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Summary

In this judicial review decision from the Upper Tribunal, it is held that the work capability assessment process places claimants with mental health problems at a substantial disadvantage, by reason of the failure of that process to obtain further medical evidence at an early stage. The Secretary of State was under an obligation to make 'reasonable adjustments' under section 20(3) of the Equality Act 2010 to remedy that. However, the decision does not require the DWP to seek further medical evidence in every case. Instead, it directs the DWP to investigate how to implement changes so that decision makers are required to consider the need for further medical evidence in mental health cases and justify a decision not to seek further evidence.

It was argued for the claimants that under section 20(3) of the Equality Act, to prevent substantial disadvantage to claimants with mental health problems, the Secretary of State was obliged to seek further medical evidence at an early stage in the work capability assessment in every case in which the claimant had a mental health problem. The Secretary of State argued that he was not so obliged. It was accepted that under current practice the seeking of further medical evidence was made only in a small number of cases (eg, where support group membership may be established by further evidence, where there was an appointee or where there was evidence of attempted suicide or self-harm - paragraph 50). The Secretary of State pointed to safeguards for claimants with mental health problems, such as ensuring failure to return the ESAS0 questionnaire in mental health cases was referred first to a health care professional rather than direct to a decision maker (paragraph 37), and ensuring that where a claimant with a mental health problems fails to attend a medical, the decision maker will attempt to contact her/him by telephone and if appropriate arrange a home visit before making a decision (paragraph 45).

For further medical evidence, however, it seemed to the Upper Tribunal that the Secretary of State was maintaining his position that present practice did not require 'reasonable adjustments' and that such evidence was requested where appropriate. However, he accepted the recommendation of Professor Malcolm Harrington in his third report on the work capability assessment that 'decision-makers should actively consider the need to seek further medical evidence in every claimant's case. The final decision must be justified where this is not sought'. That was different from a requirement always to seek further medical evidence in every case, but did require a decision not to seek it to be justified. Nevertheless, the Upper Tribunal considered that what the DWP was doing abou1 that 'falls well short' of investigating and assessing the recommendation regarding claimants with mental health problems (paragraphs 66-81).

In the Upper Tribunal, Judges Charles, Jacobs and Lane held that the duty under section 20(3) was a generic test, and that on that basis the present practice resulted in a significant number of claimants with mental health problems being placed at a 'substantial disadvantage' and/or suffering an 'unreasonably adverse experience'. However, it was not reasonable to expect as a remedy that the Secretary of State seek further medical evidence in every case. The Upper Tribunal considered that instead an assessment ana trial along the lines of the recommendation of Professor Harrington was most appropriate (paragraph 157). At present there was not sufficient evidence to enable the Upper Tribunal to determine what changes in the work capability assessment process would be reasonable to avoid the substantial disadvantage, and so the Secretary of State was directed to take 'defined steps, with a defined period' to investigate and assess changes in practice regarding claimants with mental health problems (paragraph D of the Index and Overview to the decision).

Note: The Secretary of State intends to appeal

Summary

The claimant was sent a decision in a letter headed 'Notice of Overpayment' presenting a 'decision' that she had been overpaid IS and had to pay it back. The reason for the overpayment was money in an undisclosed bank account. The claimant appealed, arguing that she had no knowledge of the money. The First-tier Tribunal dismissed the appeal.

Judge Fordham QC allowed the claimant's further appeal, and substituted a decision that the allegedly overpaid IS was not recoverable because there had been a valid supersession of the claimant's award - ie, so as to bring her entitlement to an end. However, that was not to prejudice the Secretary of State's ability to take further steps to comply with that so as to recover the alleged overpayment, or the claimant's ability to make a fresh appeal about that.

