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Summary

The claimant had a number of conditions, including depression and panic attacks. She was held to have failed the work capability assessment, and appealed. The evidence before the First-tier Tribunal included a report from the claimant's NHS cognitive behavioural psychotherapist, which included the statements that the claimant had been advised to as far as possible reduce her contact with stressful situations as this has aggravated her depression, and that before returning to work, 'coping skills and support networks' would first have to be in place. The tribunal held that she did have limited capability for work, but held that she did not have limited capability for work-related activity. Its reasons were that the claimant's evidence was considered vague and contradicted by other evidence, and that she could attend interviews because she had been able to meet the tribunal, her NHS psychotherapist and the approved healthcare professional who had examined her.

Judge Mark allowed the claimant's further appeal, and substituted a decision that she was to be treated as having limited capability for work-related activity, as she satisfied the 'substantial risk' rule at regulation 35(2) of the Employment and Support Allowance Regulations 2008. The tribunal had erred in its reasoning in that on the facts there was nothing vague about the claimant's evidence and it was not clearly contradicted. Regarding the finding that the claimant's ability to meet her psychotherapist indicated she was capable (without substantial risk) of work-related activity, the judge said: 'I am wholly unable to understand the rationality of this conclusion. There is a world of difference between attending regular therapy sessions with a psychotherapist and having to attend interviews with DWP employees at the jobcentre' (paragraph 18). Further, there was no evidence from the DWP about the ability of its jobcentre staff to deal with somebody with the claimant's mental health problems and no evidence that steps would be taken to provide the sort of coping skills and support networks referred to by her psychotherapist. Therefore, the tribunal had no facts on which to base its opinion that the claimant was capable (without substantial risk) of work-related activity (paragraph 21).

The Secretary of State should, held the judge, have provided evidence about the sort of activity that the claimant could have undertaken without substantial risk. The scope of the evidence will depend on the facts of the case, but where a claimant has mental health problems and risk was clearly at issue, 'the Secretary of State has a duty under regulation 2(4) of the Tribunal Procedure (First-tier Tribunal)(SEC) Regulations 2008 to provide evidence' about that (paragraph 24-the rule concerns the duty of parties to the appeal to assist with dealing with a case fairly and justly and co-operating with the tribunal). Previous authority on the duty of the Secretary of State to provide sufficient evidence in such cases (AH v SSWP [2013] UKUT 118 (AAC); ML v SSWP [2013] UKUT 174; MT v SSWP [2013] UKUT 545) was cited and approved (paragraphs 27-29). Finally, on the facts of this case there was no evidence supplied about the relevant training or qualifications of the staff at the jobcentre or the arrangements that would be put in place to provide the required 'coping skills and support network'. The judge concluded that it was 'more likely than not' that 'the likely approach of the DWP to the claimant, if she were found not to have limited capability for work-related activity, would have posed a substantial risk to her mental health at a time which was plainly a crisis time for her'. There was, therefore, no point in remitting the case to a new tribunal, and the judge substituted a decision that the claimant satisfied regulation 35(2) and so was to be treated as having limited capability for work-related activity (paragraphs 32-36).

Comment from CPAG

In another recent decision, RV v SSWP (ESA) [2014] UKUT 56 (AAC) (4 February 2014), the same judge found (at paragraph 11) that in that case, which concerned a claimant with deep vein thrombosis, the tribunal was able, in the absence of evidence from the Secretary of State, to 'rely on its own knowledge, if adequate', provided that it told the claimant what that knowledge was and gave her an opportunity to comment on it. See also the article in Bulletin 293, p5.

Summary

The claimant was a Lithuanian national. He came to the UK in May 2005. He worked for varying amounts of time between then and 2010, sometimes in short-term work and self-employment, but did not work in registered employment for a year or more - ie, he remained subject to the restrictions that applied to AS nationals until 30 April 2011. In February 2011, he claimed JSA and was refused on right to reside grounds. His appeal to the First-tier Tribunal included arguments that the restriction on AB nationals retaining worker status unless they had completed a year's registered work (the 'derogation' from the retained worker status provision) was unlawful, and that he had completed five years with a right to reside as a self-sufficient person with comprehensive sickness insurance, and so acquired a permanent right to reside. The tribunal rejected his appeal.

