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Summary

In this decision it was held that the rule (at regulation 20(2)(a) of the Housing Benefit Regulations 2006, SI 2006 No.213) in which, in a shared care case, a child is treated as ‘normally living with’ the person who is getting child benefit for her/him, with the result that the other parent cannot include the child in her/his HB claim, is not unlawful.

The claimant asked that his son be included in his family for HB purposes, on the basis that he had exactly equal shared care for him as the son spent 26 weeks of the year with him, and he had a residence order for the son. Although none of that was disputed, his request was refused on the basis that the claimant was not in receipt of child benefit for his son. The claimant’s appeal against the decision was dismissed by the First-tier Tribunal, who rejected his argument that the rule at regulation 20(2)(a) unlawfully discriminated against men in contravention of Article 14 of the European Convention on Human Rights read with Article 1 of Protocol 1.

Judge Wright rejected the claimant’s further appeal, holding that although fathers in equal shared care cases were indirectly discriminated against by the child benefit linking rule at regulation 20(2)(a), that discrimination was justified (and so not unlawful) as it was not manifestly without reasonable foundation (paragraphs 5 and 49). The leading case on indirect sex discrimination in the UK social security scheme was that of the Supreme Court in Humphreys v Her Majesty’s Revenue and Customs [2012] UKSC 18; [2012] AACR 46. Although that was not about a child benefit linking rule, it was relevant regarding the lawfulness of a ‘no-splitting’ of benefits rule in which benefit goes to only one parent in a shared care case. In Humphreys, it was held that if there was indirect sex discrimination it will be justified (ie, not unlawful) unless it is manifestly without reasonable foundation (paragraphs 29–32). Reviewing the evidence, Judge Wright was satisfied that the child benefit linking rule at regulation 20(2)(a) indirectly discriminated against men, but also that (given various factors including the purpose of HB, administrative convenience and that, as in Humphreys, it was state support for children could rationally be seen as separate from the way in which children spend their time) the rule was not manifestly without reasonable foundation (paragraphs 33–48; 49–64).

Summary

The claimant was considered to be living together with another person 'as if they were civil partners' (ie, cohabiting as a couple with someone of the same sex) and, as the alleged partner was in full time work, not entitled to IS. The claimant was a woman who owned her home jointly with another woman, 'Ms R'. They had a joint mortgage and a joint account for that. They both lived in the house. However, the claimant said she was not in a couple with Ms R, and had not had a relationship since the death (in 1976) of her husband. She described Ms R as a friend and companion. Ms R said that she had become more of a carer for the claimant as her health had deteriorated. The First-tier Tribunal rejected the claimant's appeal, on the basis that there was evidence of a shared household and a degree of financial interdependence which went far beyond friendship.

Judge Levenson allowed the claimant's further appeal and substituted a decision that the claimant was not a member of a couple. The tribunal, as the Secretary of State conceded, had not given adequate reasons for not accepting the claimant's explanations as to why she was living in the same house as Ms R (paragraph  16). Also, the tribunal had not approached the question of whether the claimant was cohabiting correctly. He noted the recent decision of Judge Jacobs in PP v Basildon District Council [2013] UKUT 505 (AAC), which had pointed to problems with the traditional 'signposts' of cohabitation, and emphasised the importance of an emotional relationship to the concept.

Judge Levenson did not disagree with that, but said: 'However, the very fact that a party denies that there is an emotional relationship in itself severely undermines the notion that there is such a relationship and in my opinion it would requirevery strong evidence indeed (and more than just disbelieving the claimant or witness) to displace that denial' (paragraph 31 ). Furthermore, the judge considered that public acknowledgement of the relationship was essential. For cohabitation to be shown, 'a committed emotional loving relationship must be established and publicly acknowledged ... an unacknowledged relationship cannot be the equivalent of marriage or a registered civil partnership which are, in their very nature, public acknowledgement of an emotional relationship ... it is for those alleging [cohabitation] to prove that there is a publicly acknowledged committed emotional loving relationship' (paragraph 33).

Summary

The claimant had problems with his legs and knees, and could not read. He failed the work capability assessment. On appeal, it was argued that he should be treated as passing the assessment (ie, as having limited capability for work) on the basis that the ‘substantial risk’ exceptional circumstance applied in his case. Dismissing his appeal, the First-tier Tribunal noted that following the death of his wife in 2001 the claimant appeared to be socially isolated and that going to work, where he would meet others, would be good for his mood and it was not unreasonable to expect that.

