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Summary

The claimant had been overpaid IS following undisclosed absences abroad which were of sufficient length to terminate entitlement. A civil penalty of £50 was imposed. The claimant's appeals to the First-tier Tribunal, in which she argued that she was abroad only because the NHS would not give her the treatment she wanted, and that she was not aware that she might lose entitlement while abroad, were rejected. The tribunal (which had refused to adjourn on the basis of the claimant's ill health) said that it followed from its finding that the claimant had caused the overpayment by her failure to disclose her absences abroad that her appeal against the penalty must fail. 

Judge Rowland dismissed the claimant's further appeal on the basis that the overpayments were recoverable from her and that, on the facts, a civil penalty was applicable. The facts showed that the claimant had been clearly advised of her need to report an absence abroad, and she had undoubtedly failed to do so (paragraphs 4-6). However, he also held that the tribunal had erred in considering that the application of a civil penalty was inevitable, and in not considering that the imposition of the penalty was discretionary. But, on the facts of the case, a penalty was appropriate and the claimant had not been disadvantaged by not being able to argue about the civil penalty in person. 

Regarding civil penalties, the relevant legislation was section 115D of the Social Security Administration Act 1992. That provides that a penalty 'may' be imposed where a claimant fails 'without reasonable excuse' to provide required information or evidence, or to report a change in circumstances, an overpayment results, and s/he has not been charged with an offence or cautioned. The judge noted that whether a person has 'reasonable excuse' raises the question of whether the person's actions or inactions were a 'reasonable thing for a responsible person, conscious of, and intending to comply with, his or her obligations regarding benefit but having the experience and other relevant attributes of the person in question... ' (paragraph 11). Also, the word 'may' in section 115D connoted the existence of a discretion. Even if a claimant was partly to blame, 'social security claimants often have low incomes and find it difficult enough to repayment and overpayment without a penalty being added... ' (paragraph 13). The judge was satisfied that there was the right of appeal about all such matters (paragraph 19); but on the facts of the present case was also satisfied that the tribunal had not materially erred in law as 'the overpayment was caused by her fault and no-one else's' (paragraph 22).

Summary

The claimant claimed HB in December 2012. He had previously owned the property, and formal transfer of ownership (to his son) had not occurred until March 2010. The local authority refused his claim, holding that he was not liable for the rent on the basis that he had previously owned the property and was within five years of ceasing to own it. However, the claimant had, since January 2001, been subject first to a High Court restraint order followed by an inhibition in the Land Registry, then a Crown Court confiscation order and then appointment of a receiver to enforce the confiscation order, with the effect that he was prohibited from disposing of the property himself, and the transfer to the son was under the power of the receiver. Nevertheless, the First-tier Tribunal found that the claimant was the 'registered legal owner' of the property until March 2010, that he was therefore to be treated as not liable for rent and that he was therefore not entitled to HB. 

Judge Levenson allowed the claimant's further appeal and substituted a decision that he was not to be treated as not liable for rent, The tribunal had erred in regarding claimant as the 'owner' of the property up until March 2010. The relevant rule regarding being treated as not liable for rent in these circumstances was at regulation 9(1)(h) of the Housing Benefit Regulations 2006, No.213. 'Owner' is defined at regulation 2(1) and provides that it is 'the person who... is for the time being entitled to dispose of the fee simple, whether or not with the consent of other joint owners'. 

The judge held that it was clear that the fee simple was included in the restraint order, the Land Registry inhibition and the appointment of a receiver to enforce the confiscation order (paragraph 15). It was 'absolutely clear' that from the time of the issue of the restraint order in January 2001 , the claimant was not the person who for the time being was able to dispose of the fee simple, and there would have been severe legal consequences had he attempted to do so. The judge said that 'neither the local authority nor the First-tier Tribunal ever got to grips with the implications for this case of the definition in regulation 1(2) (paragraph 18).

Summary

The claimant failed to attend an interview under the Work Programme, and her reasons for not attending were not supplied until well outside the five-day period allowed for showing 'good cause' for failing to carry out work-related activity. A sanction was imposed on the claimant. On appeal, her argument was that she had mental health problems, there were problems with her medication and her mother had died in the preceding months. The First-tier Tribunal dismissed the claimant's appeal as she had not shown good cause within five days of being notified of her failure to comply.

Judge Wright, allowing the claimant's further appeal, substituted a decision that the claimant's ESA was not subject to a sanction. Although the Claimant had not shown good cause within five days, the tribunal had erred in failing to consider whether the initial requirement to attend the interview under the Work Programme was reasonable, having regard to her circumstances, as provided for by regulation 3(4)(a) of the Employment and Support Allowance (Work-Related Activity) Regulations 2011, No.1349 ('the WRA regulations') (paragraph 35). On the facts of this case, that was something the tribunal should have considered, as it was clearly a matter that was raised by the appeal, even though the specific issue cited had been that of good cause (paragraphs 37-40).

