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Summary

The claimant was a national of a European 'AB' state. Before claiming JSA and eventually being awarded it in April 2014, he was found to have been exposed to trafficking on two occasions. Although he was awarded JSA with a finding that he had the right to reside as a jobseeker, he appealed as he wished to argue that he had a retained worker status. The First-tier Tribunal rejected the claimant's appeal, finding that there was insufficient documentary evidence to hold that the claimant had worker or retained worker status.

Judge Ward rejected the claimant's further appeal. Although the tribunal may well have erred in finding that there was insufficient documentary evidence, and in not investigating whether the claimant had been a worker before the first trafficking incident, that did not matter regarding an appeal about JSA in which the claimant in fact had already been awarded the benefit (paragraphs 18-23). On the facts of the case, the judge considered that the claimant's work during the trafficking incidents was not sufficient in itself to give him worker status as it was not enough to be 'genuine and effective'. However, the judge noted that it was not the case that only lawful work was relevant to establishing worker status (JA v SSWP (ESA) UKUT 122 (AAC) cited), and ' ...a trafficked person is not precluded from arguing their case on ordinary principles - including that they can demonstrate that they are a worker or have retained worker status' (paragraphs 21-22).

Underlying the claimant's appeal was a concern that merely having jobseeker status did not give him a right to reside for housing benefit purposes. But the judge held that as a matter of law, 'the decision on the right to reside for the purposes of a JSA claim is not determinative for housing benefit purposes' (paragraph 24). The local authority was not fixed with the decision already taken on that point by the DWP, and the claimant could argue the point afresh with the local authority. The claimant had in fact been granted discretionary leave under the Immigration Act (as a victim of human trafficking) from October 2014. Such leave meant that he could claim both JSA and housing benefit without the restrictions that apply to other European claimants; however, the leave was granted after the date of the decision under appeal and did not invalidate it (paragraphs 9-12).

Summary

The claimant received a four-week sanction on her JSA for failure to participate in the Work Programme by attending a Work Programme appointment. On appeal, the claimant stated that she had not received the letter requiring her to attend. The tribunal directed the Secretary of State to supply copies of the relevant documents. Although the evidence was supplied, albeit late, the tribunal appears not to have received it. It allowed the claimant's appeal on the basis that a sanction could only be imposed if the claimant had been appropriately notified of the requirement to participate. The tribunal 'drew inferences' from the Secretary of State's failure to provide the requested evidence, such that the claimant had not been adequately notified and so had not failed to participate.

Allowing the Secretary of State's further appeal and remitting the case to a fresh tribunal, Judge Rowland held that there had been an inadvertent breach in the rules of natural justice by the tribunal making the decision it did, when in fact the evidence had been supplied (paragraphs 10-11). Also, however, there was an error in that the tribunal's reasons did not properly explain why it drew an adverse inference from the Secretary of State's apparent failure to provide the evidence. The judge said, 'Where there has been a failure to comply with a direction to provide evidence, a tribunal may well be entitled to draw an adverse inference against the offending party; that is to say that it may infer from the failure that the facts are not as the offending party says they are. However, it is not entitled to do so merely as a punishment. It is appropriate to draw an adverse inference only if the tribunal it satisfied that it is probably that the reason for the failure to comply with the direction is that the evidence does not exist or would harm the offending party's case' (paragraph 12).

In the present case, there could 'plainly have been other realistic reasons' for the failure to comply', and so the tribunal's reasons needed to address what the 'inherent probabilities' were' (paragraph 17). That was not, however, to minimise the importance of the Secretary of State, as a party to the appeal, complying with directions. The Secretary of State is not entitled merely to ignore a time limit in a direction, nor is he entitled to make an unexplained application for extension of time on the assumption that it will be granted (paragraph 18).

Summary

The claimant owned a property not lived in as her home. She tented it out and acted as a landlord to the tenants. Her claim for HB was refused on the basis that the value of the property represented capital in excess of the limit of £16,000. Her appeal to the First-tier Tribunal was refused.

