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Summary

This decision is another to address the question of the interpretation of words in Activity 1 (planning and following journeys) of the PIP assessment test, namely the reference to the claimant's ability to 'follow the route' of a journey. Although the decision is that of a single judge, it says the appeal concerned was 'identified as something of a test case' and a number of cases had been stayed behind it (paragraph 1 ).

In essence, Judge Ward had to decide whether the words 'follow the route' of a journey meant that the test was restricted to one of ability to navigate, with ability actually to begin the journey and personal interactions along the way left out of account (as held by Judge Jacobs in DA v SSWP [2015] UKUT 344 (AAC)), or also include a test of the claimant's ability to go out to follow the journey, taking account of psychological factors such as anxiety (as held by Judge Agnew in RC v SSWP [2015] UKUT 386 (AAC)). In the present decision, Judge Ward agreed with the approach of Judge Jacobs in DA - ie, that the test of ability to 'follow the route' of a journey 'focuses us upon the claimant's ability to navigate along pathways and is not concerned with the other possible problems that a claimant may have when being in the natural environment' (paragraphs 32-33).

The claimant in this case had anxiety and depression. She became nervous and anxious when out, and generally relied on friends and family to be with her in order to get about. However, she did not have any impairment on her ability to navigate when out. The First-tier Tribunal declined to award her 10 points under descriptor 1 (d) (cannot follow the route of an unfamiliar journey without another person, assistance dog or orientation aid).

It was argued for the claimant that the decision of Judge Agnew in RC should be preferred to that of Judge Jacobs in DA. But Judge Ward preferred the decision in DA, and held that although the tribunal had erred in making insufficient findings of fact, he could nevertheless remake the decision to the same effect, so that the claimant's appeal failed. He considered that the position of someone who because of 'overwhelming psychological distress' either cannot go out or cannot do it without prompting was covered in descriptors 1 (e) and (b). Therefore, he agreed with Judge Jacobs's linguistic analysis of the descriptors in Activity 1 , and suggested that the emphasis placed on the significance of the word 'cannot' by Judge Agnew was misplaced: 'Even if as a matter of general language, it may perhaps be argued to be possible - at a stretch - to say that a person who cannot get out of the door because of anxiety "cannot" "follow the route", that would be to approach the descriptor in a vacuum' (paragraphs 28-29).

Comment from CPAG

Although not a decision of a three-judge panel of the Upper Tribunal or of a higher court, this decision undoubtedly tips the balance of current caselaw authority in favour of the 'ability to navigate' approach taken in DA. It therefore makes the arguments in favour of the more generous approach in RC, set out in the article in Bulletin 249 (p5), more difficult, and further appeals against the application of RC even more likely. Tribunals, however, remain free to adopt whichever of these decisions of single Upper Tribunal judges they prefer.

Summary

This is the first UC decision from the Upper Tribunal.

The claimant stopped work in December 2014, and claimed UC on 6 January 2015. Earnings from the employment were paid to him on 16 January. An amount of £364.35 was taken into account for the purposes of his UC. The claimant disputed that on the basis that the money should not have been taken into account, as it was earnings in respect of a period before his claim for UC. The First-tier Tribunal rejected his appeal.

Judge Jacobs dismissed the claimant's further appeal, as the tribunal had not erred in law. There was no dispute that the money paid to the claimant counted as earned income, under regulation 52(a)(i) of the Universal Credit Regulations 2013 No.376 (paragraph 9). On a new claim, under section 5(1)(b) of the Welfare Reform Act 2012, income can be calculated on the assumption that an award will be made, allowing a UC assessment period to be fixed (paragraph 10). Finally, it was clear that the money was received during the assessment period, even if was earned earlier. Therefore, it counted as part of the claimant's earned income under regulation 54(1 ), and it did not matter that the employment from which it was derived had ceased to exist by the time of payment (paragraph 11 ). The claimant's appeal must therefore fail.

