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Summary

The claimant suffered from a genetic disorder (confirmed by medical evidence) that causes strong body odour, and associated mental health problems including anxiety, depression and paranoia. In her appeal against her disability living allowance (DLA) decision, the claimant had told the tribunal by letter that she found it stressful to be around other people, because of her body odour and the often hostile reaction this provoked in others. She said she could not attend a hearing because of her condition and asked whether the tribunal could telephone her on the day of the hearing if it had any questions. The tribunal decided to proceed in the claimant’s absence, and did not telephone her, as it considered it had sufficient information to make an informed decision. It awarded only the lower rate of the mobility component.

Allowing the claimant’s further appeal, Judge Knowles QC observed that it was no understatement to describe the effect of the condition on the claimant as ‘devastating’, and that the claimant’s account of the impact of the condition on her life made for ‘poignant reading’ (paragraph 7). As submitted by the Secretary of State, the tribunal erred in failing to consider the guidelines set out in the Senior President of Tribunals Practice Direction of 30 October 2008 on Child, Vulnerable Adult and Sensitive Witnesses (the ‘Practice Direction’). There, a sensitive witness was defined as, ‘an adult witness where the quality of the evidence given by the witness is likely to be diminished by reason of fear or distress on the part of the witness in connection with giving evidence in the case.’ Where such a witness was required to give evidence to enable a fair hearing, the tribunal should consider use of means such as a telephone or video link. The judge agreed that dealing with the case fairly and justly required attention to that, as there was no doubt that the claimant was a sensitive witness (paragraphs 15–16).

The tribunal had made explicit reference to rule 31 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, SI No.2685, – ie, that which permits hearings in a party’s absence. But, erroneously, it made no reference to the overriding objective in rule 2 to deal with a case ‘fairly and justly’, and in particular to rule 2(2)(c) on ‘ensuring, so far as practicable, that the parties are able to participate fully in the proceedings’. Proper attention to that would have suggested that the tribunal considered hearing from the claimant on the telephone, as she had requested, and, indeed, consideration of the Practice Direction. The tribunal had also erred in simply failing to ask itself whether it might obtain further useful evidence from the claimant by telephoning her (paragraphs 22–24). Directing that the appeal should be reheard by a new tribunal, the judge directed that the claimant should be given the opportunity to attend the new hearing by telephone, in accordance with the Practice Direction (paragraph 33).

Comment from CPAG

This is another in a recent line of decisions reminding tribunals of the requirement to allow parties to participate in hearings, as part of the overriding objective of dealing with cases fairly and justly – see also DT v SSWP (DLA) [2015] UKUT 390 (AAC) and CH v SSWP (ESA) [2015] UKUT 187 (AAC).

Summary

The claimant had some right-sided weakness and used a walking stick in her right hand. She had difficulty standing and needed a stool when cooking. However, the First-tier Tribunal, in rejecting the claimant’s appeal, also removed the two points she had been awarded (and was not putting in issue herself) under descriptor (b) of Activity 1 of the assessment for daily living activities, namely for: ‘needs to use as an aid or appliance to be able to either prepare or cook a simple meal’.

Judge Wright allowed the claimant’s appeal. The tribunal erred in failing to explain why it considered that the stool was not needed in order to prepare or cook a simple meal and, in failing to address, as required, whether without any aid the claimant could cook a meal safely. Also, it had focused on the fact that the occupational therapist had not recommended any necessary specialist aids, when the definition of ‘aid’ for PIP is very broad and not restricted to specialist devices (paragraphs 4–6). The judge also commented that a walking stick could probably just as much be an ‘aid’ needed for this descriptor as a stool or perching stool (paragraph 3).

The judge accepted that where a claimant had not been awarded either rate of the daily living component (or the mobility component), then on appeal a tribunal may potentially need to consider all activities that may be in issue (paragraph 7). However, that did not mean, as apparently considered in this case, that the tribunal must consider all descriptors as a matter of course, including those where points had already been awarded and were not the subject of any challenge in the appeal. Whether such descriptors come into issue ‘will depend on the facts of each case’ (paragraph 9). Further, the judge accepted that a tribunal does have the power to remove points already awarded, but that, depending on the facts of the case, could amount to a breach of natural justice if the claimant is not at some stage given an appropriate warning that the tribunal is indeed considering doing that (paragraphs 10–11).