Judge Jacobs held that the tribunal had not erred in law - ie, that the claimant was lawfully treated as possessing capital in excess of the limit. The main issue raised before the judge was whether the property was a business asset, in which case its value was to be ignored (under paragraph 8 to Schedule 6 of the Housing Benefit Regulations 2006, SI No.213). Reviewing relevant caselaw from a number of jurisdictions, the judge drew a number of conclusions about the approach to whether a 'business' was being conducted in such circumstances, including: (1) the meaning of 'business' depends on its context in the legislation (paragraph 16); (2) the number of properties being let out and the number of units that are let are not decisive, but letting a single property as a unit is unlikely to be a business, whereas letting out a single property as units for multiple occupation or letting out more than one property is more likely to be a business; in any case, the amount of administration and activity involved may create a business (paragraph 18); carrying out the duties of a landlord is not sufficient; beyond that no single factor is decisive and it is the combined effect of all the facts and circumstances that count (paragraph 19).

On the facts of this case, the claimant's duties as a landlord (collection of rent, repairs, etc.) were not sufficient to constitute a business (paragraphs 27-28). The value of the property therefore counted as the claimant's capital. Although the value may be affected by the presence of tenants, in this case the evidence showed that it was not significant as the valuations showed the presence of shorthold tenants did not significantly affect the value, and the claimant would be able to secure vacant possession in a reasonable time (paragraphs 31-34).

Decision in brief

Claimants were single after splitting up as a couple – house rented as a joint tenancy but under a legal agreement each claimant had exclusive use of a bedroom and living room – local authority and First-tier Tribunal applied one- bedroom shared accommodation rate, on basis that as one claimant got carer’s allowance for caring for the other, there was no ‘exclusive’ use of two rooms, and house rented as a joint tenancy – held that ‘exclusive’ use is in contradistinction to ‘shared’ use, and was about whether there was an exclusive right, not the actual use of the room – and must be able to look beyond any tenancy to look at subsidiary agreements that have legal force (such as subletting) – on facts of the case, claimants had a legal agreement regarding exclusive use of rooms such that the one-bedroom self-contained rate applied

Summary

The claimant had autism and learning difficulties, and was living in a care home, funded in part by the NHS under section 117 of the Mental Health Act. After 28 days, payment of the care component ceased (under section 78(8) of the Social Security Contributions and Benefits Act 1992 and regulation 9 of the Social Security (Disability Living Allowance) Regulations 1991, SI No.2890). The claimant's appeal against that, made via his appointee, included an argument that the rules breached his human rights by unlawfully discriminating against him as a disabled person in a care home.

Rejecting the appeal, Judge Markus QC held that any discrimination (ie, under Article 14 of the European Convention on Human Rights, read with Article 1 of Protocol 1) was justified. The claimant argued that the poor quality of the care provided in the home meant that he should not be regarded as receiving care at all, and that evidence about poor-quality care in general meant that the claimant's position could be compared with that of disabled children in hospital, who were found to be subject to unlawful discrimination by the statutory suspension of their DLA in Mathieson v Secretary of State for Work and Pensions [2015] UKSC47; [2015] 1 WLR3250.

Judge Markus QC held that the statutory references to care homes showed that the rules were concerned with 'the nature or function of the establishment not the services which are actually provided to any particular individual' and that regulation 9 applied 'if the claimant is in an establishment which has the characteristics of a care home' (paragraph 16). The judge distinguished the present case from Mathieson. In that case, a 'structural' problem was identified, namely that the evidence showed that due to the continuing care provided by parents and others in hospital, NHS provision in hospital did not overlap with the care component of DLA. By contrast, that structural problem did not apply in the present case, where the evidence about poor-quality care was about only a small minority of cases, and in any case did not mean that care needs were not being met (paragraphs 40-41 ). It followed that, in the majority of cases, payment of the care component to care home residents would result in double provision. At most, the evidence showed at most that the claimant's case was a 'hard case' which did not invalidate a rule which, on the whole, was beneficial (paragraphs 42-44).

