he could acquire a student or a postgraduate loan in respect of that year by taking reasonable steps to do so’. On the facts of this case, it was not a reasonable step for the claimant to have taken a loan. The correct approach involved disapplying previous authority on this, that of Commissioner (as he then was) Powell in CH/4429/2006. That decision held that the word ‘reasonable’ in the rule was merely about the mechanical steps necessary to take out the loan and not matters such as the motives and religious beliefs of the claimant.

Judge Poynter declined to follow CH/4429/2006 as he considered it wrongly decided. Instead, he decided that ‘a judgment as to what is reasonable falls to be made having regard to all the personal circumstances of a claimant and, of course, all the other relevant circumstances’ (paragraph 8). In this case, although the claimant undoubtedly had the capacity to take the steps required to acquire the loan, it ‘would not have been reasonable for him to have violated his strongly held and conscientious religious beliefs by doing so’ (paragraph 9). The judge emphasised the fact-sensitive and personal nature of his judgment. It was not a decision that all Muslim students who do not take out a student loan are similarly exempt from the rule, or that students of other religions, or none, must always have the notional loan applied to them (and so Judge Poynter rejected the argument of the Secretary of State that his decision would involve a breach of the Equality Act 2010 regarding students of no religion). Contrary to CH/4492/2006, considered Judge Poynter, one of the ‘reasonable steps’ under regulation 64(3) was deciding whether to apply for a loan; it followed that the decision maker must be satisfied that it would have been a reasonable step for the claimant to have applied for a loan before he could be treated as notionally possessing one. There was nothing mechanical about the claimant’s choice there: ‘even those students whose only concerns are that they do not wish to leave university with a substantial amount of debt’, held Judge Poynter, ‘will need to undertake some moderately complex calculations’ to decide if they could manage without the loan (paragraph 95). The judge disagreed with the Secretary of State that interpreting regulation 64(3) as he had done would be administratively unworkable and invite ‘potentially opportunistic’ claims (paragraph 144). Most students simply cannot get HB anyway; and students who wish to make an ‘opportunistic’ claim would actually have to decline the student loan for which they were eligible, and somehow fund their tuition and maintenance themselves – with earnings taken into account for HB. 

‘Finally’, held the judge, ‘if the position is still insufficiently clear, then under the principles established by the House of Lords in Kerr v Department of Social Development, [2004] UKHL 23 (also reported as R 1/04 (SF)), it is for claimants to establish that their objections to taking out student loans are principled and conscientiously held and are not merely an attempt to obtain a perceived financial advantage’ (paragraph 66).

Comment from CPAG

Thanks to the claimant for sending us this decision. Both it and CH/4429/2006 are decisions of a single Judge of the Upper Tribunal/Commissioner and, in that sense, are of equal weight. However, the present decision is the most recent and has the advantage of a lengthy review of the reasoning of CH/4429/2006, so it should be preferred. It is a significant change in the approach to what the ‘reasonable steps’ are for treating a claimant as notionally entitled to a student loan. However, the judge’s caveats about the fact-sensitive nature of the judgment and the requirement for the claimant’s objection to the loan being ‘principled and conscientiously held’ are important.

Summary

The claimant was entitled to both child tax credit (CTC) and working tax credit (WTC). She left the UK for temporary absences in Spain during 2020, including for just over 11 weeks in July, just over two weeks in September and about 13 and a half weeks in October. She had left to seek work in Spain following the cancellation of her work in the UK due to the pandemic. On each occasion, she expected to be absent just for a few weeks; but on each occasion her return to the UK was delayed by Covid-related travel problems such as cancelled flights and the need to quarantine. In February 2021, HMRC (on review) decided that she was not entitled to tax credits from the point in August 2020 when she had been absent from the UK for more than eight weeks. Following mandatory reconsideration, the claimant appealed and in August 2021 the First-tier Tribunal dismissed the appeal. 

Judge Buley KC dismissed the claimant’s further appeal regarding WTC entitlement but held that European co-ordination rules provided for a different outcome in CTC. Permission to appeal had been granted on the basis that it might be desirable for the Upper Tribunal to give guidance on cases (such as this) where, due to the pandemic, a tax credit claimant had not been able to comply with the so-called ‘eight-week rule’ (common to WTC and CTC), under which for tax credits any temporary absence should as a default not exceed eight weeks. However, the judge found that there was no exception to that rule, which was at regulation 4 of the Tax Credits (Residence) Regulations 2003, SI 2003 No.654. The judge concluded (paragraph 3) that no legislative ‘easement’ or amendment had been made during the pandemic, and that ‘the eight-week rule does not admit of any possibility of extension’. Although HMRC ‘appears to consider that it has a discretion, in exceptional cases, to waive the requirements of the eight- week rule’ (HMRC referred to ‘powers of payment and management’), the extent of that was unclear. The judge ‘strongly’ doubted that HMRC was correct to believe it had such a power (without definitively ruling on the point). In any case, such discretion was not the subject of the appeal jurisdiction, and ‘tribunals have no power or discretion to extend time by reference to extenuating reasons for the person’s absence beyond 8 weeks’.

However, the judge also noted that the eight- week rule did not apply in CTC cases where the claimant’s absence from the UK was in an EU member state. This was because of the co-ordination provisions in EU Regulation 883/2004, which applied to CTC as a ‘family benefit’ for the purposes of the regulation. HMRC conceded that in relevant cases a claimant satisfies the requirement to be present in the UK even though in an EU member state. ‘In such cases’, said the judge, ‘for so long as it continued to apply, HMRC concedes that the effect of EU Reg 883/04, “on the coordination of social security systems”, is that the 8-week rule could not apply to a person whose absence from the UK was occasioned by their presence in an EU Member State. This rule under Reg 883/04 was not in any direct way linked to the Covid-19 pandemic, and will apply regardless of the reason for absence from the UK in excess of 8 weeks, but it would continue to apply at least for much of the period of the pandemic (at least until the end of the “implementation period” of the UK’s exit from the EU, on 31 December 2020)’ (paragraph 3(ii)). Regarding the period after 31 December 2020, the judge said that given the complexities of the status of retained EU law, ‘I make no comment one way or another as to its relevance thereafter’ (paragraph 51). 

Comment from CPAG

The judge’s views on the correctness of HMRC’s views on its ability to waive the eight-week rule are clear, although not strictly binding. HMRC’s concession on the possible application of EU Regulation 833/2004 in the temporary absence context is, as the judge says, significant: ‘since it appears that it must apply to every claimant for CTC who travels to an EU member state rather than to any other country outside of the EU, with the result that, for such persons, there is no rule that limits their absence from the UK to a period of 8 weeks. That will have consequences not only for those prevented from returning to the UK by reason of Covid- related travel restrictions, but also for those who do not return for any other reason’ (paragraph 51).