Judge Ward allowed the claimant's further appeal, but substituted a decision that the claimant did not have a right to reside. The tribunal had erred in holding that it had no jurisdiction to consider the validity of derogation point, and in not property explaining its reasoning on the self-sufficiency point. However, the judge did not decide the derogation issue, as on the facts he considered that the claimant could not in any case have retained the status of worker, primarily because there was too long a gap between ceasing work and the JSA claim under consideration.

On the self-sufficiency point, the test under Article 7 of the Directive was whether the claimant had 'sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness cover in the host Member State'. For the judge, that meant that the claimant must have 'resources' and, where he intended to rely on the acquisition of permanent residence after a period of five years of self-sufficiency, those resources would need to be adequate for the five years. The judge said: 'In my view the question, whenever asked, remains: was the person at the beginning of year 1 - and in principle at any other times in the period able to show sufficient resources to meet the test? I do not accept that a person who could not meet the test on that basis could simply lie low for five years and through a combination of luck and an unusually frugal lifestyle avoid being any kind of burden to the social assistance system and then argue that they have retrospectively shown that they had throughout the resources to be self-sufficient' (paragraph 84). As to 'resources', that could mean, for example, an occupational pension, maintenance payments or capital. In the claimant's case, apart from the limited periods when he was in employment under a worker's registration certificate, he was reliant on uncertified short-term employment and 'unproven' self-employment. For the judge, that was 'inconsistent with the degree of reliability necessary to represent resources to see him through the five-year period needed to achieve the right of permanent residence' (paragraph 89). Further, work gave rise to a right to reside as a worker, and a worker could not 'assert that his earnings as a worker entitle him to be treated as a self-sufficient person' (paragraph 92). For comprehensive sickness insurance, the claimant relied on his access to free NHS treatment. But the judge considered that insufficient (except in cases where the cost of NHS treatment was met so that the UK did not bear the cost). He considered himself bound (and in any case agreed with) the Court of Appeal in FK (Kenya) v SSHD [2010] EWCA Civ 1302, which held that NHS treatment was not sufficient, as itself constituting a burden on the social assistance system (paragraph 101-5).

Note: regarding comprehensive sickness insurance, this decision is followed in SSWP v LL (SPC) [2014] UKUT 136 (AAC). But in SA (Pakistan) v SSHD (an immigration case), leave to appeal to the Court of Appeal has been granted so that the Court may consider whether to make a reference to the ECJ on this point.

Summary

The claimant was registered blind. She suffered from retinitis pigmentosa, and although she had some visual ability indoors with ambient lighting, her vision out of doors was extremely poor. She was awarded the low rate of the mobility component, but was refused the high rate on the grounds that she did not satisfy the blind or severely visually impaired criteria. That was because she did not satisfy the relevant criteria as set out on the 'Snellen scale', a test applied indoors with specific ambient lighting. The First-tier Tribunal allowed the claimant's appeal on the basis that she would pass the criteria when outdoors. The Secretary of State appealed.

Judge Sir Crispin Agnew of Lochnaw Bt QC allowed the Secretary of State's appeal and substituted a decision that the claimant was not entitled to the high rate of the mobility component. The relevant rule was at regulation 12(1A) of the Social Security (Disability Living Allowance) Regulations 1991. The tribunal had erred in applying an out of doors test. It had been held in SSWP v MS (DLA) [2013] UKUT 267 (AAC) (file number CDLA/1899/2012) that the Snellen test was an objective test and that the claimant therefore either satisfied that test and qualified for the high rate, or did not. The judge agreed with that (paragraph 19), and as the claimant did not satisfy the Snellen test, she did not qualify.