Judge Jacobs allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred in failing to deal with the claimant’s case, which was about his physical health problems and the attendant risk regarding that should he be held to fail the work capability assessment – there was no evidence about the claimant’s mental state at all (paragraphs 7–8). Most fundamentally, the tribunal misunderstood the nature of the substantial risk rule, at regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008, SI 2008 No.794. That rule, said the judge, ‘is concerned with risk, not benefit. The tribunal should have investigated and considered what risk, if any, would be involved in finding the claimant fit for work…If a substantial risk is established, the provision applies. And it applies even if it is accompanied by some chance improvement in the claimant’s condition. It is not permissible to ignore that risk or to decide that it is a price worth paying for that eventual benefit’ (paragraph 10).

Decision in brief

Comparator accommodation – applying R(IS) 12/08 and Ahmed v Secretary of State for Work and Pensions [2011] EWCA Civ 1186, a strict approach was needed to construe what was the accommodation which was occupied before the acquisition by the claimant – in this case, a period of 22 months before leaving unsuitable rented accommodation and buying the purchased property could not be ignored, and so the tribunal was right to use that as the comparator property (paragraphs 35–41) – that property was physically much the same as the purchased property – although moving in to their own home gave the family more independence and some psychological benefits, that was a universal feature of all people including non-disabled people, and so could not render the purchased property more suitable to the special needs of a disabled person (paragraph 42)

Decision in brief

Claims and tribunals – local authorities are not free to follow their own procedures when administering claims for council tax benefit or housing benefit – Kettering Borough Council illegally demanded that the claimant should provide further information within less than half the minimum one month prescribed by regulations – tribunal wrongly struck out appeal for failure to comply with a direction – circumstances under which that is justified will be exceptional – in this case the failure to comply did not prevent the making of a fair and just decision – tribunal has an enabling role and if a claimant sets out her/his case and waits for the tribunal to give its decision that is legitimate and not a basis for striking out

Decision in brief

Full evacuation or voiding not required - sanitary pads are aids that may result in their being no need for a change of clothing - almost any change of clothing would count (but pads are not clothing) - fact that claimant loses control because of mobility problems in getting to the toilet does not preclude application of the continence descriptor.

Summary

This decision of a three-judge panel of the Upper Tribunal (Judges Ward, O'Connor and Wright) dismisses an argument that the abolition on 14 June 2007 of the rule which allowed backdating of IS (to the date of the asylum claim) following the granting of refugee status was unlawful. The Upper Tribunal held that the change did not breach European Union law or breach the claimant's human rights.

The claimant claimed asylum either in 1997 or 2005 (the facts were not clear), and after an appeal, was granted refugee status on 9 July 2008- Ie, after the abolition of backdating. Therefore, despite her request for backdating, under domestic UK law her entitlement to IS could not be backdated to before 19 July 2008.

The claimant argued that the refusal of backdating was in breach of EU law, in essence because her recording as a refugee merely declared her to be a refugee for all past periods, throughout which she had fulfilled the refugee criteria in the Geneva Convention. Given that, she argued, the refusal of backdating was in breach of Article 28 of Directive 2004/83/EC. The Upper Tribunal considered that neither the Geneva Convention nor the Directive required backdating of IS to be allowed. It considered in particular that Article 23 of the Geneva Convention (which required granting of the same treatment to refugees 'lawfully staying' zin the country as to nationals of the country) did not have retroactive effect; rather, it applied only once it had been recognised the refugee was 'lawfully staying' in the country, and so the right was 'only forward-looking' (paragraph 44). Regarding Article 28 of the Directive (which provides that member states shall ensure those with refugee status shall receive the same necessary social assistance as that provided to nationals of the member state), again the Upper Tribunal considered that a right 'that looks forward only from the point the Member State has granted "refugee status"... ' (paragraph 50). Reviewing the wording of the Article, its definition and relevant authorities, the Upper Tribunal held that it had no retroactive effect (paragraphs 51-71).

Regarding the alleged breach of human rights, which was that she had been unlawfully discriminated against, it was common ground that the Upper Tribunal could not provide the claimant with a remedy even if her arguments on that were correct (remedy would require further appeal), so the argument was dealt with briefly. The Upper Tribunal considered that even on the assumption that, as argued by the claimant, her claim for backdated IS fell within the ambit of Article 1 of Protocol 1 to the European Convention on Human Rights, that being a refugee is a 'status' under Article 14 and that she could show a comparator group by comparison which she was discriminated against, any discrimination was 'plainly justified'. That was because all the rules changed to on the abolition of backdating was to become one 'that conforms with the UK's international obligations' under the Geneva Convention and the Directive. The judges could not see how it could be argued that it was 'manifestly without reasonable foundation' (which was the relevant test) for the UK to bring the rules into line with those law (paragraphs 72-4).

Summary

The claimants were a couple, one of whom was a person subject to immigration control ('PSIC') on the basis that she required leave to be in the UK but did not have it. They submitted a joint claim for tax credits, but the PSIC partner was not able to meet the national insurance number (NI) requirement. A decision was sent deciding that the claimants had consequently 'not made a claim' for tax credits. They appealed, but the First-tier Tribunal decided that it did not have jurisdiction to consider the appeals, as there was no right of appeal against such decisions.

