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Decision in brief

Falling asleep during the day does not equate to loss of consciousness - claimant fell asleep for 45-60 minutes each day due to general fatigue and lethargy - Activity 10 must be read as a whole, and the activity refers to 'consciousness during waking moments' - that meant when a claimant was not sleeping - decision of the Northern Ireland Commissioner in OM v Department for Social Development (ESA) [2013] NI Com C17 approved

Decision in brief

Someone who uses a colostomy bag scores two points under descriptor 5(b), 'Needs to use an aid or appliance to be able to manage toilet needs or incontinence', even though s/he can manage the bag unaided - to score such a claimant nil points under descriptor 5(a) produces an absurd result

Decision in brief

An aid does not have to be specifically designed, made or sold for the purpose of overcoming the limitation on function (NA v SSWP [2015] UKUT 572 (AAC) approved in that regard) - the aid or appliance must relate in some way to the particular activity in question - but a bed does not count as an 'aid' in the activity of dressing and undressing - an 'aid' has to be required for carrying out the activity, not just for carrying it out in a particular manner - using a bed for dressing is a usual or normal way of performing the activity and by using one the person is not demonstrating a limitation on carrying out the activity, but rather with one manner of carrying out the activity

Decision in brief

Ability to get in or out of an unadapted bath or shower is what is being assessed

Decision in brief

That will apply where supervision is reasonably required, including with regard to the possible seriousness of the consequences if supervision is not provided - 'I regard it as inconceivable that the legislation intended that claimants who might be at risk of serious harm if left to prepare and cook a meal unsupervised, such as those with epilepsy and similar conditions, could only qualify for points under Activity 1 if they could establish that they were likely to come to some form of harm, serious or otherwise, on more than half the days in the required period'

Decision in brief

Where award made before claimant turned 65 deterioration must have occurred before age ' 65 - but where (as here) award was made (on supersession) after age 65, simply not possible in any circumstances to get the high rate - Schedule 1, paragraphs 2 and 6 of the Social Security (Disability Living Allowance) Regulations 1991 applied

Decision in brief

Lithuanian national with pension from Lithuania and none from UK- UK not the competent state for cash sickness benefit (eg, attendance allowance) in this situation - therefore not entitled to attendance allowance - decision of European Court of Justice in Hudzinski (Cases C-611 and 612/10) does not alter that - Hudzinski does provide that the non-competent state may have the power, and in some cases even a duty, to pay benefit in some cases including, potentially, where claimant would be deprived of all benefit or of entitlement that has been brought by contributions or taxes, and in some cases of dual entitlement for migrant workers - but attendance allowance not in any of those

Decision in brief

That is not changed by fact that claimant has an immigration right to reside as a family member who has retained the right of residence under regulation 10 of the Immigration (European Economic Area) Regulations 2006, following departure of the jobseeker from the UK - permission to appeal to the Court of Session granted

Summary

The appellant had been entitled to disability living allowance(DLA). On transfer to personal independence payment (PIP), she was eventually given an award of both components, but not at the same level as the DLA had been. At no point was a face-to-face medical examination carried out. The First-tier Tribunal rejected her appeal, but expressed regret that no such examination had been carried out and that it did not have the power to direct that a medical examination should take place.

Judge Gray allowed the claimant's further appeal, holding that the tribunal had erred in law in considering that it did not have the power to direct a medical examination. Such a power was expressly provided for at section 20(2) of the Social Security Act 1998. That provides that a First-tier Tribunal may, 'if conditions prescribed by Tribunal Procedure Rules are satisfied' and it considers it necessary, refer the appellant to a healthcare professional approved by the Secretary of State for medical examination. Schedule 2 of the Tribunal Procedure Rules (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, No.2685 provides that the issues regarding which such a direction can be made include whether the conditions for entitlement to PIP are satisfied.

In the present case, it was clear to Judge Gray that the tribunal did want to refer the appellant for a medical examination and, in thinking that it could not, it misunderstood the law (paragraph 14). Commenting on the operation of the rule, she said, 'it is for the FTT [ie, the First-tier Tribunal] to assess the quality of the available evidence on an appeal against an outcome decision, but, as is now clear to me, the FTT can itself direct a medical assessment' (paragraph 28).

