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Decision in brief

Swedish claimant in receipt of Swedish pension moved to UK and claimed attendance allowance – Article 6 of EC Regulation 987/2009 deals with procedure – claimant is to be provisionally entitled to benefit from one of the states – where the claimant is not working, provisional entitlement arises under the legislation of the state of residence – states may refer the matter to the Administrative Commission – in present decision, Judge Jacobs does not decide who is competent state as the issue arises in other cases currently before him

Summary

The claimant went to the official (gov.uk) website to claim JSA online. Due to a prompt on the website suggesting to the claimant that he could be better off claiming pension credit (PC) and asking if he would like to consider a claim for that 'or continue with this application for jobseeker's allowance', the claimant eventually ended up claiming PC. Only when that had been refused did he complete a claim for JSA. The First-tier Tribunal accepted that his JSA claim should be backdated to the time he originally started to make a JSA claim, holding that on the facts that regulation 19(5)(d) of the Social Security (Claims and Payments) Regulations 1987 No.1968 applied. That provides that a claim for JSA or income support can be backdated for up to three months where 'the claimant was given information by an officer of the Department for Work and Pensions... which led the claimant to believe that a claim for benefit would not succeed.'

Judge Wright allowed the Secretary of State's further appeal, and remitted the case to a new tribunal. However, that was only on the basis that the tribunal had given inadequate reasons about precisely how the claimant came to be of the view that the JSA claim could not succeed. He upheld the tribunal's substantive finding that the information on the DWP website could amount to information from an officer of the DWP, and held that on the facts of the case the tribunal did not err in finding that the claimant had 'been given information by an officer of the DWP' (paragraph 8).

In so holding, he held that the earlier decision of Judge Wikeley in S K-G v SSWP (JSA) [2014] UKUT 430 (AAC) was wrongly decided and should not be followed (paragraph 6). That decision held that information on the website did not constitute information given by an officer of the DWP as it lacked the requisite 'interchange of some kind between the officer and the enquirer'. In particular, Judge Wright took into account evidence that the DWP is responsible for the accuracy of the information on the website (paragraph 20) and that it had been held in R(IS) 3/01 and that the words in regulation 19(5)(d) 'are not to be given any artificially restricted meaning' (paragraph 31) . The words 'by an officer of the DWP' referred to the status of who provided the information, not how it was provided; the requirement in S K-G that there had to be some sort of personalised, specific interchange between the claimant and the DWP did artificially restrict the meaning of the words and so was inconsistent with previous caselaw (paragraphs 26-31 ).

Summary

The claimant had an appeal before the First-tier Tribunal concerning a challenge to a decision refusing to change her award of disability living allowance (DLA) following a change of circumstances. The hearing was adjourned due to the tribunal running out of time, with a date set for resumption on a date some two months later. While the appeal was adjourned, the claimant, having sought advice, gave written notice of withdrawal of her appeal. However, the tribunal considered that its consent was required before withdrawal could be granted, refused to allow withdrawal and went on to decide that the claimant had no entitlement to DLA.

Judge Knowles QC allowed the claimant's further appeal, and substituted a decision that she had lawfully withdrawn her appeal. Therefore, the tribunal's decision that she had no entitlement to DLA was of no effect. The tribunal had erred in deciding that its consent was required before the appeal could be withdrawn. Rather, held the judge, a withdrawal sent by written notice was under a rule giving an absolute right to withdraw, which applies even if a hearing had commenced but subsequently been adjourned (paragraphs 2 and 35). Although consent is required where the request to withdraw is made during a hearing, the tribunal was wrong to regard a hearing as still taking place during an adjournment (paragraph 36).

