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Summary

The claimant was living and working in Britain, but his wife and children were in Poland. Although it was accepted that under European law the children counted as his family members, he was held not to be entitled to child benefit for them as they were not living with him and it was considered unlikely that he was contributing to the cost of providing for them. That decision was upheld by the First-tier Tribunal.

Judge Ward allowed the claimant's appeal and substituted a decision that, based on the facts and evidence, the claimant was contributing to the cost of providing for the children. That evidence included bank statements from a period later than that at issue in the appeal, and that the claimant transferred money using an online payment system as well as by other means. The First-tier Tribunal had erred in giving a ‘bald assertion’ that the claimant’s income was insufficient to make the payments he should be making towards the upkeep of the children, without analysing the evidence submitted by the claimant. Judge Ward’s analysis showed that the claimant’s earned income would have accommodated a weekly payment of a sufficient level (paragraph 24).The tribunal had also erred in deciding that his living costs would not allow adequate expenditure on his children while not realising that the claimant’s statement as to his expenditure on living costs was for joint living costs – ie, including those incurred by his partner in Poland (paragraph 21). It was permitted to take account of evidence of earnings that post-dated the date of the decision; but the tribunal had overlooked the evidence of the amounts leaving the claimant’s bank account and being sent to Poland to support his family (paragraph 22).

Also, the judge rejected an argument by HMRC that, even though the claimant was sending sufficient money overall, the claimant was not making weekly payments at the required rate, and so did not count as making adequate provision. The judge did not read section 143(1)(b) of the Social Security Contributions and Benefits Act 1992 as requiring the making of weekly payments, holding that, ‘It matters not whether the contribution is made monthly or fortnightly or even more sporadically and unpredictably than that. As long as there is evidence of contributions at the relevant child benefit rate towards the upkeep/cost of a child or children during the period under scrutiny, the statutory test will be satisfied’ (paragraph 32).

Summary

The claimant had been entitled to PC including the severe disability premium (SDP) since 2004. Although she lived with her son and daughter-in-law, their presence was ignored for SDP purposes as the son was regarded as a ‘co-owner’ of the house. In 2006 the property was transferred into the son’s sole name, albeit with a deed of trust drawn up so that the claimant remained entitled to half the net profit of any sale. When the DWP discovered this in 2011, it issued a decision that there was no longer a ‘co-owner’ and so the claimant had been overpaid the SDP. The First-tier Tribunal held that the claimant remained a co-owner of the property by virtue of the deed of trust, and had not been overpaid.

Judge Mark held that the tribunal had not erred in law. Although the son had become the sole legal owner of the property, in the PC rules ‘co-owner’ had a wide meaning and was not confined to legal, as opposed to beneficial, ownership. The tribunal had correctly distinguished R(H) 7/05 on the definition of ‘owner’ in the housing benefit regulations, found that in the ordinary sense of the word ‘co-owner’ the claimant continued to own part of her home as under the PC rules the claimant remained a ‘co-owner’ (paragraphs 7–9).

Construing the term ‘co-owner’ in the State Pension Credit Regulations 2002 No.1792, Judge Mark held that the word was intended to have a wide meaning, not confined to legal ownership, and that on the facts of this case the claimant remained entitled to be considered a co-owner in the ordinary use of that word (paragraphs 13–14).

Decision in brief

Claimant who cannot leave the house without another person satisfies the descriptors – although other descriptors in Activity 1 specify a mental health element, no such requirement in 1(d or (f) – not limited to ability to navigate when on the journey – ‘extraordinary’ if someone who was permanently housebound scored fewer points than someone sometimes able to go out – ‘cannot’ is the significant word in the descriptors, not ‘follow’

Note from CPAG

See the contrasting DA v SSWP, and the article in Bulletin 249, p4.

Decision in brief

Claimant who because of anxiety requires help with reassurance and encouragement – does not satisfy the descriptor as it ‘deals with navigation and excludes dealing with other difficulties that may be encountered along the way’ – ‘following’ the route is the subject of the descriptor – that is the natural meaning of the words in the descriptor, and is in contrast to some others in Activity 1, which deal with inability to embark on or complete a journey, but not following its route

Note

See the contrasting RC v SSWP, and the article in Bulletin 249, p4.