Summary

In 2012, the claimant reapplied for ESA following a previous failure of the work capability assessment (WCA). Under the rules that applied at that time, as the reapplication was within six months of the previous failure, she could only have been treated as having limited capability for work (and so entitled to ESA) pending a new WCA if she had a new condition or her condition had 'significantly worsened'. In the event, the decision maker in fact decided the new claim, finding that the claimant did not have limited capability for work. That was upheld by the First-tier Tribunal.

Judge Wright dismissed the claimant's further appeal, holding that the tribunal had not erred in law. He also commented extensively on the rule (then at regulation 30(2) of the Employment and Support Allowance (General) Regulations 2008, SI No.794), under which a claimant who has previously failed the WCA may on a repeat claim be treated as having limited capability for work. However, he emphasised that, given that (1) regulation 30(2) was not in fact raised as an issue in this appeal, and (2) the terms of regulation 30 had in fact been changed after the date of the decision under appeal (so as to effectively require a new condition or significant deterioration in all such cases, regardless of a six-month period), his views were provisional and not in any sense binding in any other case (paragraph 4).

Regarding what was meant by the reference to 'significant worsening' in regulation 30 (including in its amended form), the judge agreed with the Secretary of State that it required a judgment against the previous WCA, and was a test of whether the claimant 'would be likely' to satisfy the WCA when the actual decision on that was made. As such, he disagreed with the comment in Volume I of Sweet and Maxwell's Social Security Legislation that the test was whether the claimant 'would' satisfy the WCA. If the decision maker was of the view that the claimant simply 'would' not satisfy the WCA, it should simply make that decision - ie, make a new decision on the new claim reapplying the WCA (paragraphs 34-40). In support of his view, the judge pointed to the words of Commissioner Jacobs (as he then was) in CIB/1959/1997 and CIB/2198/1997, that what was required for 'significant worsening' was that it was 'fair to assume' that the claimant would satisfy the test (paragraph 37).

The judge considered it possible that there was a right of appeal against a decision on 'significant worsening'. Although previous caselaw authority had spoken of 'building block' decisions against which there was not a right of appeal, he considered that it was 'difficult to categorise' a regulation 30(2) (now regulation 30(4)) decision as a building block for any other decision; rather it seemed to 'stand on its own' (paragraph 48). It was not 'readily apparent' to the judge that a section 30(2) decision was not a decision deciding a claim under section 8 of the Social Security Act 1998, so giving rise to a right of appeal (paragraph 51).

Comment from CPAG

Given his very clear caveats, Judge Wright's comments on the approach to the 'significant worsening' referred to in the current version of regulation 30(4) must be regarded as strictly obiter - ie, not binding. His interpretation of the meaning of the words is in line with previous authority and does not break new ground. However, his speculation that there may be a right of appeal against a decision on this may well call for consideration in future cases.

Summary

The claimants (one for disability living allowance (DLA), one for jobseeker’s allowance (JSA)) had both sought ‘mandatory reconsiderations’ of decisions more than 13 months after they were made. The DWP refused to revise the decisions, on the ground that they were made outside the absolute time limit, and so refused to revise the decisions. The claimants then appealed to the First-tier Tribunal, but in both cases the tribunal refused jurisdiction on the basis that the application for mandatory reconsideration had been refused for being outside the absolute time limit, and there was no right of appeal following such a refusal.

Judge Pool QC rejected the further appeal of the DLA claimant, but allowed the further appeal of the JSA claimant and remitted the case to a fresh tribunal. The reason for the differing outcomes was that the DLA claimant’s application for mandatory reconsideration was simply that he disagreed with it, and had therefore had to rely on a revision on ‘any ground’, whereas the JSA claimant raised a specific point of official error (incorrect advice to claim ESA) in the decision, and was therefore able to rely on a revision for ‘official error’, to which no time limit applied. On the judge’s interpretation of the relevant rules, the bar on a right to appeal following a refusal to revise a decision made more than 3 months ago applies only to ‘any ground’ applications which are refused, but not to an ‘official error’ application which is refused.