Summary

This decision of a three-judge panel of the Upper Tribunal was made to decide the extent of the duties of the First-tier Tribunal in an ESA appeal, where medical reports and previous decisions have not been provided to the tribunal, or where there may be such reports but the tribunal is unaware of them. In so deciding, the Upper Tribunal considered in particular the previous decision of Judge Wright in ST v SSWP (ESA) [2012] UKUT 469 (AAC) (Bulletin 238, p14).

The facts in the present case included that the claimant had been entitled to ESA since 2010, failed the work capability assessment in 2012 and had her appeal against that disallowed by the First-tier Tribunal. Before the Upper Tribunal, it emerged that the claimant had in fact appealed successfully against two previous failures of the work capability assessment, but that information (including the decisions made by the previous tribunals) were not before the tribunal that considered the challenge to the 2012 failure. It was submitted for the claimant that the tribunal had erred in proceeding without the previous decisions, as although the claimant had not specifically requested that, the tenor of her appeal letter and reference to additional medical evidence amounted to a submission that her condition had not changed since she was last awarded ESA and the tribunal was, therefore, obliged to seek the previous decisions.

Judges Mullan, Ward and Lunney held that the tribunal had not erred in law and, therefore, the claimant's further appeal did not succeed. Tribunals are not always under an obligation to have regard to previous medical reports or decisions and, on the facts of the present case, the previous decisions were not relevant. The judges agreed with Judge Wright in ST that the Secretary of State was under an obligation to provide 'relevant' evidence to the tribunal. They also agreed that could include previous medical reports and decisions (paragraphs 72-76). But that concerned the obligations to the tribunal of the Secretary of State; to the extent that ST held that a tribunal that proceeds without such evidence will always have erred in law, the judges disagreed (paragraph 78). The judges said: 'we emphasise that a First-tier Tribunal is entitled to call on whatever evidence it considers relevant. .. we can envisage a situation where a First-tier Tribunal considers that it has sufficient relevant evidence before it to determine the issues arising in the appeal without the requirement to call for evidence which is missing because the Secretary of State has failed in his duty to provide it' (paragraph 79).

The judges endorsed (paragraph 83) the approach taken by the Northern Ireland Commissioner in JC v Department for Social Development (IB) [2014] AACR 30 [2011] NI Com 177. There it was held that the requirement for the tribunal to consider evidence from previous assessments 'depends entirely on the relevance of the earlier assessments', but also that a tribunal is required to consider such evidence 'where an appellant asserts that there has been no change in his medical condition or disablement and that the evidence associated with previous assessments is relevant to that continuing medical condition' (paragraph 50 (vi) and (vii) of JC, quoted at paragraph 40). Where relevant reports may exist but the tribunal is simply unaware of them, the judges again endorsed the approach in JC that the tribunal should consider whether evidence from the previous adjudication history 'assists in the assessment of the claimant's overall capacity' (paragraph 85, quoting paragraph 52 of JC).

Comment from CPAG

This decision makes clear that, in general, it is for the tribunal to decide if it needs to have regard to previous medical reports or decisions. The Upper Tribunal was given evidence that, in the light of ST, decision makers making submissions to tribunals are told to include evidence from earlier assessments where there 'has been no clear change or the appellant says that their condition has not changed or has worsened'. Where the evidence nevertheless is not included in the papers, appellants and their representatives who want the tribunal to have regard to it should be as clear about the relevance of such evidence as possible. A tribunal that proceeds without such evidence may err, for example, by failing to ask itself the right questions or make relevant findings of fact.

Summary

The claimant had a brain tumour, epilepsy and a back problem, and had difficulties with tiredness, concentration and failing to finish tasks. However, he was scored no points under activity 13 of the work capability assessment – ie, for ‘initiating and completing personal action’ (which means ‘planning, organisation, problem solving, prioritisation or switching tasks)’. Upholding that, the First-tier Tribunal held that the claimant could perform actions such as brushing his teeth and washing for the majority of the time and was able to go out by himself and get to the shops.