Comment from CPAG

This is a useful reminder of the power of the First-tier Tribunal to direct a medical examination and so a medical report. It also applies (for example) where the tribunal wants medical evidence, or further medical evidence, about whether the claimant has limited capability for work or for work-related activity- ie, and so to employment and support allowance and universal credit. However it should be remembered that this power only arises where the tribunal considers such a direction is necessary (ie, not merely because the appellant wishes it) and also that the source of the evidence will be the relevant contractor for the DWP medical service.

Summary

The claimant was awarded four points under Activity 2b by the First-tier Tribunal - ie, on the basis that he could stand and move more than 50 metres but not more than 200 metres. This was despite evidence from the claimant that he was in constant pain when walking and that pain affected his ability to walk. The tribunal noted that the claimant had said that he had walked without stopping from the waiting room to the tribunal room, a distance of 33 metres.

Judge K Markus QC allowed the claimant's further appeal and remitted the case to a new tribunal. The tribunal had erred in its approach to the mobility descriptors, and in particular failed to address whether the claimant could walk to an 'acceptable standard', as required by regulation 4 of the Social Security (Personal Independence Payment) Regulations 2013, No.377 (paragraph 15). The tribunal was not relieved of that requirement merely because it had not been specifically raised by the claimant. The tribunal did have evidence that the claimant suffered pain throughout while walking, that his arm went into spasm and that his leg gave way, and in his request for mandatory reconsideration had said, 'I would rather push through the pain and stay as active and independent as long as I can ... l think it is fair to say that I cannot walk fifty yards as I struggle at every step' (paragraph 10).

The claimant's appeal was opposed by the Secretary of State, who argued that the pain was not significant enough to prevent the claimant walking up to the point he stopped, and that it was only at that point that he was no longer able to walk to an acceptable standard. The judge disagreed with that submission. lt could not property be assumed that merely because the claimant was able to keep walking for a certain distance, any pain he experienced while walking was not relevant. Pain was 'clearly a potentially relevant factor' to the question of whether the claimant could walk to an acceptable standard (paragraph 11). The judge cited with approval the decision of Judge Parker in CPIP/2377/2015, where she said that, 'matters such as pain, and its severity, and the frequency and nature, including extent, of any rests required by a claimant, are relevant to the question of whether a claimant can complete a mobility activity descriptor "to an acceptable standard"' (quoted at paragraph 13).

Comment from CPAG

Not only pain and the effect of pauses or stops, but also factors such as dizziness and shortness of breath could potentially affect whether a claimant can walk 'to an acceptable standard'. For a similar decision in which the facts required a focus on pauses or stops, see KN v SSWP [2016] UKUT 261 (AAC). It should also be borne in mind that (as elsewhere in the assessment) ability is also to be assessed with reference to whether it can be performed safely, repeatedly and within a reasonable time period.

Summary

The claimant was selected to participate in the Mandatory Work Activity Scheme. Shortly afterwards, he was notified that he was required to begin work as a volunteer with the Salvation Army, for 30 hours a week for four weeks. While on the scheme, he was asked to leave it on the basis of an allegation that he was upsetting other volunteers. A 13-week sanction was imposed on him. His appeal against that was rejected by the First-tier Tribunal. Only on appeal to the Upper Tribunal did it emerge that: (1) at the point the claimant was referred to the Mandatory Work Activity Scheme, he was already working voluntarily in a charity shop and the DWP knew that, and (2) official guidance applied to the scheme at the relevant time (2013) included that a claimant already working must not be referred to the scheme.

Judge Wright allowed the claimant's further appeal so as to remove the sanction. He agreed with an eventual concession by the Secretary of State that, had proper regard been had to the 2013 guidance, then the claimant ought not to have been referred to the scheme, but having been wrongly referred he subsequently had good reason for not participating in the scheme because he ought not to have been put on it (paragraph 17).