The judge accepted that, following the decision in SSWP v TJ and others [2015] UKUT 56 (AAC), 'good cause' had to be shown within five working days, as provided for by regulation 8 of the WRA regulations, and that time could not be extended (paragraphs 23- 24). However, the judge agreed with the argument made by the Secretary of State that the tribunal was able to consider for itself whether, on the facts, the prior requirement to attend the interview was reasonable. Although at the time of the decision under appeal the claimant's full circumstances may not have been known to the decision maker, later evidence shown gave a fuller picture of circumstances at that time and could still be taken into account. On the evidence which was, and should have been, before the tribunal (including the claimant's action plan which the Secretary of State had erroneously failed to supply to the First-tier Tribunal), an issue clearly arose as to whether it was reasonable for the claimant to attend the interview. That was a prior and separate issue to good cause, and the tribunal erred in not considering that (paragraphs 37-40).

Decision in brief

Someone who needs to use incontinence pads to be able to manage incontinence scores two points under descriptor 5(b) 'Needs to use an aid or appliance to be able to manage toilet needs or incontinence' - an incontinence pad is an 'aid' -therefore someone who needs to use incontinence pads cannot manage her/his incontinence unaided - either bowel or bladder incontinence may be relevant

Decision in brief

Requirement is that claimant has a mental condition that (in the context of reading problems) affects his ability to read or learn to read - regarding following 'the route of a journey' it is the route that matters, not the destination, and so the journey envisaged does not have to be a local one - in practical terms it may be sufficient to consider a local journey but it would be wrong to apply that as a matter of law - the only qualification in the descriptors is the distinction between familiar and unfamiliar journeys -the test is general in nature, without reference to the individual characteristics of the route, other than whether it is familiar or unfamiliar

Decision in brief

It is not axiomatic that an apparently purposeless appeal must lapse -this is especially so where the section 18 decision has not been appealed - where there is no section 18 appeal and the outcome of the section 16 appeal may affect the section 18 decision, the section 16 appeal should continue unless or until an effective appeal against the section 18 decision is lodged

Decision in brief

Possession of a European Health Insurance Card (EHIC) not proof of comprehensive sickness insurance in circumstances in which there is no other member state required to reimburse the UK with costs of healthcare - on facts of the present case, claimant clearly habitually resident in UK rather than on a 'stay' and UK could not successfully have claimed costs from Italy on the basis of the EHIC

Decision in brief

But primary focus is on the cognitive or intellectual function of making decisions - physical disabilities can be the source of difficulties with these, but it will only be in 'the most extreme set of circumstances that limitations flowing from a physical disability alone will result in a person having limitations in relation to making budgeting decisions' as set out in Activity 10

Summary

This decision of the Court of Appeal considers the so-called ‘past presence test’ for disability benefits in the context of claimants who are European nationals.

The claimants (BK and MM) were, respectively, an Irish national aged 12 who came to the UK with his mother, and claimed disability living allowance (DLA), and a German national who came to the UK to be cared for by her daughter and claimed attendance allowance (AA). Where a European claimant is covered by the European Union (EU) co-ordination rules and is habitually resident in the UK, rules (regulation 2A of the Social Security (Attendance Allowance) Regulations 1991, No.2740, and regulation 2A of the Social Security (Disability Living Allowance) Regulations 1991, No.2890) provide that the past presence test does not apply if the claimant can demonstrate a ‘genuine and sufficient link to the United Kingdom social security system’. In BK v SSWP and SSWP v MM [2016] UKUT 547 (AAC), it had been held by Judge Jacobs in the Upper Tribunal that neither claimant could demonstrate a genuine and sufficient link to the UK (the requirement for a link to the UK social security system was unlawful as contrary to EU law). (Judge Jacobs had also held that ‘mere’ residence in the UK did not allow aggregation with periods of residence in the previous EU country: the claimants did not pursue their appeal against this aspect of the decision.)

Allowing the claimants’ further appeals, the Court of Appeal held that both claimants could demonstrate a genuine and sufficient link to the UK. Both were European nationals who fell within the European ‘co-ordination’ rule at EC Regulation 883/2004, and it was common ground that both were habitually resident in the UK (paragraphs 34–35). Applying principles from European caselaw, when establishing whether the claimant had a ‘genuine and sufficient link’, all relevant evidence had to be taken into account, including family and other personal circumstances. Evidence of the ‘motives, intentions and expectations’ of the claimant were not to be ignored. Also, it was common ground that the required link was to the UK and could not be to the UK social security system (paragraphs 67–69).

Regarding the claimants in the present decision, the Upper Tribunal had erred in considering the motives of BK, or rather those of his mother, as irrelevant. Those motives included that BK’s mother relocated to the UK, her country of nationality, following domestic violence, needed the support of relatives in the UK and severed all links with the Republic of Ireland. In those circumstances the decisions refusing the DLA were flawed in principle and BK did have a genuine and sufficient link to the UK (paragraphs 74–76). Similarly, the Upper Tribunal should have taken into account MM’s motive, intentions and expectations, which included her severe disability and need for support on a daily basis from her daughter in the UK. Again, therefore, the decision was flawed in principle and with regard to all the relevant matters, MM did have a genuine and sufficient link to the UK (paragraphs 79–85).