However, the judge considered that regulation 12(1A) breached Article 14 (prohibition of discrimination) of the European Convention on Human Rights ('the Convention'). He considered the regulation clearly discriminatory in that it discriminated 'between persons who have a visual acuity that is the same in the consulting room taking the Snellen test as it is outdoors and persons that have a particular Snellen test reading in the consulting room, but whose visual acuity outside is significantly worse' (paragraphs 22-23). The judge accepted the test for whether such discrimination was unlawful (ie, not justified) was whether it was 'manifestly without reasonable foundation'. But there was nothing to suggest that the Secretary of State had really addressed the situation where a person might have better visual acuity indoors than s/he did outdoors; he held therefore that regulation 12(1A) 'has no reasonable or objective justification and is accordingly ultra vires' (paragraph 37). For the same reasons, the Secretary of State had failed in his equality duty that then existed under the Equality Act 2006 (paragraphs 40-42). However, the outcome of the appeal was still that the claimant was not entitled to the high rate. That was because the judge considered he could not construe regulation 12(1A) in a way that was compatible with the Convention (paragraph 39), and that he did not have jurisdiction to reduce or set the regulation aside; besides which there were claimants who did satisfy the regulation and needed it to get the high rate. Therefore, he had 'not made a formal decision that the regulation is a nullity', and it was 'for the Secretary of State to consider what action should be taken to amend the regulations so as not to discriminate against persons such as the claimant in this case' (paragraph 44).

Comment from CPAG

The outcome of this decision is that regulation 12(1A) stands, despite the judge's clear view that it contravenes the Convention. It would seem that the next step is up to the Secretary of State, and it is very much hoped that the decision will be to alter the regulation so as to make it compliant. Thanks to David Hornell of North Ayrshire Council, the claimant's representative, for sending us this decision.

Summary

The claimant lived in rented accommodation with another person (who happened to be his ex-partner) as joint tenants. The property consisted of one living room, two bedrooms, two bathrooms and a kitchen. The local authority having decided (eventually) that the claimant and his partner maintained separate households, nevertheless decided that as they shared a kitchen and the claimant did not have 'exclusive use' of at least two rooms, the maximum rent for HB had to be assessed under the one-bedroom shared accommodation criteria. The claimant appealed, arguing that he did have exclusive use of rooms and that therefore the one-bedroom self-contained criteria should apply instead (ie, with the result of an increased amount of benefit). The First-tier Tribunal dismissed the appeal.

Judge Wright dismissed the claimant's further appeal. The tribunal had not erred in law in deciding that the claimant did not have 'exclusive use' of rooms. In so holding, the judge was required to decide what 'exclusive use' meant in this context- ie, in the context of regulation 13D(2) of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006. But, as the judge made clear, the equivalent regulation (also 13D) in the Housing Benefit Regulations 2006, was in the same form, so the decision will also apply in that context. In particular, the judge was required to decide if 'exclusive use' meant exclusive use in the practical sense of rooms that the claimant had control over and sole use of (as contended for by the claimant) or if it meant a legal right to exclude others from the rooms (as applied by the tribunal).

The judge held that 'exclusive use' meant a legal right to exclude others from the rooms, and not just the practical situation of being able to exclude all others (paragraph 4). In so holding, he applied and approved the identical finding of Judge Wikeley in M v Chesterfield Borough Council v SSWP (HB) [2011] UKUT 156 (AAC) (Bulletin 224, p17). Although the finding in that case was obiter (ie, not necessary to the decision and so not formally binding), Judge Wright considered it correct (paragraph 25). In this case, the claimant was a joint tenant and did not have the legal right to exclude all others from the rooms, and so (in the absence of any of the exceptions applying) the one-bedroom shared accommodation criteria applied.