The reason the overpayment was not recoverable was that the judge considered in this case there had been no valid supersession, so that the main overpayment rule at section 71 of the Social Security Administration Act 1992 was not complied with. Specifically, the requirement at subsection (5A) that the award of benefit was changed on appeal, revision or supersession was not met 0n effect, that usually requires a supersession and that was certainly so in the present case). The judge held that for recovery to be lawful there had to have been not only a 'recoverability' decision but also an 'entitlement' decision - ie, one changing the claimant's entitlement. That required that the Secretary of State 'must have notified the entitlement decision' and that should be done 'before the recoverability decision' (paragraphs 4-6). In so holding, the judge commented on the decision of the Northern Ireland Court of Appeal in Hamilton v Department for Social Development [2010] NICA 46. That held that it was possible for there to be a 'two pronged' decision or 'simultaneous dual notification' in which the entitlement decision and the recoverability decision were notified in the same decision. The judge confessed to doubts as to the correctness of that (paragraph 13), but held that, insofar as a 'two pronged decision' can be sufficient, 'the notification would need to be clear' - ie, in communicating two decisions both of which carried the right of appeal (paragraph 14). In the present case, the letter sent to the claimant did not do that: it was in the singular (speaking of a 'decision'), referred to itself as an 'overpayment decision' and did not cite the law involved in a supersession decision (paragraph 16).

Comment from CPAG

This decision, in an appeal supported before the Upper Tribunal by the Secretary of State, further clarifies that the claimant must be aware both that her/his entitlement has been changed and that the subsequent overpayment is considered to be recoverable, and of her/his Tight of appeal against both decisions. That is best done by separate notification; although the decision demurs from holding that the 'two pronged' approach described in Hamilton is actually wrong, as long as the separate decisions are clear. Under Welfare Reform Act 2012 changes, overpayments of universal credit, jobseeker's allowance and employment and support allowance since 29 April are all recoverable, but there must still have been an alteration of entitlement - ie, usually on supersession.

Summary

The claimant had been out of hospital following an operation for around three weeks when she was assessed under the work capability assessment. Although she was treated as having limited capability for work on the basis of recovery from in-patient treatment, she was not assessed as having limited capability for work-related activity - ie, she was not put in the support group. The claimant appealed against that as well as a number of aspects of the decision. The First-tier Tribunal dismissed her appeal, saying in the decision that it was satisfied that the claimant did not meet any of the relevant descriptors in the test for work-related activity.

Judge Wright allowed the claimant's further appeal and remitted the case for rehearing by a new tribunal. The main error in the tribunal's decision was the failure adequately to explain why it considered that (given that she was only recently out of hospital) there was no 'substantial risk' to her health or that of another person, as referred to in regulation 35(2)(b) of the Employment and Support Allowance Regulations 2008, SI No. 794 (paragraph 12). A related but equally important error was that the tribunal had failed to identify, as required by the decision of Judge Jacobs in AH v SSWP [2013] UKUT 118 (AAC), the 'range or type of work-related activity' that the claimant was capable of performing and might be expected to undertake (paragraph 13). Judge Wright endorsed AH v SSWP in this regard.

The tribunal was hampered in that task by the failure of the Secretary of State to provide this information. For Judge Wright, the failure by the Secretary of State to put this information before the tribunal 'was a mistake and a serious breach of his duties' to the tribunal (paragraph 15). The claimant had expressly raised as a ground of appeal whether she came within regulation 35(2)(b) (ie, whether the substantial risk provision applied to her), and the Secretary of State had accepted that this was an issue raised by the appeal. In those circumstances, the Secretary of State was obliged under rule 24(2)(e) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, SI No.2685 to say whether he opposed the claimant on this point and, if so, state any grounds for that opposition not already in documents before the tribunal. His failure to do this was 'a serious breach' of his obligations under the rules. He should have set out the range or type of work-related activity the claimant was capable of performing and might be expected to undertake and explain why there would be no substantial risk to the claimant's or another person's health were she not found to have limited capability for work-related activity (paragraphs 17-20).

Summary

An overpayment of HB arose because the claimant left the property. He did not notify the local authority of that. The HB had been paid direct to the landlord. The local authority decided that the overpayment was recoverable both from the claimant and the landlord. The landlords appealed, arguing that they were unaware that the claimant had left, and that consequently the overpayment was not also recoverable from them. The First-tier Tribunal allowed the landlords' appeal.

