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Decision in brief

Work capability assessment descriptor 4(c) ‘cannot transfer a light but bulky object such as an empty cardboard box’ – although may be achieved with one arm by wedging the object under the arm (KH v SSWP (ESA) [2014] UKUT 455) test still involves use of the upper body, and so ‘the effect on a back condition of picking up and moving a light, bulky object, using the one arm wedging technique, must be taken into account’

Summary

The claimant’s appeal to the First-tier Tribunal included an argument that she had problems with her neck and shoulders, and that the examining health care professional had failed to consider whether she could wash her back. The tribunal decided that Activity 4(f) ‘needs assistance to be able to wash her/his body between the shoulders and waist’ was not satisfied. That was because, said the tribunal, most people are unable to access their upper spinal region, and in the light of that points could not be scored for an inability to wash the upper back.

Judge Mitchell allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred by misdirecting itself as to the law. Although people without physical limitation are probably unable to access their upper spinal region, that is not the test, and the tribunal had gone wrong by not considering the key issue (paragraphs 1–2).

Activity 4 is about ability to ‘wash and bathe’ and descriptor (f) about ability to wash ‘between the shoulders and the waist’. ‘In my view’, said the judge, ‘people without a physical limitation are able to get sufficiently close to the upper spinal area to enable them to wash their upper back effectively without having to use an aid by, for example, rubbing a soapy sponge above that area and then rinsing off…that is why the majority of the population would score zero points’ (para 12(a)–(c)). The tribunal had failed to consider whether the claimant could wash her back using an aid or appliance and, if not, whether she needed assistance to wash her upper back. ‘By focussing on ability to reach the upper spinal area, rather than ability to wash the body between shoulders and waist, the Tribunal misconstrued descriptor 4(f)’ (paragraph 12(d)–(e)).

Summary

The claimant was in receipt of JSA with a current jobseeker’s agreement. He proposed variations to the agreement, which included elimination of all references to the steps he would take to find work and a statement that he was not obliged to give details of employers or websites that he had contacted or visited in order to maintain his claim. His employment adviser did not agree to the variation and made counter proposals, which the claimant did not agree to. The dispute was referred to a decision maker who issued a direction to the claimant to enter the agreement as varied by the employment officer. When the claimant did not do so within the prescribed time, his JSA was terminated. The First-tier Tribunal rejected his appeal.

Judge Lane held that although the tribunal had erred in one respect (treating the dispute as about availability for work rather than actively seeking work) that could not have affected the outcome of the appeal, and otherwise the tribunal had not erred and so the decision was to stand.

The claimant’s various arguments included that his existing jobseeker’s agreement was ‘perfectly reasonable’ and he had not admitted that it was unreasonable; that he had ‘good cause’ for not signing the varied agreement; that no one had explained why his proposals were unreasonable and that his existing agreement was a civil contract which, because it was reasonable, could not be terminated without his consent.

Rejecting all those arguments, the judge said that the claimant had himself started the variation process, and that once started the variation could legitimately be disputed and ultimately referred to the decision maker, all under section 10 of the Jobseekers Act 1995. The claimant had therefore ‘set in train a statutory procedure’ and could not necessarily stop it by unilateral action (paragraphs 8–9). Although the employment adviser, decision maker and tribunal had mistakenly treated the claimant’s proposals as about his availability for work, there ‘could be no real doubt’ that they were insufficient to show that he was actively seeking work. ‘That’, said the judge, ‘was fatal to the appellant’s case and no tribunal could reasonably have come to any other conclusion’ (paragraph 27). To have to explain why it was reasonable for the claimant to comply with (his own) proposals that were in fact considered inadequate would have been absurd (paragraph 30). The claimant’s referral to good cause was misplaced as that related to sanctions (paragraph 34). His argument about contracts was misplaced as a jobseeker’s agreement is not a civil contract (paragraph 38).

Comment from CPAG

Many of the findings here originate in what some may consider a somewhat unusual manoeuvre by the claimant. In simpler cases, where it is the employment officer who has proposed changes to the agreement that the claimant considers onerous, it remains that the claimant can object (under section 10(5)(b)) that it is not reasonable to expect her/him to have to comply.

Summary

The claimant was single and had learning difficulties and autism. He rented his home from a housing trust. The property had two upstairs bedrooms, and downstairs the living quarters included two living rooms. The claimant had help from an overnight support worker (funded by the local authority) who slept in the second upstairs bedroom. The downstairs living rooms were shared with a day-time support worker which allowed them to chat and share meals but still to have some space of their own. The house was rented with that arrangement in mind, although was described in the tenancy agreement as a ‘three-bedroom house’. The local authority imposed a reduction under the so-called ‘bedroom tax’ rules, deciding that the one of the downstairs ‘living rooms’ was suitable for use as a third bedroom, when the claimant needed only two bedrooms. However, the First-tier Tribunal allowed the claimant’s appeal, holding that, on the facts of the case, the alleged downstairs bedroom was never used as such or intended to be.