Decision in brief

ESA does not constitute two benefits – amount a claimant entitled to on conversion must encompass consideration of both the contributory and income-related amount – where the support group criteria are satisfied, it is an official error for the decision-maker (or a decision maker considering a revision of that decision) not to consider entitlement to the enhanced disability premium – no requirement for a conversion process claimant to ‘claim’ either the premium or income-related ESA

Decision in brief

Relevant provision is regulation 31 of the Jobseeker’s Allowance Regulations 1996, SI No.207 – does not mean that claimants who received jobseeker's allowance were wrongly paid – instead, where the proposed agreement is not signed, it must be referred to a decision maker for consideration as to whether it is reasonable

Decision in brief

Claimant cannot challenge direct payment by challenging landlord's title to grant him the tenancy - ie, by alleging an illegal letting - it is well established that so long as the tenant remains in possession undisturbed by any adverse claim, the tenant cannot dispute the landlord's title - facts showed that the tenant was in the requisite eight weeks' or more arrears, and there was no evidence that it was in his overriding interest not to make payments direct to the landlord

Summary

The claimant had Asperger Syndrome and obsessive compulsive disorder. His appeal to the First-tier Tribunal included the question of whether he should score points under Activity 9 for ability to engage with other people face to face. He had moved into supported accommodation following becoming verbally aggressive at home; avoided communal areas and contact with other residents and staff; he did not have friends; was prone to angry verbal outbursts; was unable to develop and build personal relationships; he was a member of a local theatre group and was more comfortable there now that other members were more familiar to him, but that he ‘acted a role’ when having to mix with others.

The tribunal decided that he scored eight points under descriptor 9(d), which applies where the claimant ‘cannot’ engage with others due to such engagement causing either ‘overwhelming psychological distress’ to the claimant or ‘substantial risk of harm’ to the claimant or another person. The Secretary of State argued that was wrong, as the claimant had allegedly engaged fully and appropriately at his medical and at the tribunal hearing, could interact at his drama group, worked in a garage and was planning to go to university.

Dismissing the Secretary of State’s appeal, the judge first noted that rules provided a claimant should be regarded as capable of carrying out an activity only if s/he could do so safely, to an acceptable standard, repeatedly and within a reasonable time period. ‘Repeatedly’ was defined as often as is ‘reasonably required’ (paragraph 4). A descriptor applied if it was satisfied on over 50 per cent of the days being considered (paragraph 5). Also, although the rules did not define ‘engage’, there was a definition of ‘engage socially’ (which includes interacting in a ‘contextually and socially appropriate manner and being able to ‘establish relationships’). That was curious, as the words ‘engage socially’ in fact did not occur anywhere else; however the judge considered that the definition was nevertheless a ‘relevant consideration’ in considering what it meant to ‘engage’ (paragraphs 10–11). The wording of Activity 9d was on balance to be construed as ‘referring to such engagement as he [the claimant] may be capable of but for such overwhelming distress or the relevant risk from such behaviour’ (paragraph 12).

Applying that, the tribunal had abundant evidence that the claimant could not engage with other people as often as reasonably required and to an acceptable standard on over 50 per cent of the days. Being able to put on an act on special occasions, even a few times a week when attending drama group, did not change that (paragraph 17). There was also evidence of verbal aggression at home and minimal contact with residents in the supported accommodation. Though it could have been better expressed, it was also clear that the tribunal had concluded that to engage more would give rise to more verbal aggression with a consequent risk to the claimant’s safety (paragraph 18).

Summary

The claimant’s earnings fluctuated a lot due to pay increases and varying overtime. She reported these changes to the local authority at regular intervals by taking in her payslips. She was never provided with explanations of the averaging exercise that the local authority used when calculating her income. In June 2010, an overpayment decision was issued following the claimant’s submission of monthly payslips from November 2009 to April 2010. Her pattern of pay had not actually changed until January 2010; however, the local authority simply averaged out the pay over the whole period, with an effective date from the first of payslips in November, and concluded that as her income had gone up she had been overpaid throughout. The First-tier Tribunal rejected the claimant’s appeal.