Judge Rowland rejected the further appeal of the local authority, holding that on the facts as found by the tribunal, the decision was not wrong in law. The local authority's attempt to argue about the facts found by the tribunal was misplaced: appeals to the Upper Tribunal could be founded only upon errors of law, not upon attempts to reargue the factual issues in the case (paragraphs 8-14). The local authority also argued that the tribunal had misapplied regulation 82 of the Housing Benefit (Persons who have Attained the Qualifying Age for State Pension Credit) Regulations 2006, SI No.214. Firstly, it was argued that the tribunal had erred in that exemption from recovery for landlords was provided for only in subparagraph (1), whereas the tribunal had exempted them under subparagraph (2)(b). That subparagraph provides that where an overpayment arose due to misrepresentation or failure to disclose a material fact, it is 'only' recoverable from 'any' person who misrepresented or failed to disclose. But that, held the judge, would be to construe the law in a way already rejected in R(H) 6/06 (paragraph 16). The judge accepted that on the facts found by the tribunal, regulation 82(2)(b) did apply in this case (paragraph 17).

The local authority alternatively argued that subparagraph (2) should be read in such a way that a landlord could be regarded as having contributed to the overpayment via negligently not checking whether the claimant was still resident. That, held the judge, was not permissible, as it would involve 'considerable violence' to the language of the subparagraph, would contradict the natural construction given to it in (for example) MP v London Borough of Greenwich (HB) [2012] UKUT 88 (AAC) and, in any case, it was not clear how such a reading could work (paragraph 23). Nor was there any basis for holding that the landlords had in fact failed to disclose the fact that the claimant had left, as it was found that they did not know that, and in law a person cannot fail to disclose something that they do not know, and there was no duty on a landlord to take steps to discover facts (paragraphs 25-29).

Summary

The claimant suffered from a heart condition called mitral stenosis, with associated pulmonary hypertension. She could walk over 100 metres in about 10 to 12 minutes before she had to stop due to breathlessness. She had been entitled to the high rate of the mobility component but this was not renewed on the renewal claim. Her appeal was dismissed by the First-tier Tribunal, who held that she failed to come within, as she had contended, regulation 12(1 )(a) of the Social Security (Disability Living Allowance) Regulations 1991, SI No.2890.

Judge Turnbull rejected the claimant's further appeal. It was accepted that she was not unable or virtually unable to walk and so did not come within subparagraphs (i) or (ii) of regulation 12(1 )(a). However, it was contended that she came within subparagraph (iii) on the basis that the 'exertion required to walk would constitute a danger to [her] life or would be likely to lead to a serious deterioration in [her] health'. Rejecting that, the judge held that 'the only sensible construction of limb (iii) is that it is implicit that the constraint on the claimant's walking imposed by the danger to life or health must be such as to render him unable or virtually unable to walk' (paragraph 17). On that approach, the claimant did not satisfy the test.

In so holding, he rejected alternative constructions to the effect that the danger is that which would occur were the claimant to walk what would be for a person of the claimant's age and sex normal distances at normal speeds (a construction which had been adopted in CDLA/3420/2005), or that the danger is that which would occur in such walking as the claimant could achieve without severe discomfort. Either of these constructions, held the judge, could lead to anomalies in which a claimant who could walk several hundred yards before experiencing severe discomfort could qualify, via subparagraph (iii), for the high rate of the mobility component (paragraphs 11-15).

Decision in brief

Entitlement can be restored from 18 October 2007 but not before - decisions removing entitlement before date of ECJ decision in Commission of the European Communities v European Parliament and Council of the European Union, Case C-299/05 [2007) ECR 1-8695 on 18 October 2007 cannot be revised for official error - decision of the ECJ a court decision and so excluded from definition of official error for purposes of revision - earlier (2001) decision in Jauch did not establish that CA and DLA care component were exportable - even if there had been official error, claimants were outside the absolute time limit for an appeal against a refusal to revise

Note from CPAG

In BD v SSWP (DLA) [2013] UKUT 0216 (AAC) (CDLA/2972/2011), the same judge held that if the decision removing entitlement could nevertheless be revised (eg, for something that was official error, such as an incorrect effective date), that 'opens the door' to a full consideration of the proper decision that should have given - ie, including that the CA/DLA care was exportable (paragraph 15). Appeals still need to have been made within the absolute time limit; however, there is no time limit for the Secretary of State deciding to carry out a revision for official error.