The relevant rule was at rule 17(1 )(a) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 No.2685. That provides that a party may give notice of withdrawal (ie, without a need for consent) 'by sending or delivering to the Tribunal a written notice of withdrawal'. However, under subparagraphs (2) and (3)(c), where notice is given 'at a hearing', the tribunal must consent to the withdrawal. In the present case, the judge held that withdrawal under subparagraph (1)(a) (ie, by written notice and not at the hearing) 'gives a party an absolute right to withdraw' (paragraph 35). The tribunal was wrong to regard the claimant's withdrawal to have been made 'at a hearing'. A hearing is defined as 'an oral hearing' and there was no such hearing taking place when the withdrawal was notified, in which case the withdrawal took immediate effect (paragraph 36). In so holding, the judge held that the decision in BP v SSWP (DLA) [2011] UKUT 228 (AAC) was no longer good authority on the interpretation of rule 17, and the decision of Judge Hemingway in LC v SSWP [2015] UKUT 315 (AAC), holding that there was an absolute right to withdraw during an adjournment, was approved (paragraph 40). The only caveat was that rule 17(3)(b) provides that a tribunal can issue a direction that withdrawal may take effect only with the tribunal's consent. So, for example, in the present case the tribunal could have issued such a direction when it adjourned, with the effect of providing that consent was required - however, it did not (paragraph 37).

Summary

On conversion of his claim for incapacity benefit to contributory ESA, the claimant was placed in the work-related activity group. At that time, he was resident in Spain. He appealed to the First-tier Tribunal. He did not request a hearing and the tribunal decided the case on the papers. In rejecting the appeal, the tribunal considered the application of the 'substantial risk' provision for work-related activity at regulation 35(2) of the Employment and Support Allowance Regulations 2008 No. 794. The tribunal found that as the claimant lived abroad, work-related activity for him a 'hypothetical consideration' as he would not actually be required to undertake such activity while resident abroad.

Judge Mitchell allowed the claimant's further appeal and remitted the case to a new tribunal. The claimant did not have a fair opportunity to put forward a case in relation to regulation 35(2) because he was unaware of the type of work-related activity by reference to which the regulation would be applied (paragraph 20). The tribunal had no information from the Secretary of State about the type of work-related activity it considered could be carried out without substantial risk.

The judge asked the Secretary of State to provide a submission about how regulation 35(2) should be applied in a case where the claimant was resident outside Great Britain, in particular with regard to the requirement that the tribunal would have information about the work-related activity that might be required in a particular geographical area. The Secretary of State replied that in a case where the claimant chose not to attend a hearing, it would almost always take place in Newcastle (where the DWP international pension centre was based): therefore, in such a case the relevant evidence would be from the Newcastle area. Where the claimant chose to attend the hearing in person, s/he could choose a venue suitable to her/him, in which case the relevant evidence would come from the area in which the tribunal was located. Judge Mitchell held that if the appellant does not object, the Secretary of State's approach should be adopted; if the appellant does object to that, then the tribunal needs 'to decide for itself how to proceed taking into account the reasons for the objection and any submissions of the Secretary of State' (paragraphs 16- 22).

Summary

The claimant had Parkinson’s disease, and was awarded DLA in 2010. In 2013, following a fraud investigation, the award was revised and a decision (the ‘entitlement decision’) that the claimant had not been entitled to DLA at all substituted. Shortly after, another decision (the ‘overpayment decision’) said that in the light of the entitlement decision, the claimant had been overpaid and that (as it had been caused by the claimant’s misrepresentation of a material fact) the overpayment was recoverable from him. The claimant appealed against the entitlement decision, but the tribunal treated that as against the overpayment decision too. However, the tribunal dismissed the claimant’s appeal.

Judge Poynter allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred in failing to consider whether there was a legitimate ground for revising the original award. It, therefore, failed to address the legal questions that the law required it to answer before it could properly uphold the Secretary of State’s decision (paragraphs 20–23).

In this case, revision was the requisite ground for changing the original award. The relevant rule was at regulation 3 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 No.991. On the facts of this case, it was too late for a revision within one month. That left revisions which may be carried out at any time on specified grounds, as provided for by regulation 3(5). As the judge pointed out, the ‘official error’ ground at subparagraph (5)(a) was not relevant (as that requires that there have been no contribution from the claimant, whereas the Secretary of State’s case was that the claimant actually caused the overpayment); that left grounds relating to ‘ignorance of or mistake about a material fact’ (paragraphs 13–16). Further, as this case concerned a ‘disability determination’ (ie, whether the disability grounds for DLA were satisfied) it was required under regulation 3(5)(c) to be shown that ‘the claimant knew or could reasonably have been expected to know of the fact in question and that it was relevant to the decision’. Unless that applied, there were no grounds for revision under regulation 3(5)(c) at all, and hence in this case no overpayment (ie, because the original award could not be changed) (paragraphs 17–22). As the tribunal had not considered that, there was no ground for upholding the decision under appeal; however the judge considered that that question, and the question of whether the claimant met the disability conditions for DLA when he first claimed, should be considered by a new tribunal.