Summary

The claimant had a defective ankle and stated that he could not get up the stairs, used a bucket to toilet downstairs but sometimes had an ‘accident’. He did not actually have a bowel or bladder continence problem. He appealed against the decision that he scored only nine points in the work capability assessment (WCA) (for inability to mount or descend two steps unaided). The First-tier Tribunal refused his appeal, holding that he was not entitled to further points under the mobility descriptors. It did not ask him any questions about toileting. However, in its reasons, the tribunal also said that although it was well established that incontinence caused by inability to reach a toilet because of other problems could count, the claimant was not entitled to points under the continence descriptors as he could use a bucket, and use of that was relevant as an ‘aid or adaptation’.

Judge Mitchell allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred in its findings about the continence descriptors. It was an error of law to conclude that a bucket was an aid or appliance. The wider legislative context required a continence aid or appliance to be one that can be used by the claimant ‘in a workplace without the associated indignity against which the WCA is designed to protect.’ That excluded a bucket (paragraph 1). The judge also noted that a bucket could not be an aid or appliance in this context as it cannot have any effect on whether or not control of bladder or bowel was lost, and that a bucket was not a toilet (paragraphs 37–39).

But the tribunal had also erred in considering that the continence descriptors might apply even where the claimant did not actually have a problem with the continence of his bladder or bowel. A person cannot score points in these descriptors for mobility problems alone. Although previous caselaw (EM v SSWP [2014] UKUT 34 (AAC) and FR v SSWP [2015] UKUT 151 (AAC)) had rightly held that points could be scored where the claimant was unable to reach the toilet because of ‘other physical problems’, that presupposed that the claimant also had a disease or disablement affecting the functioning of the bladder or bowel (paragraphs 2 and 33–36).

Summary

The claimant had appealed against a decision that he failed the work capability assessment. His case included that he should score points under the mobilising descriptor, although it was part of his argument that he used a wheelchair most of the time. In the hearing before the First-tier Tribunal, the tribunal asked the claimant to roll up his trouser leg so that the medical member of the tribunal could form a view as to whether muscle wasting had occurred as a result of wheelchair use. The tribunal concluded both that in fact the claimant did not reasonably require to use a wheelchair, but that he was able to use one to mobilise and did not score any points under the mobilising descriptor.

Judge Hemingway held that although the tribunal had erred in impermissibly conducting a medical examination, because of other factors in the appeal, including the fact that it considered he could mobilise using a wheelchair, that did not amount to a material error and so the claimant’s further appeal was dismissed. The tribunal had not erred in simultaneously holding that the claimant did not reasonably require to use a wheelchair, but that he could nevertheless mobilise using one. There was no evidence that there was any practical difficulty in the claimant obtaining or using the wheelchair or that using one was injurious to him; however, this was an unusual set of circumstances and it will be a more usual situation for a claimant to be denying that s/he can use a wheelchair (paragraphs 30–31).

The tribunal had erred in asking the claimant to roll up his trouser leg so that it could observe his lower leg. Under section 20(3)(a) of the Social Security Act 1998, a tribunal may not carry out a ‘physical examination’ (except in cases set out in the Tribunal Procedure Rules). Applying R1/01(IB)(T) (a Northern Ireland decision), the judge held that the tribunal breached that, because it was not merely relying on an observation it would have made anyway, it focused specifically upon a particular part of the claimant’s body, involved the tribunal asking the claimant to expose some part of the body covered by clothing and was directed towards a question of a medical nature regarding a physical consideration (paragraph 19).

Summary

The claimant was a single person and a foster carer for the local authority. Until July 2013, she qualified for IS as such a person, under paragraph 2 of Schedule IB of the Income Support Regulations 1987, SI No.1967, – ie, as ‘a single clamant or a lone parent with whom a child is placed…by a local authority or voluntary organisation within the meaning of the Children Act 1989.’ However, in September 2013 it came to light that the child the claimant had been fostering left her home in July 2013, and the claimant had had no placement since. Instead, she remained on call as a foster carer, and provided paid respite and day care to support other foster carers. The DWP terminated her entitlement (‘the entitlement decision’), and made a decision that there was a recoverable overpayment caused by the claimant’s failure to disclose (‘the overpayment decision’). The First-tier Tribunal dismissed the claimant’s appeal against both the entitlement decision and the overpayment decision.