The relevant rules were a combination of provisions about appeals in the Social Security Act 1998 and about ‘mandatory reconsideration’ (ie, revision) which for DLA and JSA are in regulation 3 of the Social Security (Decisions and Appeals) Regulations 1999, SI No.991. The judge noted that where the mandatory reconsideration request is made more than 13 months after the decision, ‘in many cases’ the tribunal will have no jurisdiction to consider an appeal. This follows from the fact that regarding revisions ‘on any ground’ (eg, where the disagreement is simply that the decision maker ‘got it wrong’), the effect of regulation 3(1) and (3) was to require that the application be made within 13 months of the decision. There was no jurisdiction to hear an appeal against a refusal to revise. But a tribunal will have jurisdiction to hear an appeal, even where the request for mandatory reconsideration is more than 13 months after the decision, ‘where the substance of the mandatory reconsideration request’ falls within regulation 3(5) – ie, is where the ground is ‘official error’ (as defined in regulation 1) (paragraph 3). The judge noted in that in R (CJ) and SG v SSWP [2018] AACR 5, it had been suggested that there was no tribunal jurisdiction where the mandatory reconsideration had been made after 13 months. Refining that, the judge held that was correct insofar as it applied to requests for revision on ‘any ground’; but, he said, ‘“any time” revisions falling within regulation 3(5) are in a different position’ (paragraph 11). The effect was that First-tier Tribunals do not have jurisdiction to hear appeals where the mandatory reconsideration is made after 13 months, but do have jurisdiction in such cases where the basis is official error. It was not necessary for the applicant to use such terms: ‘what is important is the substance of the request’ (paragraph 12).

Comment from CPAG

This important decision establishes that, if ‘official error’ is the basis for the mandatory reconsideration, appeals against a refusal to revise can still be made even if the mandatory reconsideration was requested after more than 13 months. 

Summary

The claimant claimed UC on 27 March 2020 (ie, the day after the first Covid-19 national lockdown began) and was awarded it from that date. The claimant was told that his identity was verified under the ‘Trust and Protect’ policy introduced during the pandemic, and that his identity would be verified again at some later date. He was given an appointment for that in May 2021. On 17 June 2021, it was decided that he had ‘failed to provide sufficient evidence to validate his claim’ (by failing to upload travel documents regarding his absence from the UK in December 2020) and so had been overpaid UC between 27 March 2020 and 26 April 2021, with the overpayment being recoverable from him. The First-tier Tribunal rejected the claimant’s appeal, holding that the claimant had failed to provide information to validate his claim when asked to do so. 

Judge Wright allowed the claimant’s further appeal and substituted a decision that he remained entitled to UC from 27 March 2020 (and so was not overpaid from then until 26 April 2021). No revision or supersession ground for altering the claimant’s award had been identified by the tribunal. Indeed, the tribunal erred, ‘by failing to engage sufficiently, in truth at all, with the underpinning statutory bases for the two decisions under appeal to it. In particular, the [First-tier Tribunal] failed to identify the correct legal basis for removing the appellant’s entitlement to universal credit from 27 March 2020’ (paragraph 16). The only provisions relied on by the tribunal related to provision of evidence and suspension and did not in themselves permit revision or supersession. That error also ran through the Secretary of State’s responses to the tribunal. The language adopted by the tribunal and the Secretary of State of the ‘closure’ of the ‘claim’ by the June 2021 decision was a ‘legal nonsense’, as (per section 8(2) of the Social Security Act 1998) once decided, a ‘claim’ ceased to exist (paragraphs 20–21). Further, per section 17(1) of the Act, the award of UC was a final decision and so the claimant’s award of UC could not be removed simply because he had failed to verify his identity (or not evidenced the date he was abroad in December 2020)’ (paragraph 22). Rather, the only legal way the award could be changed was by revision or supersession, something neither the tribunal nor the Secretary of State had identified or addressed. 