Judge Lane allowed the claimant’s further appeal, holding that none of the overpayment was recoverable. That was because it had been caused by official error to which the claimant had not contributed, and the claimant could not reasonably have been expected to have realised that she was being overpaid. The local authority had erred in the way it averaged the earnings by including two months (November and December 2009) in which the claimant’s pay remained the same in a known pattern and, by adopting that error, the tribunal also erred (paragraphs 22–25). The claimant, although she did not report every change in her circumstance as it happened, did report changes in her earnings regularly. Given the lack of information the claimant had been given about how her earnings were calculated by the local authority, the judge was ‘simply unable to see how the claimant could have divined that she was being overpaid from the information available’. She had, therefore, not contributed to the overpayment and could not reasonably have been expected to have realised one was occurring (paragraphs 58–63).

The relevant legislation for averaging of earnings during an award is at regulation 29(3) of the Housing Benefit Regulations 2006 No.213. The judge accepted that given the wide discretion in the period to be used in averaging, it was difficult for a claimant to establish an official error regarding that (paragraph 14). But in this case, the local authority’s approach was flawed in applying simple averaging over the whole period covered by the payslips and in providing no explanation of the process of previous assessments, with the result that award notifications to the claimant were ‘impenetrable’ (paragraph 17). The inclusion of two months in which the claimant’s pattern of pay had not actually changed was not a choice open to the authority even given its wide discretion, and so was a ‘fundamental mistake’ which significantly undermined the decision (paragraph 24).

Comment from CPAG

The judge’s decision is a clear warning to local authorities that the wide discretion under regulation 29(3) does not give them carte blanche to take whatever approach is most convenient to them. They must also show to claimants how their earnings have been calculated – otherwise claimants may legitimately argue that they have neither contributed to the overpayment nor can be have expected to have realised an overpayment was occurring.

Summary

The claimant was transferred from incapacity benefit to employment and support allowance (ESA) from 3 November 2011. The claimant appealed about the amount of ESA he was awarded. That appeal (the ‘ESA appeal’) was allowed in August 2012, but the claimant had not attended the hearing, and was not told by the DWP that his ESA was increased, with arrears from 3 November 2011, until 25 October 2012. The increased ESA meant the claimant’s HB entitlement was reduced, and there was an overpayment from 3 November 2011; however, the local authority did not become aware of the increased ESA until March 2013. At that point, it decided that there was a recoverable overpayment for the period 3 November 2011 to 4 November 2012.

The First-tier Tribunal dismissed the claimant’s appeal, holding that the overpayment was caused by the claimant not informing the local authority that his ESA appeal had been allowed, and not by official error.

Judge Markus QC allowed the claimant’s further appeal, substituting a decision that the overpayment was not recoverable. The tribunal had erred in deciding that the overpayment was recoverable – in particular in not having regard to the fact that a substantial portion of the overpayment period was before the decision of the ESA tribunal, in not making a finding of fact about when the claimant actually became aware of the ESA tribunal decision, and in its approach to what constituted ‘official error’ (paragraphs 19–22). Regarding the latter, the judge approved the decision of Commissioner (as he then was) Williams in CH/943/2003 in holding that where an appeal tribunal finds a decision of the DWP or HMRC to have been wrong, that means that the original decision was an ‘official error’. The judge respectfully disapproved the contrary finding that had been made in CH/38/2008. It was the case that (applying regulation 100), as stated in CH/943/2003, the claimant could still have been found to have contributed to the official error, or to reasonably have been expected to have realised that his HB was being overpaid, so removing his defence against recovery of the overpayment. However, there was nothing in the present case to suggest that either of those applied (paragraphs 22–26).

On the facts of the case, the judge found that the claimant was not aware of the decision of his ESA tribunal until 25 October 2012, so could not have realised the overpayment was occurring before then. On the balance of probabilities, he would not have received the letter of that date until early the following week, and although he did not notify the local authority about it, he could not have done so to allow the authority to change his award before 4 November 2012. The result was that the entire overpayment in the period 3 November 2011 to 4 November 2012 was caused by official error and was not recoverable (paragraphs 31–34).