Decision in brief

Restriction of HRP to those in receipt of UK child benefit, in conjunction with presence/residence test for child benefit, acts a restriction on right of free movement in the EU and not objectively justified - on facts of present case Article 21 Treaty on Functioning of the European Union and EC Regulation 1408/71 requires Secretary of State to take account of claimant's child-raising period in Belgium as if that had been completed in UK and her pre-existing award of child benefit had continued

Summary

This decision rejects a challenge that the rules under which payment of DLA in hospital, including for disabled children, ceases after 28 days are in breach of the claimant's human rights under the European Convention on Human Rights ('the Convention').

The claimant was a severely disabled child aged three. He had to go into hospital and after he had been there for 84 days, payment of DLA ceased (under regulations 8, 10, 12A and 128 of the Social Security (Disability Living Allowance) Regulations 1991, SI No.2890). It being accepted that the decision under those provisions was correct, the cessation of payment was challenged on the grounds that the regulations were in breach of the claimant's human rights under the Convention, namely under a combination of Article 1 of Protocol 1 (protection of property) read with Article 14 (prohibition of discrimination), and under Article 8 (respect for family life).

Judge Ward rejected all those challenges. Regarding Article 14, applying the approach in R (RJM) v SSWP [2009] 1 AC 311, the judge accepted that the rules treated the claimant on the basis of his 'status' as a disabled person under 16 entitled to DLA who has to be an in-patient for more than 84 days, as compared with a similar person who does not need to be in hospital for that time (paragraphs 32-35).

So the Article was capable of application to the claimant. However, applying Humphreys v Revenue and Customs Commissioners [2012] UKSC 18; [2012] 1 WLR 1545, the judge held that the difference in treatment had an 'objective and reasonable justification'. The judge had reference to material from Hansard in which ministers explained the policy regarding cessation of payment in hospital, and held that it was based on a legitimate aim of securing economic well-being (paragraph 42). Also, the approach was proportionate to that aim. The judge said, 'I accept that it is permissible in this context for the legislature to draw "bright lines", so as to make distinctions between categories of persons on a relatively broad brush notwithstanding that this might lead to hardship in particular cases' (paragraph 44). The judge accepted the official rationale that patients' disability-related needs were met in hospital by the NHS, and held that even if he were wrong to accept that and that there were a small number of children whose needs in hospital were not fully met, 'that is merely one facet of how a bright line rule operates in practice' (paragraph 46).

The judge also rejected an argument that the claimant, as a very young child, was entitled to different treatment than older children in hospital (ie, more positive treatment), under the principle established in Thlimmenos v Greece (2001) 31 EHRR 15. The 'bright line' rule also dealt with this argument in this context, and in any case the judge was not convinced that the evidence showed that there was a significant difference between the position of very young and older children in this regard (paragraph 54). Finally, regarding Article 8, even given the evidence in this case of the significant extra pressure and difficulties on the family following the cessation of payment of DLA, the judge considered that, 'Family life did continue to be exercised albeit with additional difficulties... can it be said that the State, by failing to continue payment of DLA beyond 84 days, was failing to exhibit respect for that family life? In my view it cannot' (paragraph 58). In any event, any such failure was, in the judge's view, justified as 'no more than necessary' to achieve the aim of securing economic well-being and striking a fair balance between the rights of the individual and the public interest (paragraph 60).

Summary

The claimant was a Polish national with a child aged four. Her applications for child benefit and child tax credit were refused by HMRC. The child benefit was refused on the grounds that the claimant had not shown she was responsible for the child. She was asked to supply documents showing that the child was attending school and registered with a GP. This the claimant did; but as events subsequently showed, these were stored by HMRC in electronic files that related to her parallel appeal against the refusal of child tax credit, a case in which HMRC revised its decision to award tax credits. This information was not accessed by the child benefit section at HMRC, and the claimant's appeal proceeded to the First-tier Tribunal. The tribunal, unable to resolve the issues about the apparently (but not really) missing documentation, rejected the appeal, saying that it did not find the claimant a reliable witness.