Judge Ward allowed the claimants' further appeal, but only on the basis that there was a specific rule that the NI number requirement did not apply to a PSIC, and that the claimant's rights to a fair trial required that the HMRC's failure to apply that rule could be appealed to the First-tier Tribunal. The judge rejected an argument that any decision that a claimant had not made a claim for tax credits could be appealed; on the contrary, he held that such decisions do not have the right of appeal.

The legislation on the manner on which a tax credit claim must be made is at regulation 5 of the Tax Credits (Claims and Notifications) Regulations 2002, SI No.2014. The national insurance number requirement is at subparagraph (4); however subparagraph (8) provides that the requirement does not apply 'to any person who is subject to immigration control within the meaning set out in section 11519, (a) of the Immigration and Asylum Act 1999 [ie, someone who requires leave but does not have it] and to whom a national insurance number has not been allocated'. On the facts of this case, one of the claimants came within regulation 5(8) and so the NI number requirement should not have been applied to her. The claimants had to be given a right of appeal against a decision failing to observe this, as in the judge's view the question of whether regulation 5(8) applied was a question of fact, and judicial review did not provide an adequate redress as that process was generally concerned with the lawfulness of the decision on the evidence that was available at the time, in contrast to an appeal which was a full rehearing on facts and law (paragraphs 41-52). However, otherwise there was no general right of appeal against a decision that claim for tax credits was incomplete. Tax credits law was different to social security law, and there was no reason to apply caselaw (R(IS) 6/04) holding there was a right of appeal about such decisions regarding benefits, when the main rule on tax credit appeals (at section 38 of the Tax Credits Act 2002) did not provide such a right of appeal (paragraphs 25-31).

Summary

The claimant was found by the local authority to have been living together as husband and wife (commonly referred to as cohabiting) with another person for several years, and the resultant change in the assessment of his capital meant that he had been paid a recoverable overpayment (of over £20,000). The First-tier Tribunal rejected his appeal, holding that the nature of the relationship with the other person and the integration of their finances were 'hallmarks of a friendship that goes far beyond the norm and gives the relationship the characteristic of a close and trusting married couple and not that of two friends'.

Judge Jacobs rejected the claimant's further appeal, holding that the tribunal had not erred in law. That was so even though it was possible that another tribunal might have come to a different conclusion on the same facts; but the issue for Judge Jacobs was whether the tribunal was entitled to come to the decision it did. It was and so there was no error of law (paragraph 14).

Regarding the relevant law, whether a man and a woman were living together as husband and wife 'depends on an analysis of the overall significance of a number of facts individually and collectively' (paragraph 13). The judge considered that the traditional guidelines to deciding in such cases, as set out in Crake v Supplementary Benefits Commission [1982] 1 All ER 498 remained relevant, but contained problems in practice given the wide variety of living and financial arrangements and the limited nature of the evidence that is often available (paragraphs 20-22). These guidelines need supplementing with consideration of the 'emotional element' of the relationship. The leading authority on this was Fitzpatrick v Sterling Housing Association Ltd [1998] Ch 304 and [2001] 1 AC 27, where reference was made (among other things) to 'endurance, stability, interdependence and devotion' and the requirement for the bond to be one of 'love and affection, not of a casual and transitory nature' (paragraphs 23-5). Other authorities referred to similar guidelines. In conclusion, the traditional guidelines remained relevant, but were 'not exhaustive', and tribunals and decision makers should not limit themselves to those guidelines, and should also identify 'any relevant features of the emotional relationship' between the parties (paragraphs 29-30).

Decision in brief

'Social engagement' is not the same as contact for business or professional purposes - contrary finding in KB v SSWP [2013] UKUT 0152 (AAC) (Bulletin 234, p15) disapproved (paragraphs 16-18) - the view of what is taken to be social contact in KB (ie, that contact attending professional appointments such as medical examinations can suffice) has the effect of rendering the words virtually otiose (paragraph 24) - in this contact 'social' must include the kind of things referred to in the Oxford English Dictionary, which defines it as 'marked or characterised by friendliness, geniality or companionship with others; enjoyed, taken, carried out etc., in the company of others' (paragraphs 25-8).

Decision in brief

Meaning of 'daily basis' - use of those words exclude application of the general rule at regulation 34(2) of ESA Regulations 2008 that a descriptor applies if satisfied 'the majority of the time' (paragraph 36)- daily basis means more than majority of the time or frequently, but does not mean literally every day or every working day- essence it what is happening regularly, constantly or continually.

Decision in brief

Does not end automatically after 13 weeks where no limited capability for work determination has been made.