Judge Perez dismissed the claimant’s further appeal. The tribunal had not erred in law. The claimant had ceased to be entitled to IS as a single foster carer when her foster child left her home and, applying the wording of the law, she was not entitled while supplying respite and day care support, even though both she and the local authority still regarded her as a foster carer. The overpayment was recoverable as the claimant had been sent sufficient notice by the DWP to impose on her a duty to report that her child had left her home, and she was in breach of that duty.

Construing the wording of paragraph 2 of Schedule IB, the judge held that the tribunal was correct to find that the claimant did not have a child ‘placed’ with her after July. The test was not whether the claimant was a foster carer, but rather whether she had a child placed with her within the meaning of the Children Act 1989 (paragraph 47). That meant that, ‘the claimant must actually have a child living with her, or accommodated by her, in discharge of the local authority’s functions under that Act’ (paragraph 49). On the facts of the present case, it was accepted that the claimant no longer had a ‘placement’ with her in the period in issue.

Summary

The claimant needed held from his wife setting up a TENS machine. That was for a maximum of 10 minutes and then for about two minutes to remove it at the end of each session in which the machine was used. The First-tier Tribunal declined to award points under Activity 3 (managing therapy) of the assessment for the daily living component, on the grounds that ‘the relevant therapy is what the TENS machine does while it is fitted to the appellant. Assistance to set it up is not assistance with the management of the therapy.’

Judge Sir Crispin Agnew of Lochnaw Bt QC held that the tribunal had erred in law. In particular, it had erred with regard to descriptor 3 (c), which applies where the claimant ‘needs supervision or prompting or assistance to be able to manage therapy that takes not more than 3.5 hours a week’. The judge considered that that descriptor applied, as the assistance in setting up the TENS machine was indeed help which allowed the claimant to manage his therapy. He therefore agreed that the total 12 minutes each day in which the claimant was assisted in setting up and taking down the TENS machine was assistance to be able to manage his therapy and, as that took no more than 3.5 hours a week, descriptor 3(c) of Activity 3 applied. The judge rejected an argument that the claimant was also getting such assistance while the TENS machine was in operation and he was on his own (paragraphs 6–8).

Decision in brief

Phrase means ‘cannot either chew and swallow food or swallow drink’ – specifically, ‘cannot chew or swallow food’ means ‘cannot either chew or swallow food’ or, put another way, ‘cannot chew and swallow food’ – so a person who cannot chew food but who can swallow thin soup and drink liquids will satisfy a descriptor

Decision in brief

Such agreements in themselves do not count as a ‘loan’ – claimant who subsequently takes out a loan while on benefit to buy out the absent partner’s share may be caught by restriction on interest payments on loans taken out while on benefit, even where a disabled person lives in the house – that is not unlawful discrimination under Article 14 of the European Convention on Human Rights – the Secretary of State had ample justification for the general exclusion of interest on payments to buy out the absent partner on divorce, and had also shown justification for not making an exception in such cases

Summary

The claimant was a Polish national who came to the UK in December 2008. She started work in January 2009 and worked in agency work until March 2011. She claimed (and received) jobseeker’s allowance (JSA) from May 2011, and got maternity allowance from June 2011 until March 2012, her daughter being born in September 2011. In March 2012, she claimed IS on the basis of being a lone parent, but was refused as she was considered not to have the right to reside. The First-tier Tribunal allowed her appeal, and the Secretary of State made a further appeal.

Judge White held that the tribunal had erred in law, but substituted his own decision that the claimant in any case did have the right to reside, as a person with retained worker status when she made her IS claim. The tribunal had erred in holding that the mere fact that the ending of the Worker Registration Scheme, which applied (among others) to Polish nationals meant in itself that the claimant was entitled to IS, without considering whether, as a European national, she had a right to reside (paragraph 16).