Judge Wikeley allowed the claimant's further appeal, substituting a decision that the claimant was at all times responsible for her child, and so remitting the case to the child benefit office for entitlement to be determined afresh on that basis. The tribunal had erred in two ways, firstly by failing to focus properly on the real test, namely that of responsibility for a child for child benefit purposes. The relevant law there (at section 143(1 )(a) of the Social Security Contributions and Benefits Act 1992) was that usually this was shown by the claimant having the child 'living with' her/him. However, instead of looking at that, it wrongly treated the question as though it was 'purely one to do with the production of appropriate documentation (effectively an information requirement)... ' (paragraph 14). Secondly, the tribunal failed to exercise its inquisitorial function and make sufficient findings of fact. No questions were asked about the claimant's domestic arrangements or how the child was looked after. Also, the tax credits appeal was apparent on the notice of appeal, yet no questions were asked about that - which obviously would have assisted as it had already been settled in the claimant's favour. It was unrealistic to have left that to the claimant, as someone unrepresented and having to deal with an unfamiliar bureaucracy and legal system in a second language. The tribunal failed to ask the right questions (paragraph 15).

The judge commented that this was a case about, 'the right hand of Her Majesty's Revenue and Customs (the Child Benefit Office) not knowing what the left hand of HMRC (the Tax Credits Office) was doing. More worryingly, it is a case about the right hand not taking the very simple step of accessing highly relevant information held by the left hand (or at least held on a shared HMRC computer system)' (paragraph 1 ). Also, there was a need for the tribunal to 'take a reality check' (and step back from issues about information requirements) and explore whether there was any further evidence on the central question of whether the claimant was looking after the child (paragraph 20).

Summary

The claimant was a German national. She worked in the UK between 1985 and 2000, and had a daughter with a British national in 2000. The daughter acquired British nationality. Following breakdown of the relationship, the claimant returned to Germany in 2002 and worked there in 2003-06. In 2006 she came back to the UK, with her daughter, intending to live here, having an offer of employment in the UK. But circumstances prevented her from taking up the offer. She was unable to find suitable accommodation and in October 2006 was awarded jobseeker's allowance (JSA), before being diagnosed with breast cancer in December 2006 and claiming income support. Despite evidence that the job offer remained open, her claim was refused on the basis that she failed the right to reside test.

A three-judge panel of the Upper Tribunal (Judges Jacobs, Storey and White) upheld the claimant's appeal, holding that she did have the right to reside. This was on the basis that she was a worker under Article 39 of the EC Treaty (as applied at the relevant time). In particular, she had a right of free movement under paragraph 3(a) and (b) of Article 39 to 'accept offers of employment actually made' and to move freely for that purpose. The Upper Tribunal was satisfied that the claimant had received an offer of employment before leaving Germany and that at least one of the purposes of coming to the UK was to accept that offer (paragraph 31). It considered, on the 'exceptional' facts of this case, that she remained a worker at the time of her claim for income support, as circumstances had conspired to prevent her from being able to take up the offer of employment for a considerable period; but the offer had not been withdrawn, something which it considered significant (paragraph 42).

The Upper Tribunal rejected the arguments of the Secretary of State that the claim for JSA had brought her worker status to an end, and that allowing the claimant a right to reside would create a whole new class of right to reside. There was no 'mutual exclusivity' in holding a job offer and claiming JSA where there was a delay in taking the job up (paragraph 43). There will often be a short delay before taking up a job offer, but only very unusually would that not happen before the expiry of three months (paragraph 41 ). She was not a jobseeker for IS purposes (and so not excluded from entitlement), as she remained a person who had entered the UK as a person holding an offer of employment (paragraph 48). As to creating a whole new class of right to reside, the Upper Tribunal commented that all it was doing was to apply Article 39 to the unusual circumstances before it; usually someone coming to the UK would take up the offer within three months (or the offer would be withdrawn), and did not see its conclusions applying, 'other than in unusual circumstances analogous to those faced by the claimant in this case' (paragraph 61).

