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Summary

The claimant was considered by the local authority to have been overpaid housing benefit between 2014 and 2018. She had reported that her son had moved out of the property in 2014 (and so no non-dependant deductions had been made since then), but the local authority became aware of evidence that the son still used the property as a correspondence address and concluded that he had in fact continued to live there. The claimant appealed. The First-tier Tribunal asked the claimant to provide evidence about her son’s alleged residence elsewhere including council tax bills or oral evidence from the son. The claimant instead provided several letters which repeated her claims but focused on her belief that she was being persecuted by the local authority. 

The tribunal dismissed her appeal, making an adverse inference from the claimant’s failure to respond to what it considered to be its straightforward requests for evidence. The claimant applied for a set-aside of the decision, on the basis of witness evidence from the son and neighbours and (for the first time) a submission that the claimant had lacked mental capacity to respond to the tribunal, backed up with evidence from a consultant psychiatrist. The set-aside application was refused. A subsequent late appeal against the original decision of the tribunal (not the refusal of the set-aside) was eventually dismissed by the Upper Tribunal, which held that tribunals were well used to dealing with litigants with compromised cognitive abilities, that the tribunal had at all times acted fairly, and that the psychiatrist’s report had not established that the claimant lacked capacity at the time of the tribunal. The Upper Tribunal refused the claimant permission to appeal. 

The Court of Appeal granted the claimant permission to appeal, allowed the appeal and remitted the issue of the son’s place of residence during the period of the alleged overpayment to the First-tier Tribunal to be reheard in the light of the evidence now available. There had been a mistake of fact leading to an error by way procedural unfairness, which the Upper Tribunal (in not properly assessing the detail of the psychiatrist’s report) had not identified. That the mistake of the First-tier Tribunal was revealed by fresh (ie, post-decision) evidence was not a barrier as (per the principles in Ladd v Marshall [1954] 1 WLR 1489) the evidence was objective and uncontentious, the mistake was not the fault of the claimant or their representative and the mistake had caused unfairness. Giving the lead judgment in a unanimous decision, Lord Justice Stuart Smith noted that both the First-tier and the Upper Tribunal are required by their rules to adopt a flexible approach in order to achieve a just result and that, ‘... where a litigant in tribunal proceedings is found to have lacked capacity (or to have been compromised in their ability to participate fully in the proceedings) after the event, it may be relatively easy to conclude that there has been a mistake of fact’ (paragraph 47). Further, there may be cases ‘... where even a specialist tribunal judge will not be alerted to the difficulties that the litigant is facing. Where that is recognised at a later date, either on a set aside application or on an appeal, the full extent of the tribunal’s powers is available, up to and including setting aside or allowing the appeal, to ensure that the final outcome is fair’ (paragraph 48). This was such a case. The mistake of fact (not the fault of the claimant) was that the tribunal had considered the claimant to have capacity, when the psychiatrist’s report, properly assessed, showed that the claimant was suffering from a severe mental disorder at the time of the hearing that adversely affected her ability to participate fully in the proceedings (including in responding to evidence requests). That was something not appreciated by the tribunal and so led to an error of law by way of ‘material procedural unfairness’ (paragraph 64). The Upper Tribunal had wrongly considered that the psychiatrist’s report had not shown that. 

Comment from CPAG

Fresh (ie, post-decision) evidence and arguments will not usually permit a tribunal decision to be overturned. But this case is an example of the limited exception to that, provided by the Ladd v Marshall principles. It is also worth noting that in this case the court was dealing with a very late appeal against the tribunal’s decision and would seem to have been primarily concerned with the error of law in that decision, rather than an appeal against the refusal to set the decision aside. But clearly it considered that – for the same reason – that was wrong too.

Summary

In this High Court judicial review case, a reference has been made to the Court of Justice of the European Union (CJEU) for a preliminary ruling, and consequently no substantive decision has yet been made by the High Court. 

The case concerns a claimant (a Bangladeshi national) who came to the UK in 2021 as a dependant of her adult son (a Spanish national) who was a worker and had gained settled status in 2019. The claimant had pre-settled status. Initially she lived with him and was dependent on him, but following domestic abuse she left his home in 2023 and ceased to be dependent on him. She was refused universal credit (UC) on right to reside grounds. She applied for judicial review on grounds of discrimination. 

Mr Justice Chamberlain needed to consider a related but distinct point, namely whether the claimant had a freedom of movement right to reside (ie, under European law) as a dependant family member of a European Union (EU) citizen who had retained her right to reside as a family member after the dependency ceased, by virtue of Article 17(2) of the Withdrawal Agreement. But that involved a question as to whether Article 17(2) of the Withdrawal Agreement could apply to a person, like the claimant, who was a dependant family member outside the host state (in this case, the UK), but had only actually entered the UK after the end of the ‘transition period’ following the UK’s exit from the EU, after 31 December 2020. The judge referred this question to the CJEU.

Summary

The landlord required eight weeks rent in advance, and where that was not paid regarded the claimant as eight weeks in arrears from the outset, and requested direct payments of HB (ie, to her) immediately. The local authority refused to commence direct payments for arrears, arguing that arrears arising out of rent in advance did not count. The First-tier Tribunal agreed and dismissed the landlord’s appeal.