Before the Upper Tribunal, the Secretary of State argued that there had been a relevant revision ground, namely that of mistake of material fact, as at regulation 9(b) of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 (SI No.381). Judge Wright rejected that. ‘What fact,’ asked the judge, ‘was the awarding decision of 1 May 2020 mistaken about?’ (paragraph 30). The claimant’s identity had been verified under the Trust and Protect policy and UC had been paid to him. The judge was also critical of the failure by the Secretary of State to place the ‘Trust and Protect’ policy and what that meant for the claimant before either the First-tier Tribunal or the Upper Tribunal. In any case, the judge remained unable to identify any fact which the awarding decision was mistaken about. There was ‘no mistake about the appellant being who he says [he] is and was accepted as being... The need to verify something (ie, demonstrate or confirm that something is true) and the absence of such verification does not necessarily show the something is not true.’ (paragraph 37). 

Comment from CPAG

The dismaying fundamental errors and omissions in this case attracted explicit censure from Judge Wright. He opened his decision by citing the decision of Judge Wikeley in FO v SSWP (UC) [2022] UKUT 56 (AAC) where it was observed that First-tier Tribunals ‘may sometimes need to be wary about taking at face value’ DWP written submissions, and commented that this was another such case and another in the context of UC.

The claimants had brought appeals following applications for an ‘any time’ revision of decisions made more than 13 months ago – respectively, an original decision refusing entitlement to personal independence payment (PIP) and a supersession decision refusing to find that the claimant had limited capability for work-related activity for employment and support allowance (ESA). The ‘any time’ revision ground relied on by the claimants was that of ‘official error’. In both cases, the Secretary of State refused to revise the decisions. The claimants were told that these refusals were ‘mandatory reconsiderations’ and they could then appeal (with the time for appealing against the decisions running from those mandatory reconsiderations). In the PIP case (TR), the tribunal considered that it had jurisdiction to hear the appeal – ie, that the claimant had the right of appeal. But it had dismissed it on the basis that it did not consider the official error, as identified in a LEAP exercise, affected the claimant’s entitlement. It did not consider the appeal on its full merits – ie, by simply reconsidering entitlement afresh. In the ESA case (GD), the tribunal considered that it did not have jurisdiction as there was no right of appeal against a refusal to revise on official error grounds; but that even if there were, it would have agreed with the Secretary of State that there was no official error in the decision. Again, there was no consideration of the appeal on its full merits.

A three-judge panel of the Upper Tribunal (Mrs Justice Heather Williams DBE, Judge West and Judge Stout) allowed the claimants’ further appeals and remitted the cases for reconsideration on their full merits as valid appeals. The tribunal in TR had correctly held that it had jurisdiction to hear the appeal. The Secretary of State’s consideration of the revision for official error constituted a mandatory reconsideration as required under regulation 7(2) of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013, SI No.381, and the appeal had been brought within a month of that. But the tribunal had erred in restricting itself to considering whether the official error meant that the refusal of entitlement was wrong, rather than considering the claimant’s entitlement afresh on its full merits. The tribunal in GD had erred in holding that it did not have jurisdiction and in not considering that a full merits reconsideration should apply.

The Upper Tribunal decided some issues of principle regarding issues of rights of appeal in the context of mandatory reconsideration following ‘any time’ revision applications – ie, made more than 13 months after an original or supersession decision, including for ‘official error’ under regulation 9 of the Decisions and Appeals Regulations. These principles (agreed by all the parties) included that whether the First-tier Tribunal has jurisdiction ‘depends on the Secretary of State having considered an application that is in substance a request for revision that raises grounds which, if made out, would be capable of being in fact or law an official error (or other relevant “any time” ground for revision)’ (paragraph 121a). The Secretary of State provided examples, endorsed by the Upper Tribunal, of communications that would not meet that test – for example, ‘the decision was wrong’ and ‘your decision is inconsistent with the evidence’ (paragraph 116). For the tribunal, what ‘opens the door’ to an appeal is whether the Secretary of State has considered the application for an ‘any time’ revision (even if the original decision is not actually changed). If yes, there has been a mandatory reconsideration and there was a right to a full merits appeal in the usual way. Only if that had not happened would the tribunal, on appeal, first need to consider whether the application was ‘in substance’ on such a ground – eg, official error (paragraph 120). If so, again the refusal to revise gave rise to a right of appeal. But even then, it is not required that the tribunal first find that an official error has actually occurred. Further, if the tribunal does have jurisdiction, then it must deal with the appeal on its ‘full merits’ – ie, ‘must deal with the case as if it is standing in the shoes of the Secretary of State’ on the date that the original decision or, as the case may be, the supersession decision was made (paragraph 121e). In so holding, the Upper Tribunal disapproved previous authority (in particular, PH and SM v SSWP (DLA) (JSA) [2018] UKUT 404 (AAC)), which had held that the tribunal could only consider the appeal if it first decided that an official error had actually occurred.