Summary

The claimant’s son had been diagnosed with ‘high-functioning autism/Asperger’s syndrome’. He attended school until age 18, but after he turned 18 the local authority agreed to cover the cost of a home learning programme, under which the son worked at home with an information technology tutor for five hours a day, five days a week, for 39 weeks a year. HMRC decided that this was not ‘approved education’ for child benefit purposes and terminated the claimant’s entitlement. Her appeal was refused by the First-tier Tribunal.

Judge Levenson allowed the claimant’s appeal and substituted a decision that the claimant was entitled to child benefit. The relevant rule breached human rights law as it unlawfully discriminated against the claimant as the parent of a child with special educational needs who required a home education programme after the age of 16 (paragraph 15(i)). The relevant rule was at regulation 3(2)(a) of the Child Benefit (General) Regulations 2006, SI No.223. That requires that to count as a ‘qualifying young person’ for child benefit, the young person must be in full-time non-advanced education either at school or college or elsewhere but ‘approved by the Commissioners’. However, under subparagraph (3), a person cannot be a qualifying young person other than at school or college unless that had started before s/he turned 16. Thus, on the facts of this case, the regulation prevented the claimant from being entitled.

That was, held the judge, in breach of the provisions of the European Convention on Human Rights preventing discrimination regarding property (Article 14 read with Protocol 1 of Article 1). Where, agreed the judge, there is a statement of special educational needs and a programme of education has been specifically assessed by the local authority as being suitable, there was no difference between people who had required such a programme to start before their 16th birthday and those who required it to start after their 16th birthday, and the difference in treatment could not be justified (paragraph 15(j) and (k)). The judge assumed that consideration will now be given to amending the regulations (paragraph 16).

Decision in brief

The time limit applies to the supervision/ prompting/assistance, not to the therapy (paragraph 25) – no rule that states that because a claimant’s problems create limits within one descriptor, they cannot also be assessed as creating limits within another descriptor – PE v SSWP [2015] UKUT 309 (AAC) approved (paragraph 28)

Note from CPAG

Judge Williams, who made this decision, took the same approach to descriptor 3(f), a case involving kidney dialysis, in HH v SSWP [2015] UKUT 558 (AAC) (16 October 2015) (file number CPIP/1290/2015). There he also observed, on the facts, that the claimant was able to manage his dialysis without supervision, prompting or assistance, in which case the descriptor did not apply.

Decision in brief

Context of test is the function of 'identifying those who cannot reasonably be expected to work' and so test refers to a person 'being oriented towards a workstation, whether sitting or standing, in such a manner that they may fairly be described as capable of performing a job of work' - if a person needs to sit with a rigidly outstretched leg so that they cannot fairly be said to be capable of doing a job of work at a workstation, this does not amount to remaining sat 'at a work station'

Decision in brief

Supervision monitoring the claimant's condition in case of an attack and before any therapy is administered is not within 3(c)-(f) (SSWP v AN applied) - 'until there is therapy, there can be no supervision to manage it' - but risk to claimant giving rise to a need for supervision could apply in a number of activities need not be a risk that is unique to a particular activity- 'It is sufficient if it is a general risk, even one that applies when the claimant is doing nothing, provided that the requirements of a particular descriptor are satisfied'

Decision in brief

Claimant lost entitlement to the mobility component when he went to live in France and attempted to reclaim it when he returned to live in Great Britain, aged 68- DLA mobility component is a 'special non-contributory benefit' under EU law and entitlement was therefore correctly decided under domestic law, which includes the age 65 cut-off rule - in any case there was nothing intrinsic to the age 65 cut-off rule which is liable to inhibit free movement

Summary

The claimant was (according to the local authority) sent decisions about his entitlement to council tax benefit in May 2012. The claimant said he never received them, and only became aware of them in September 2013. At that point he attempted to appeal against them, but the local authority said they were made outside the absolute time limit for appeals of 13 months, and passed it to the First-tier Tribunal. The tribunal decided, without further recourse to the parties, to strike out the appeal for being out of time. The tribunal said there was sufficient evidence to show that the claimant had been sent the decisions, and given that, the question of whether he had actually received them was immaterial.