Summary

The claimant’s appeal concerned whether he was working for 30 hours a week for working tax credit (WTC). He had supplied evidence of this (receipts and table of hours worked) to HMRC. However, the HMRC response to the appeal to the First-tier Tribunal did not include that evidence or indeed (as subsequently conceded by HMRC to the Upper Tribunal) any documents relevant to the case. The tribunal proceeded on the assumption that claimant had not supplied the evidence, or enough evidence, when he claimed, and dismissed his appeal.

Judge Wikeley allowed the claimant’s further appeal and, with reference to the evidence now made available to him, substituted a decision that the claimant was entitled to WTC. There had been a breach of natural justice in that HMRC had failed to fulfil its obligation (under regulation 24(4)(b) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 No.2685) to provide the tribunal with copies of all documents relevant to the case, and the tribunal had been ‘erroneously lured into deciding the case on the basis that the claimant had allegedly failed to respond adequately to a letter sent to him by HMRC’. In fact, the claimant did not have the evidence as he had sent it to HMRC, and the letter sent by HMRC to the claimant had been sent not just after the original decision but after he had lodged his appeal. Judge Wikeley commented: ‘this is the stuff of Kafka’ (paragraphs 6-8).

In concluding comments, the judge reported that the HMRC submission to him on what had gone wrong included that its approach did not reflect the HMRC approach, in place since May 2014, to provide full details and relevant documents in responses to appeals. The judge said that left unclear why the pre-May 2014 approach was not compliant with the rules, what triggered the change and how that was affected. It also ‘remains to be seen’ whether the HMRC rule-compliant approach is reflected in further cases before the Upper Tribunal (paragraphs 16–18).

Note: Judge Wikeley has made a very similar decision about the same problem, this time concerning a termination of a tax credit award, in JR v HMRC (TC) [2015] UKUT 192 (AAC). There, he commented: ‘This is not the first time that the Upper Tribunal has had cause to make adverse comment on the standard of HMRC appeals responses filed with the First-tier Tribunal. The simple fact is that, as regards this aspect of its work, if HMRC were an educational establishment it would now be in special measures.’

Summary

The claimant’s husband died, and the funeral was held in June 2013. She completed a claim form for a funeral expenses payment from the social fund and said that she gave that to her jobcentre in September 2013, on a date that was within the three-month standard time limit for a claim, although she forgot to sign it. However, the claim form was not received at the DWP office responsible for processing the claim until October 2013. It was returned to her as ‘invalid’ for signing on 10 October, and the signed form was received on 16 October. However, the DWP then refused the claim on the basis that its receipt in October 2013 (ie, even the unsigned form) was outside the three-month time limit. The claimant’s eventual appeal was allowed by the First-tier Tribunal, who held that the date of claim was the date she gave the form to the jobcentre. The Secretary of State appealed, arguing that the claim was out of time as not received until October.

Judge Mitchell refused the appeal, holding that the tribunal had not erred in law. The claim, though initially defective, was received by the DWP inside the three-month time limit when it was given to the jobcentre, and the corrected claim was received within a month of the claim being advised of the defect, meaning it was treated as properly made in the first instance – ie, when it was received at the jobcentre (paragraph 41). The Secretary of State’s argument that the tribunal should have given him time to make representations about the relevance of date stamps on documents was rejected as he had chosen to present no evidence at all to the tribunal about arrangements for receipt of post in jobcentres, or of documents delivered in person to jobcentres or onward transfer of claim forms to benefit processing centres. In those circumstances, the tribunal was entitled to accept the claimant’s evidence about what had happened (paragraphs 36–37).

Under regulation 4(6)(b) of the Social Security (Claims and Payments) Regulations 1987, which is the relevant rule for a funeral expenses payment, the claimant must ‘deliver or send the claim to an appropriate office’. An ‘appropriate office’ is defined at regulation 2(1) as ‘an office of the Department for Work and Pensions’, including any postal address specified for that purpose. The jobcentre was an ‘appropriate office’ (paragraph 41(a)). Defective claims are dealt with under regulation 4(7). This applies where a claim is ‘defective at the date it is received at an appropriate office’. If a properly completed form is received within a month of the date on which the claimant is first advised of the defect, the claim is regarded as properly made ‘in the first instance’. The claimant satisfied that and so the date of claim was the date it was made ‘in the first instance’ – ie, at the jobcentre in September (paragraph 40(d) and (e)).