Also, there had been a breach of the 'prior information duty' which applies regarding referral to a mandatory (or 'work for your benefit') schemes. The judge cited the description by the Court of Appeal in Secretary of State for Work and Pensions v Jeffrey and Bevan [2016] EWCA Civ 413 of that duty as a 'simple proposition about administrative fairness', in which the Secretary of State had a duty to ensure that claimants had sufficient information about a scheme and sufficient opportunity to make relevant representations about their possible referral to it (paragraph 2). In this case, it seemed that the decision maker had not had reference to the relevant guidance, an error compounded by the Secretary of State then breaching his duty under rule 24(4)(b) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, No.2685, to provide the First-tier Tribunal with 'copies of all documents relevant to the case' - ie, in this case the official guidance about referral to the scheme. On this point, the judge had reference to his own decision in ST v SSWP [2012] UKUT 469 (AAC) (Bulletin 238, p14), and considered that particular point was not doubted by the subsequent decision in FN v SSWP [2015] UKUT 670 (AAC) (Bulletin 250, p10) (paragraph 4). The judge later commented that it did not seem to him that the decision in FN meant that a tribunal does not err in law where it decides the appeal and ' ... if it is later shown that other relevant evidence was available and ought to have been before it' (paragraph 20).

Comment from CPAG

The Mandatory Work Activity Scheme ended in April 2016. However, Judge Wright's comments about the general nature of the prior information duty and the Secretary of State's duty to provide relevant information to tribunals remain pertinent. He is evidently especially keen to emphasise the latter. At least on his reading of the decision in FN, when a tribunal proceeds without such evidence, there remains a distinct possibility of error of law where it is clear that the tribunal 'ought' to have had the evidence.

Summary

In this decision, the Upper Tribunal considered a number of cases in which the main issue was whether a European national continued to have the right to reside as a jobseeker, having been subject to the requirement to have 'compelling evidence' of a 'genuine chance of being engaged in employment' (the GPOW test), as required (after the relevant period) by regulation 6(7) of the Immigration (European Economic Area) Regulations 2006, No.1003 ('the EEA Regulations').

Judge Ward began by recalling that the right of jobseekers under European Union law is derived from the decision of the European Court of Justice in Antonissen, Case C-292/89. In that immigration case, the Court (at paragraph 21) held that a jobseeker was entitled to stay in a member state if he 'provides evidence that he is continuing to see employment and that he has genuine chances of being engaged'. Regarding the meaning of a 'genuine chance', the judge held that a chance is proved by reference to the facts (paragraph 35); that a genuine chance was one that offered 'real prospects of success' in getting a job (paragraph 42); he rejected the argument that it simply meant 'more than marginal' (paragraph 43). The genuine 'chance' has to be something coming to fruition within .a 'reasonable period of time', although that could include the future effect of attainment of qualifications or completion of training (paragraphs 46-48); there was no 'absolute limit' on the right for which jobseeker status could be retained, or step change in what had to be proved (paragraph 49); however it was necessary to take the preceding period of six months (or longer)'s lack of success in getting work into account in assessing 'genuine chances' (paragraph 51).

Turning to the requirement in the EEA Regulations for 'compelling evidence' as part of the GPOW test, the judge first rejected the argument that there was authority that the requirement was in contravention of European Union (EU) law (paragraph 53). The Secretary of State argued that the UK was clearly entitled to require a 'more compelling' case after six months' residence while unemployed. The judge did not disagree, to the extent that it did not impose anything further to the 'genuine chance' test set out in Antonissen; that also involved a burden of proof based on probabilities, so that the requirement for 'compelling evidence': 'does not add anything, save for making express to decision makers and tribunals what was the case anyway'

(paragraph 56). What the test could not do was anything more than that The judge said, 'Insistence on "compelling" evidence may, if care is not taken, all too easily result in raising the bar above the level I have found to be required, namely chances that are founded on something objective and offer real prospects of success in obtaining genuine and effective work with a reasonable period' (paragraph 57). He considered that approach was consistent with that of Judge Sir Crispin Agnew of Lochnaw QC in KS v SSWP [2016] UKUT 269 (AAC) (Bulletin 253, p13) (paragraph 59).

In the course of his decision, the judge made reference to the official guidance on the GPOW test, in paragraphs 073099 and 073100 of the Decision Makers' Guide. That, in effect, states that 'compelling evidence' is limited to a job offer or awaiting the outcome of a job interview. Although the judge declined to comment in detail on the guidance, he did point out that it was 'internal guidance, not law' (paragraph 30), and that tribunals 'should be alive to the risk that, because the Guidance is framed in the limited way in which it is, GPOW interviews may have been conducted, and/or the Secretary of State's submissions to the tribunal written, by reference to a restricted palette of issues' (paragraph 61). In one of the individual cases, the judge held that the tribunal had correctly treated the guidance as providing some examples of what might be compelling evidence, but that there were other ways in which the requirement might also be met (paragraph 90).

Note: See also the article on p4.