Judge Gray allowed the landlord’s further appeal and remitted the case for rehearing by a fresh tribunal. The tribunal had erred in holding that arrears arising from rent due in advance could not count as arrears. Rent was in arrears once the contractual date for payment had passed, irrespective of whether or not it was due in advance. The plain words of the relevant regulation (regulation 95 of the Housing Benefit Regulations 2006, No.213), mandated payment directly to the landlord where rent is the equivalent of eight weeks in arrears, subject to the required consideration of whether it was in the ‘overriding interest’ of the claimant not to make direct payments (paragraph 41). The only issue for the new tribunal was to consider the overriding interest question (paragraphs 2–3).

The judge was considering the direct payment for arrears rule at regulation 95, not the rule at regulation 96 allowing direct payment in wider circumstances (and where regulation 95 does not apply). The judge held that whether or not the eight-week-in-advance rental provision in the tenancy agreement was set with the intention of defeating the eight-week arrears rule in regulation 95 (as argued by the local authority) was irrelevant. There was a contrivance rule at regulation 9, but that concerned the issue of a tenancy contrived to take advantage of the HB scheme (paragraph 17). The judge adopted the analysis of regulation 95 made by Commissioner (now Judge) Jacobs in CH/1821/2006 and in R(H) 1/08, where he held that regulation 95, where applicable, imposes a mandatory duty to make direct payment, and that consideration of whether it is in the overriding interest of the claimant not to make direct payments was also mandatory both for the local authority and the tribunal (paragraphs 22–26). The phrase ‘overriding interest’ was to be given its natural meaning, but set a ‘high hurdle’ (paragraph 28). A policy of financial inclusion or other ‘generic’ reason cannot be the basis for deciding the question; although such issues could be ‘part of the picture’, individual criteria must also be considered, including ‘the interest in the tenant retaining the accommodation they have secured’ (paragraph 31).

Comment from CPAG

The judge said that the issue of whether arrears of rent due in advance could count was apparently a matter which arose frequently, and had been told that a binding decision will be of practical assistance. The decision must now be regarded as the key authority on the question.

Decision in brief

Activity 12(c) ‘reduced awareness of everyday hazards’ leading to significant risk of injury or damage to property or possessions – claimant vulnerable in social situations and had been subject to exploitation for sex – such hazards are not ‘commonplace or ordinary’ and so are not within the ambit of the descriptor, which is concerned with commonplace hazards encountered when going about daily life such as when making hot drinks or chopping food, crossing roads or using electric plugs

Decision in brief

Claimant already entitled to contributory ESA – awarded from date of PIP award, not from later date of award of income-related ESA – the ‘relevant benefits’ involved are ESA and PIP – regulations 6(2)(e) and 7(7)(a) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 No.991 apply

Decision in brief

Claimant may need prompting to take nutrition although (applying MM and BJ v SSWP (PIP) [2016] UKUT 490 (AAC)) that did not include a need for prompting to include a healthy or nutritious diet – but if claimant ‘prompted’ by felling weak due to lack of food, that might be indicative of not performing the activity to an acceptable standard – claimant may have difficulties with budgeting decisions even if there is sufficient intellectual ability and also an ability to motivate about other tasks

Decision in brief

EU right to reside rules on family member retaining right to reside on death or departure from UK (Article 12 of EC Directive 2004/38/EC) – does not provide a simple continued right to reside for the surviving EEA national – it merely provides than any independent right to reside they still have is unaffected by the death/departure, and a permanent right to reside is dependent on such a right

Note from CPAG

See also GA v SSWP (SPC) [2018] UKUT 172 (AAC)

Decision in brief

EU right to reside rules on family member retaining right to reside on divorce (Article 13 of EC Directive 2004/38/EC) can only apply if the British citizen had exercised European freedom of movement rights – even where it does apply, Article 13 does not provide a simple continued right to reside for the now divorced EEA national – it merely provides that any independent right to reside they still have is unaffected by the divorce, and a permanent right to reside is dependent on such a right

Note from CPAG

See also JP v SSWP (ESA) [2018] UKUT 161 (AAC)

Decision in brief

A ‘wide range of simple meals for one person can be prepare and cooked in 20 to 30 minutes without needing the cook to be standing over it or perching next to it during the process’ – logic of CW v SSWP [2016] UKUT 197 applies to Activity 1 as it does to dressing and cooking – unless a claimant ‘is unable to stand safely for more than a few minutes’ he is ‘unlikely’ to require a perching stool – the way in which the need for using a perching stool is assessed ‘needs to be revisited’

Comment from CPAG

This decision, on the judge’s own comments, is obiter (not formally binding) on this point. In any case, it seems to focus on the idea that food often does not need to be watched over while it is cooking. Arguably, it neglects the absolute need to be watched over food while it is being prepared. Also, it fails to take into account, or at least to mention, the decision in EG v SSWP (PIP) [2015] UKUT 275 (AAC), which did find that perching stools can be an aid for preparing food.