Decision in brief

Refers to ability to cook using a conventional cooker without prompting, supervision or assistance and (if cannot do so) ability to cook without such help using a microwave - but if claimant does need prompting, supervision or assistance, consideration needs to be given to a higher scoring descriptor (d to f), as the highest scoring descriptor is the one that applies

Summary

In this decision a two-commissioner tribunal of Northern Ireland Commissioners considered the correctness of a decision to decide an ESA appeal on the papers, in a case where the claimant had not received the official form enquiring whether or not he wanted an oral hearing.

Chief Commissioner Mullan and Commissioner Stockman decided that the tribunal had erred in not holding an oral hearing. In so doing, they considered the relevant Northern Ireland legislation, in particular regulations 39 and 46 of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 {SI No.162). That requires the appellant to indicate his choice of hearing on a form, and includes that if the form is not returned within the time limit, the appeal may be struck out. The Commissioners held that, on the facts of the case, it was 'clear that the appellant had not unequivocally waited his right to an oral hearing' (paragraph 43). The regulations were silent on what should happen where the enquiry form was not returned but the appeal was not struck out. Holdin,9" a paper 'hearing' was the practice of The Appeals Service (TAS) in Northern Ireland, but there was no basis for that in the regulations, and 'it would have been equally valid to have listed the appeal as an oral hearing with notification to the appellant' (paragraph 44).

Further, the Commissioners considered that there was a basic right to an oral hearing of an ESA appeal. In Miller v Sweden [2005) ECHR 71, the European Court of Human Rights held that the right to a 'fair and public hearing' at Article 6(1) of the European Convention on Human Rights (ECHR) entailed an entitlement to an oral hearing, unless there were 'exceptional circumstances'. Such exceptional circumstances could arise in social security schemes where the outcome 'usually depended upon the written opinion given by medical doctors' {decision quoted at paragraph 31 ). Taking into account statistics showing the much higher success rate for appellants in ESA appeals where there was an oral hearing, in the present decision the Commissioners concluded that, 'it appears to us that ESA appeals have characteristics which mean they are more accurately determined on the basis of oral evidence together with documentary evidence than on the basis of documentary evidence alone' (paragraph 37). Therefore, the principles in Article 6(1) implied a right to an oral hearing in ESA appeals, 'and we further accept that in general terms that there are not exceptional circumstances that justify dispensing with an oral hearing within the meaning of Miller v Sweden' (paragraph 38).

Comment from CPAG

As a decision of the Northern Ireland Commissioners, this decision is formally of persuasive rather than binding authority in Great Britain. However, it has been highlighted by the Upper Tribunal in Great Britain. The situation is further complicated in that in Great Britain the directly relevant provision is at rule 27 of Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI No.2685), which provides in effect that an oral hearing of any appeal must be held, unless all of the parties have consented to, or not objected to, a decision on the papers and the tribunal considers that an oral hearing is not required. More widely, however, the emphasis on the importance of oral hearings in ESA appeals (the statistics used were from appeals in Great Britain) is noteworthy in the context of the current intention to move all social security appeals online - see Bulletin 254, p3, and the article on p5 of this Bulletin.

Summary

The claimant, a British national, was resident in Northern Ireland. Her award of working tax credit included a childcare element. The childcare provider was located in the Republic of Ireland. Eventually, HMRC decided that, because the childcare provider was not an approved provider outside the UK, there was no entitlement to the childcare element, although it did not attempt to recover the overpayment from the claimant. The claimant's appeal was dismissed.

A Tribunal of Northern Ireland Commissioners (Chief Commissioner Mullan, Commissioner Stockman and Deputy Commissioner Ward) allowed the claimant's further appeal, and substituted a decision that the claimant was not disentitled solely on the basis that her childcare provider was located outside the UK and therefore not providing eligible childcare within regulation 14(2) of the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002 {SI No.2005). The claimant had a right (under Article 56 of the Treaty on the Functioning of the European Union) to receive services from a childcare provider in another member state, and the decision to find that she was not entitled to the childcare element was unlawful under EU law (paragraphs 43, 90-92, 105(i) and (viii)).

The Commissioners raised a doubt about the existence and validity of the regulations providing for authorisation of childcare providers outside the UK, but held that even if they were, they could not (under EU law) be accepted as a proportionate scheme of authorisation, not least because, as HMRC described them exclusively in terms of Crown servants overseas, they were insufficiently transparent and accessible (paragraphs 79, 90-92, 105(vii)).

Note: as a decision of the Northern Ireland Commissioners, this decision is formally of persuasive rather than binding authority in Great Britain. However, it considers legislation applying in the UK, and has been highlighted by the Upper Tribunal in Great Britain.