However, the claimant did have a right to reside, as that of someone who retained worker status. The claimant became involuntarily unemployed when her work came to an end in April 2011, and subsequently was awarded JSA. The judge considered this meant she retained her status as a worker under Article 7(3)(b) of EC Regulation 2004/38/EC (the ‘Citizenship Directive’) – ie, on the basis of being involuntarily unemployed after being employed for more than one year. This was despite gaps of around two weeks and of around four days between some of her agency jobs, and a delay of around five weeks between the work ending and the claim for jobseeker’s allowance. These did not amount to any undue delay (paragraphs 45–52). Article 7(3)(b) imposed no indication of the period for which worker status could be retained; the judge considered the period to be ‘open-ended though not forever more’ (paragraph 53). It was ‘eminently reasonable’ that there was no difficulty in retaining it for a year ‘in the absence of some intervening event which indicates that the person has withdrawn from the labour market entirely’ (paragraph 54). Claiming maternity allowance and, ‘in the claimant’s circumstances’ (which included remaining registered with employment agencies once her circumstances allowed), claiming IS did not constitute abandonment of worker status. The claimant, therefore, enjoyed retained worker status when she claimed IS in March 2012 (paragraphs 55–58).

Comment from CPAG

Judge White does not comment upon the fact that the domestic rules (ie, the Immigration (European Economic Area) Regulations 2006) now provide that to retain worker status after having worked for a year or more, after six months there must be ‘compelling’ evidence of seeking work and of a genuine chance of getting it. This requirement is not in Article 7(3)(b) of the Citizenship Directive, and is difficult to square with the judge’s finding that at least for a year the test should be whether the claimant has ‘withdrawn from the labour market entirely’.

Summary

The claimant was Greek and came to the UK in about 2006. He never worked in the UK and never paid national insurance here. He received a Greek retirement pension, but not a UK retirement pension. He got AA under the special rules. The claim was refused on the basis that the UK was not the competent state to pay sickness benefits; but the First-tier Tribunal allowed his appeal on the basis that the UK was the competent state.

Judge Jacobs allowed the Secretary of State’s further appeal, and substituted a decision that the claimant was not entitled to AA, because that is a sickness benefit and, on the facts of this case, the UK was not the competent state. The Secretary of State was obliged to pass the claimant’s claim to the Greek authorities. As part of his decision, the judge rejected an argument that AA was an invalidity benefit rather than a sickness benefit for the purpose of EC Regulation 883/2004 (paragraphs 9–10). He also rejected argument that the fact that the claimant had a permanent right to reside in the UK meant the refusal of AA was disproportionate and discriminatory (paragraphs 11–12), and that a claim for AA under the special rules was exempt from the requirement that the UK was the competent state (paragraphs 13–20).

As to who was the competent state, the starting point in this case was Article 11(3)(e) of Regulation 883/2004 (the Article in effect ensures that there can only be one competent state). Subparagraph (3)(e) provides that where the preceding subparagraphs of the Article do not apply, the competent state was the state of residence. Judge Jacobs said that in his earlier decision in CG/4143/2012 he had wrongly treated Article 11(3)(e) as subject only to the following Articles 12–16, whereas now he agreed with Judge White who had held in SL v SSWP [2014] UKUT 108 (AAC) that it was also subject to subsequent Articles (paragraphs 21–24). Applying that, on the facts of the present case: (1) Article 29 provides that cash benefits for pensioners were to be paid by the state responsible for ‘the cost of benefits in kind’ to the claimant; that ‘essentially means health care’ (paragraph 24); (2) although the claimant was entitled to healthcare in the UK under the NHS, Article 25 provides that the cost of benefits in kind to someone getting a retirement pension shall be borne by the state competent for her/his pension; so that in this case, as Greece is paying the claimant a pension, Greece was also responsible for the costs of benefits in kind and, therefore, also for cash benefits including AA (paragraphs 24–26). However, although the Secretary of State was obliged to refuse the claim, he should also (under Article 81) forward the claim without delay to the correct competent state (paragraph 28). If there is evidence of a dispute from the other state about being the competent state, he should instead deal with it as described in the judge’s earlier decision in SSWP v HR (AA) [2014] UKUT 571 (AAC) (paragraph 30) – ie, under Article 6 of Regulation 987/2009, which provides for provisional entitlement pending resolution of the dispute.