Summary

In this decision, an argument that the rule under which a disabled person can be entitled to HB on two homes, where the new property is being adapted, was in breach of human rights grounds as it excluded redecoration was rejected.

The claimant was seriously disabled, required kidney dialysis and needed accommodation in clean and good order to avoid infection. Because of that, he was unable to move into his new dwelling for a period of time even though he was liable for rent on it, as it had been left in a bad state and required redecoration. His application for HB on both his old home and his new home while it was being redecorated was rejected. The First-tier Tribunal rejected his appeal, in particular because in R(H) 4/07 there was binding caselaw to the effect that under the relevant rule (at regulation 7(8)(c)O) of the Housing Benefit Regulations 2006, SI No.213), the adaptation that was provided for related only to a change to the fabric or structure of the property, not to redecoration.

Judge Mesher rejected the claimant's further appeal. The tribunal was correct in applying R(H) 4/07 and (despite an understandable argument that excluding redecoration did not fully allow for all possible adaptations) there was insufficient reason to think that R(H) 4/07 was wrongly decided (paragraph 14). That left the submission that the regulation was in breach of the claimant's human rights under the European Convention on Human Rights. The judge rejected that. Any such argument had to be based on the contention that the rule was in breach of Article 14 of the Convention (prohibition of discrimination) taken with Article 1 of Protocol 1 (protection of property). HB was a possession for these purposes (paragraph 22). However, the judge doubted that the difference between how he was treated and how other disabled claimants who could come within the regulation ware treated amounted to a difference based on some 'other status' or 'personal characteristic', as required. The rule already made provision for disabled claimants (paragraph 23). Even if that were wrong, however, the judge considered any difference in treatment to be justified, as being neither 'manifestly without reasonable foundation' - which, applying his own decision in LH v SSWP (IB) [2012] UKUT 288 (AAC), the judge considered to be the correct test regarding benefits - nor an unfair or disproportionate response (paragraphs 26-29).

Summary

The claimant appealed against decisions that she was not entitled to jobseeker's allowance as she was living together as husband and wife with another person, and that there was a recoverable overpayment. A number of documents in the appeal papers had been redacted (eg, the fraud investigator's log had substantial passages redacted) and a witness statement was quoted from without the witness's name being given. The tribunal rejected the appeal.

Judge Sir Crispin Agnew of Lochnaw Bt QC allowed the claimant's further appeal and remitted the case to a new tribunal. The tribunal had erred in that it had allowed the Secretary of State to rely on the evidence of an anonymous witness, and it was not clear that special circumstances meant that was permissible. The tribunal had, therefore, breached the rules of natural justice and a right to a fair hearing under Article 6 of the European Convention on Human Rights (paragraph 5). Judge Agnew said: 'I am of the opinion that it is not lawful for the Secretary of State to rely on the evidence of an anonymous witness without the express consent of the tribunal, which should only be given in exceptional circumstances' (paragraph 9). Although hearsay evidence (eg, what a witness told the fraud investigator) is admissible, that will only be so if the person who made the statement is named. It is a fundamental principle of a fair hearing that a person is entitled to know the name of their accuser (paragraphs 10-11 ). Anonymity could be granted to a witness only in exceptional circumstances. The basic approach was that the witness's name should be revealed unless it can be shown that out of necessity the witness should be anonymous. In this case, the tribunal had relied on the evidence in anonymous form without giving any thought to the weight to be given to it. That in itself was an error of law (paragraphs 12-16).

Regarding redacted documents, it was not unlawful for the Secretary of State to supply documents for papers to be sent to the claimant that contained redactions. But in that case he should also provide unredacted copies of the documents in a sealed envelope to be available to the judge of the tribunal. It was then for the claimant's representative to object to the redaction or ask for information about what is redacted, and the tribunal judge will then decide whether to disclose the redactions (paragraphs 17-18). However, the Secretary of State 'should be careful about what is redacted and not use it as a matter of course. In the present case large tracts of the Fraud-Investigator's Observation Log are redacted and that immediately raised a concern [sic] about what is being excluded and whether or not it might be of value to the defence' (paragraph 19).