Decision in brief

Limited capability for work - manual dexterity (Activity 5) - inability to use 'a suitable keyboard or a mouse' - points not scored if claimant either can use a keyboard or can use a mouse - contrary finding in CL v SSWP (ESA) [2013] UKUT 4345 (AAC), which held that a claimant needs to use both a keyboard and a mouse, disapproved - to the extent that it implies the same as CL, OW v SSWA (ESA) [2010] UKUT 245 (AAC) also disapproved - functional approach is the correct broad starting point (GS v SSWP (ESA) [2010] UKUT 244 (AAC) approved) - overall structure of Activity 5 suggests intention was to require inability to use both keyboard and mouse - HD v SSWP (ESA) takes a different approach to use of 'or' in support group mobilising descriptor, but that makes sense in that particular context

Decision in brief

'Cannot either... or' wording means cannot carry out 'one or other of (a) or (b)' - so unless a claimant cannot both mobilise 50 metres and do so repeatedly within a reasonable time they should be placed in the support group (paragraphs 4-6)

Note from CPAG

See also DG v SSWP (ESA), and the article in Bulletin 239, p5.

Decision in brief

Although apparently provided for under section 9(2)(a) of the Tribunals, Courts. and Enforcement Act 2007, it is prevented by rule 40(2)(a) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (which allows review only on an application for permission to appeal).

Decision in brief

GP issued a Med 3 'fit note' very soon after decision under appeal - tribunal should have taken the Med 3 into account in considering on appeal whether there was any work the claimant could do without substantial risk - tribunal needed to consider 'what the very issue of the certificate implied about the impact of the conditions, taken as a whole, on the claimant's ability to work' (paragraph 8)

Decision in brief

Ends after 13 weeks or when the limited capability for work determination is made, whichever is the later, does not end automatically after 13 weeks where no limited capability for work determination has been made - SSWP v NC (ESA) not in error

Summary

The claimant was entitled to income support (IS), HB and council tax benefit (CTB). After starting full-time work, she notified the change promptly to the Jobcentre that administered her IS; she also said that she had informed the local authority at the same time (both by telephone and completing a form). Complications then arose because of the failure of both the DWP and the local authority to act, and an overpayment arose. The claimant appealed , arguing that the HB and CTB overpayment were not recoverable from her, as they had been caused by official error and she could not reasonably be expected to have realised that an overpayment was occurring. The First-tierTribunal allowed the appeal, the judge accepting that she was a credible witness and accepting her evidence that she had notified the local authority, even though the local authority said that it had no record of that.

Although finding that, on the facts of the case, the tribunal's decision was in error in failing to identify that the appeal had at one point lapsed, Judge Poynter re-made the decision and held that the overpayments were not recoverable from the claimant. They had been caused by official error and the claimant could not reasonably have been expected to realise that she was being overpaid. The tribunal judge had not erred in law in deciding that, on the facts of this case, it was probable that the claimant had notified the local authority.

The judge rejected the local authority's argument that to have accepted the claimant's account was 'perverse' as no tribunal could reasonably have concluded as it did, and it was based on an unjustified assumption that the claimant acted as she said she had. Although it was true there was a tension between the claimant's account and that of the local authority, resolution of such conflicts was 'quintessentially a matter of fact' for the First-tier Tribunal (paragraph 52). Although it was indeed an error of law to make a perverse decision, the decision in this case was not perverse. The local authority's argument here 'amounted to an assertion that no tribunal could reasonably have come to the view that Islington's procedures ever worked less than perfectly. That is not the case. Islington's procedures.sometimes fail to operate correctly ... the same is true of every other local authority; and of the DWP and HMRC; and indeed of the FTT, the Upper Tribunal and of every other human institution' (paragraph 53). It was up to the judge to decide what had happened. It was true, as argued by the local authority, that it was not uncommon for claimants to omit to notify the local authority of changes that they had told the DWP about. But it was also the case 'that many claimants do notify both the DWP and the local authority of changes in circumstances as soon as reasonably possible after those changes occur. The question in this case was whether it was more probable than not that the claimant had done so' (paragraph 56).

Summary

The claimant was transferred from incapacity benefit to ESA (ie, was found to have limited capability for work), but was placed in the work-related activity group. The decision maker considered that although the claimant scored insufficient points, she was to be treated as having limited capability for work on the basis of the exceptional circumstance rule. The claimant, who was represented by a solicitor, appealed on the basis that she should be in the support group, arguing that either a relevant descriptor applied or that the exceptional circumstance rule for limited capability for work-related activity applied. The First-tier Tribunal dismissed the appeal, and also revisited the limited capability for work part of the decision. The tribunal decided that although the claimant did indeed have limited capability for work, it was on the basis of scoring sufficient points rather than the exceptional circumstance rule.