Summary

This decision of a three-judge panel of the Upper Tribunal is concerned with a number of issues arising out of the challenges about various work programmes and associated sanction rules, that ended up with the decision of the Supreme Court in R (Reilly and Wilson) v Secretary of State for Work and Pensions [2013] UKDC 68; [2014] AC 453 (see the article in Welfare Rights Bulletin 237). That decision concerned the lawfulness of various work programmes under the Jobseeker’s Allowance (Employment, Skills and Enterprise) Regulations 2011 No.917 (‘the 2011 Regulations’). In that decision, the 2011 regulations were held to be unlawful. In the present decision, Mr Justice Charles and Judges Rowland and Wright were concerned with whether the retrospective validation of the 2011 Regulations made in the Jobseekers (Back to Work Schemes) Act 2013 was lawful in all cases. Also, the judges were concerned with whether, following the decision of the Supreme Court, there was in any mandatory scheme a so-called ‘prior information requirement’, under which claimants were required to be sent information about work programmes before they could be required to participate.

By a majority, the judges held that the 2013 Act did not apply (ie, so as to retrospectively validate the 2011 Regulations and sanctions applied under them) in cases where an appeal had already been brought before the First-tier Tribunal before the Act came into force on 26 March 2013 (paragraph 13(i) and (iii)). That was both as a matter of ordinary statutory construction and, if that was wrong, because the Act had to be read under the Human Rights Act 1998 as not applying in such cases, in order to preserve the right to a fair trial. On that last point, the judges had reference here to the decision of the High Court in Reilly (No.2) and Hewstone v Secretary of State for Work and Pensions [2014] EWHC 2182 (Admin) (4 July 2014), which although from a coordinate (not superior) jurisdiction to the Upper Tribunal, the judges considered they ought to follow (paragraph 37). However, the judges also immediately granted the Secretary of State leave to appeal on these points.

In an unanimous finding, the judges also held that in a scheme which is mandatory, both at referral stage and once actually on it (such as the Work Programme and the Community Action Programme), there is no ‘prior information requirement’ for information before requirement to participate, and the Supreme Court was considered to have decided this question wrongly (paragraph 13(vi)). The judges also held unanimously that the correct reading of the 2011 Regulations was that a claimant considered to have failed to participate had to have shown ‘good cause’ within five working days of being notified of her/his failure (paragraph 13(vii)).

Summary

The claimant had a number of health conditions including asthma, plantar fasciitis and plantar fibromatosis. She was awarded the mobility component of personal independence payment at the standard rate, but was refused the daily living component. Her appeal to the First-tier Tribunal disputed the refusal of the daily living component and argued that she should have been awarded the mobility component at the enhanced rate. The tribunal warned the claimant that the existing award of the mobility component ‘may be at risk’ and suggested that she may wish to consider withdrawing or obtaining representation; she declined to do either and the tribunal decided both to remove the award of the mobility component and to uphold the refusal of the daily living component.

Judge Bano allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred in making inadequate findings of fact and giving inadequate reasons for its decision.

The judge also commented on the tribunal’s making of a less favourable decision. The ‘pitfalls’ of doing this had been pointed out in a number of disability living allowance decisions. For the judge, the problems could arise even where, as here, the issue was raised by the appeal and the claimant is given an opportunity to consider whether to proceed. The claimant will ‘not have had advance notice of the issue’, and in R(IB) 2/04 it was held that claimant had to be given sufficient notice so as to enable her/him to prepare a case on the new issue. In the present case, the judge referred in particular to CDLA/884/2008 where it was held that there was ‘powerful reason’ for tribunals not to make a less favourable decision than that being challenged, ‘except in the most obvious cases…or after an appropriate adjournment’ (cited at paragraph 7). In the present case, the judge could see ‘no reason’ why the tribunal would have wanted to consider if the award of the mobility component was over generous: the claimant’s case for an increase was reasonable and the healthcare professional report was fully reasoned, so that the tribunal’s decision to consider on its own initiative whether to remove the mobility award ‘led to precisely the kind of unprompted error envisaged in CDLA/884/2008’ (paragraph 8).

Comment from CPAG

This decision adds to the weight of argument that tribunals should be very cautious before making a less-favourable decision. Where so minded, an offer of an adjournment may be very important except in the ‘most obvious’ cases. But it should be borne in mind that other decisions have emphasised the tribunal’s basic discretionary right to consider any part of a decision under appeal – see, for example, AP-H v SSWP (DLA) [2010] UKUT 183 (AAC).