Judge Hemingway held that, on the facts of the case, the tribunal had erred in not getting further oral evidence from the claimant before deciding whether to strike the appeal out, and so remitted the case to a new tribunal. The judge did not dispute that that, under rule 23(5) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 No.2685, no appeal may be made more than 12 months after the normal one-month time limit. Neither did he dispute that what was crucial was whether the claimant was sent the decisions. However, in this case the claimant’s oral evidence would have been relevant to the question of whether it was an exceptional case, such that Article 6 of the European Convention on Human Rights (right to a fair trial) required the exercise of discretion to accept the appeal beyond the absolute time limit (paragraph 14). The local authority and tribunal were both wrong to consider there was no such discretion. In Adesina v Nursing and Midwifery Council [2013] EWCA 818, the Court of Appeal held that Article 6 required the application of discretion to such an absolute time limit so as to achieve the minimum necessary required for compliance with the Convention (paragraph 15).

In Adesina, noted the judge, it was also held that in effect such discretion would arise only in exceptional circumstances and where an appellant had done everything they could to make the appeal within time. A number of subsequent decisions had illustrated ‘how sparingly the discretion should be exercised’, but the discretion is there (paragraph 15). On the facts of this case, the claimant’s oral evidence about non-receipt of the decisions might have been relevant to whether or not to strike out the appeal, in that it might have supported the proposition that the decisions had in fact not been sent, and also might have shown whether he had been otherwise unaware that the decisions had been made and whether he had acted promptly once he was aware (paragraph 14).

Comment from CPAG

This decision is not authority for an argument that the 13-month time limit is not ‘absolute’ in most cases. Satisfying at least that time limit remains vital in most cases. The decision is authority that discretion to admit an appeal made outside that time limit should be considered in ‘exceptional circumstances’. Even then, the judge did not go so far as to say that this was such a case; rather that the tribunal should have taken oral evidence before considering whether or not to exercise such discretion.

Summary

The claimant was entitled to disability living allowance lower rate mobility component and middle rate care component. When she renewed the claim, the award was reduced to one of lower rate mobility component only, and after mandatory reconsideration the claimant appealed. She indicated that she wished the appeal to be heard ‘on the papers’ ( ie, without an oral hearing), but also that that was because she did not feel she could attend the tribunal venue in person because she had panic attacks and did not like going to strange places. A GP report in the papers confirmed her severe agoraphobia and indicated (to the DWP) that a home visit may be better than making an appointment. The tribunal held a ‘paper hearing’ (ie, made a decision without an oral hearing), on the basis that it considered it had sufficient evidence to make a decision, and rejected the claimant’s appeal.

Judge Hemingway allowed the claimant’s further appeal and remitted the case to a new tribunal, with a direction to hold an oral hearing with the claimant given a reasonable opportunity to attend – eg, by considering holding a domiciliary hearing or one at a location familiar to the claimant. In so deciding, he endorsed the submission of the Secretary of State that the claimant had clearly indicated that she wished to take part in the proceedings but did not feel able to because of her mental health problems, and the tribunal should have considered adjourning and also that the claimant might be a ‘sensitive witness’ with particular consideration given to how to facilitate her/his giving evidence.

Specifically, the tribunal erred in not taking into account the appellant’s wish to participate in the proceedings but for her illness. It also did not appear to consider alternative ways of proceeding – eg, a domiciliary hearing or a hearing at a location familiar to the claimant, or an adjournment to allow her participation by telephone. Further, the tribunal did not consider the possibility that the claimant might fall within the definition of a ‘sensitive witness’ such that it would be appropriate to consider possibilities such as evidence being given by telephone or video link or other means. Finally, it gave undue prominence to its view that it had sufficient evidence to proceed. That did not of itself mean that proceeding on the papers was fair and just, or that other factors in rule 2 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 No.2685 had been properly taken into account (paragraphs 13–14).

Comment from CPAG

This decision is a helpful reminder that the mere fact that a tribunal feels able to proceed without a claimant’s presence is not necessarily sufficient: a claimant who wants to participate should be facilitated to do so, whatever the tribunal thinks about what it already has in the appeal papers.