Judge Rowland allowed the Secretary of State’s appeal and substituted a decision that the house was a three-bedroom property and so a reduction under the bedroom tax, under regulation B13 of the Housing Benefit Regulations 2006 No.213, was to be applied. The tribunal erred in law in having regard to the ‘irrelevant fact of the claimant’s actual use of the room’ (paragraph 26). Applying the reasoning of the (later) decisions in Secretary of State for Work and Pensions v Nelson (HB) [2014] UKUT 525 (AAC); [2015] AACR 21 and in particular Secretary of State for Work and Pensions v City of Glasgow Council [2017] CSIH 35; [2017] AACR 38, the claimant’s actual use of the room was immaterial. However, the physical characteristics of the room and its relationship to the other rooms in the house were relevant considerations (paragraphs 27–28).

In the present case, the judge accepted that the room concerned would generally have been used as a parlour or dining room. However, the removal of the gas fire from the room had made its use as a bedroom more realistic. It also had access to a downstairs bathroom, had privacy and was plainly big enough to be used as a bedroom. Moreover, there was no practical requirement for it to be used as a dining room or parlour. So, ‘looking at the property objectively as it would be in its vacant state’, it appeared to the judge that it could be used either as a two-bedroom or a three-bedroom house. For the purposes of regulation B13, in a ‘borderline’ case like this, the landlord’s designation can be determinative, and he considered that in this case the designation as a three-bedroom property should be regarded as so (paragraphs 29–33).

Comment from CPAG

Note that although the claimant's actual use of the room is immaterial, the relationship of the room to the other rooms in the house is not. So, if a claimant does not use the room as a bedroom, where that is because of its relationship to other rooms in the house (eg, it is not sufficiently private or does not have reasonable access to a toilet), that may well be relevant.

Decision in brief

If the deceased husband was in fact domiciled in the United Kingdom at the time of his second marriage, he could not under the law of England and Wales have contracted a valid polygamous marriage abroad (section 11(d) Matrimonial Causes Act 1973) – in that case, the second marriage was not valid under English and Welsh law, and issue of whether that marriage could now be regarded as monogamous was immaterial – fact that the second wife had been granted settled immigration by the Home Office cannot be decisive regarding bereavement benefit entitlement

Decision in brief

If descriptor 2(e) (needs assistance to be able to manage a therapeutic source to take nutrition) applies, that assistance cannot also be taken into account for Activity 3 – CSPIP/386/2015 and AS v SSWP (PIP) [2017] UKUT 104; [2017] AACR 31 applied, although the point may be revisited by a three-judge panel of the Upper Tribunal in a future decision

Decision in brief

The decision notice and the statement of reasons should be capable of being read together so that it may be understood what the tribunal decided and why – CCR/3396/2000 and CIS/2345/2001 applied

Decision in brief

Concession by Secretary of State that lip reading is ‘not considered an acceptable way to interpret verbal communication’ – to be followed by new tribunal – it is ‘pointless to disagree with a Secretary of State who wishes to implement legislation in a way that is perhaps more generous to claimants than the legislation strictly allows’

Decision in brief

Tribunal erred in holding that actually being allocated a NINO is the only way to satisfy the NINO requirement – can also be satisfied (per section 13(1B)(b) Social Security Administration Act 1992) by supplying evidence or information so as to allow a NINO to be allocated – where regulation 9 of the Social Security (Crediting and Treatment of Contributions, and National Insurance Numbers) Regulations 2001 applies, if the evidential requirements there are not met, the applicant has not provided sufficient evidence or information – if they are met, the applicant has provided sufficient evidence or information, unless the DWP has disclosed additional criteria which must also be met for a NINO to be allocated

Decision in brief

Test regarding ‘social engagement’ for ESA, as set out in JC v SSWP (ESA) [2014] UKUT 352; [2015] AACR 6 is about a different test and does not apply – not required to consider ability to develop friendships

Note from CPAG

Permission has now been granted for appeal to the Court of Appeal.

Decision in brief

Raises concerns about observation of rules 2 and 24(2)(e) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (need for parties to be able to participate full and for responses to state grounds for opposing the appeal) – implications for appellant to be able to prepare his or case before a hearing

Note from CPAG

See also the article in Bulletin 264, p8.

Decision in brief

Descriptor will be satisfied if a claimant has a reasonable need to use incontinence pads (even on a precautionary basis) at might for the majority of the time, even if they are not in fact used by the claimant