Comment from CPAG

In obiter comments (paragraphs 80–87), the Upper Tribunal also said that where the Secretary of State has revised an original decision (eg, on official grounds) in a way that is adverse to the claimant who then appeals, the First-tier Tribunal is similarly not required first to establish that one of the any time revision grounds applied. This is contrary to R(IB) 2/04 and is very arguably wrong. See the article: Any time revision: an appealing prospect?

Summary

In this decision of the Supreme Court, it is held that the rule denying entitlement to widowed parent's allowance (WPA) to a surviving partner who was unmarried to her partner at the time of his death is incompatible with human rights law. It is now up to the government to decide whether and how to change the law.

Summary

The claimant’s appeal was on the basis that she should be placed in the support group as she was unable to ‘repeatedly mobilise more than 50 metres over level ground within a reasonable timescale’. The First-tier Tribunal held that the claimant scored an additional 9 points for inability to repeatedly mobilise more than 100 metres, but refused to award 15 points for mobilising and so placed in her in the work-related activity group instead. The tribunal adopted the claimant’s estimate that she could walk a ‘half normal speed’, and walked for three minutes before needing to stop. It then applied its own expertise to hold that as ‘normal’ walking pace was 100 metres per minute, at half this pace the claimant would cover 150 metres in three minutes before stopping. Allowing for the difficulties involved in approximating distance (and so reducing the distance by a third), the tribunal still reckoned the claimant could walk 100 metres before needing to stop.

Judge Mesher allowed the claimant’s further appeal and remitted the case to a new tribunal. Although the case was ‘very close to the margin’, he considered the basis of the tribunal’s calculations ‘problematic at several points’ (paragraphs 2 and 9). Firstly, the tribunal accepted the claimant’s estimate that she could walk at half normal speed. But it was unlikely that the claimant had explored what normal walking speed meant and the tribunal did not tell her its own understanding of what that meant. Secondly, the tribunal’s adoption of normal walking speed of 100 metres in a minute ‘seemed dubious’. That speed amounted to around four miles an hour, whereas in the judge’s experience around three miles an hour (5,000 metres an hour) was generally accepted as the norm (paragraph 9). Applying the tribunal’s reduction in distance of around a third to that, the distance the claimant could walk before needing to stop would be around 85 metres in three minutes (paragraph 9).

Even then, the claimant might still be reckoned, as the tribunal found, to be able to walk ’50 metres in one go’. But her argument was that she could not ‘repeatedly do so within a reasonable timescale’ because of discomfort or exhaustion. Even the tribunal’s own terms did not clearly imply that might not be so. Using the judge’s own lower estimates of the distance the claimant could walk, the argument that the claimant could not achieve 50 metres repeatedly and within a reasonable timescale became stronger, and had not been investigated by the tribunal (paragraph 10). Finally, it was not clear that the tribunal had observed the finding in GL v SSWP (ESA) [2015] UKUT 503 (AAC) that a claimant’s ability to mobilise with significant discomfort or exhaustion should be disregarded (paragraph 12).

Thanks to Andy King of Bristol Law Centre, the claimant’s representative, for sending us this decision.

Decision in brief

Power to set aside (under rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008, No.2698) is limited to matters of procedure, does not apply to the substance of the decision - set-aside not concerned with a challenge to the decision itself - no right of appeal to Court of Appeal against a decision refusing permission to appeal to the Upper Tribunal and only route is via judicial review