Judge Jacobs dismissed the claimant’s further appeal. In so doing he held that the tribunal was entitled to reconsider the claimant’s limited capability for work (ie, the points scored under Schedule 2 of the Employment and Support Allowance Regulations 2008, SI 2008 No.794), even though she had appealed about the support group (ie, limited capability for work-related activity under Schedule 3 of the Regulations). ESA was a single benefit with all aspects of entitlement dealt with in a single decision, and the limited capability for work-related activity part of the decision could not be severed from other parts of the decision (paragraphs 11–15). Further, in this case, the tribunal was obliged to deal with the limited capability for work part of the decision. Under section 12(8)(a) of the Social Security Act 1998, a tribunal ‘need not consider any issue that is not raised by the appeal…’. That leaves, in essence, discretion to consider such issues. However, in this case the fact that the claimant contended that descriptors in the limited capability for work-related activity assessment (at Schedule 3) applied to her obliged the tribunal also to consider if in fact the limited capability for work assessment was satisfied via the points score at Schedule 2 – as if a Schedule 3 descriptor applied then it followed that the points score in Schedule 2 must also have been satisfied. It would have been different if the claimant had argued only that she had limited capability for work-related activity via the exceptional circumstances rule – in that case the tribunal would not have been obliged to consider Schedule 2 (paragraphs 17– 26).

The judge also held that in this case the tribunal was not obliged to warn the claimant that it was minded to reconsider the limited capability for work issue. In some cases that was appropriate and perhaps necessary; in this case, however, the claimant was represented by competent solicitors and the tribunal was entitled to assume that the solicitors understood the legislation and had advised the claimant accordingly. That was different from a situation where there was an unrepresented claimant or one with an inexperienced representative unfamiliar with the legislation (paragraph 27).

Summary

The claimant was in receipt of tax credits as a single person. HMRC discovered that she was still living in the same house as her husband and issued revised decision notices declaring her entitlement to be nil – ie, because she should have been claiming as a couple. She appealed and explained that in no way did she maintain a relationship with her husband, was in a new relationship but did not live with her new partner, and had been unable to leave the matrimonial home due to financial constraints. HMRC responded that they should have made a joint claim as they had children, a joint mortgage and bank account, the husband paid the mortgage and had made loan applications from the shared address. The First-tier Tribunal dismissed the claimant’s appeal, holding that ‘under Income Support regulations’ a couple (that is, a married couple) were stated to be members of the same household, and on the evidence there was a shared household, and the couple were not separated.

Judge Wikeley allowed the claimant’s further appeal, and substituted a decision that on the facts the claimant was entitled to tax credits as a single person. The tribunal had erred in applying the wrong test – ie, in adopting the social security (income support) test for married couples. That did refer to being members of the same household; however, the test for tax credits did not (paragraph 40). In fact, the relevant test for whether people married to each other are a couple for tax credit purposes is at section 3(5A)(a) of the Tax Credits Act 2002, and says that such people are a couple if they are neither ‘separated under a court order’ nor ‘separated in circumstances in which the separation is likely to be permanent’. The judge accepted that whether there was a single household could be a highly significant consideration in deciding whether a couple not separated under a court order were likely to be permanently separated; however the judge said that if the emphasis put on that by Judge Lane in HMRC v TD (TC) [2012] UKUT 230 (AAC) was intended to suggest that a shared household necessarily and inevitably meant that the couple were not separated, then he must respectfully disagree (paragraphs 28–30).

Rather, the test of separation ‘must focus on the relationship between husband and wife, and a married couple may be separated whilst living in the same household, whether or not they have a court order to that effect’ (paragraph 36). On the facts of this case, the judge accepted that although sharing a household the claimant was likely to be separated permanently from her husband, and therefore she was entitled to tax credits as a single person.

See the article in Bulletin 240, pX.