Judge Jacobs held that the tribunal had erred in failing to explain what it made of the detailed arguments put for the claimant and leaving it unclear how it approached activity 13 (paragraph 42). However, that did not mean tribunal had necessarily erred in that approach, and a new tribunal would have to decide the matter again. It was ‘neither necessary nor appropriate to define “personal action”.’ They were ordinary words that had to be given their normal meaning (paragraph 23). But applying those involved consideration of the context of the legislation, which under section 8(1) of the Welfare Reform Act 2007 was to determine, ‘whether it is not reasonable to require [the claimant] to work’ (paragraphs 25–26).

Tribunals ‘must apply common sense in deciding what constitutes an action’ (paragraph 28). Actions undertaken merely out of habit were not to be considered as their performance does not demonstrate mental, cognitive or intellectual function (paragraph 30). Action must be ‘effective’, so that the purpose of carrying out and completing the action was achieved – eg, someone with obsessive compulsive disorder might carry out particular actions, but not so as to make them effective (paragraph 31). Personal action means ‘planning, organisation, problem solving prioritising or switching tasks’: here the word ‘or’ must be read conjunctively, as meaning ‘and’ (paragraph 33). Although only actions that involved all of those should be considered, it was not required to identify a particular action (eg, dressing) in which all those tasks could not be completed: it may be that one action illustrates inability to plan, whereas another (eg, cooking) showed inability to prioritise tasks (paragraphs 33–34). It is wrong to prejudice a claimant by considering only a limited lifestyle: ‘It may be that someone whose daily life is limited to the basic actions of survival and watching the television would have difficulties if required to undertake any action that was more complicated’ (paragraph 36). Splitting an action into its component parts could render the legislation redundant: bearing in mind the foregoing, tribunals were wrong to have treated cleaning teeth and washing as ‘separate and sequential’ personal actions (paragraphs 28 and 37 – the judge’s implication seems to be that although these are not distinct actions, they can be taken together as component parts of a of a personal action).

Summary

In this joined appeal one claimant (AT) was profoundly deaf but had no sight impairment, the other claimant (VC) had impaired vision but no hearing difficulty. The issue in both cases was the interpretation of activity 7 of the work capability assessment (understanding communication), and in particular whether a claimant must be unable to understand or have difficulty in understanding communication by both verbal and non-verbal means in order to satisfy the relevant descriptors, or whether inability/difficulty by only of those means is sufficient.

Judge Markus QC held that inability/ difficulty by only one of those means was sufficient, so that it was not required to have such problems with both verbal and non-verbal communication. The relevant legislation was set out in Schedules 2 and 3 of the Employment and Support Allowance Regulations 2008 No.794. Activity 7 of Schedule 2, concerning limited capability for work, was at issue in AT’s case; activity 7 of Schedule 3, concerning limited capability for work-related activity, was at issue in VC’s case. In both cases, the judge noted that while some previous caselaw had held that difficulty in either verbal or non-verbal communication was sufficient, doubt had been cast on that by Judge Turnbull in both CE/2942/2013 and CE/1539/2014 [it is not clear why neutral citation numbers are not cited here] (paragraphs 13–14). In the present decision, the judge also considered that the statutory wording was ambiguous as to the correct approach (paragraphs 36–42).

Given the ambiguity, the judge turned to the legislative history of the provisions, which could include both explanatory memoranda and exchanges between the DWP and the Social Security Advisory Committee, as an aid to interpretation. The materials submitted by the Secretary of State in the present cases were therefore admissible (paragraphs 43–45). Using those, the judge concluded that ‘it is clear from all the materials that the legislative intention since ESA was introduced has been that in order to qualify under a relevant descriptor a claimant need be impaired in either hearing or vision (but not both) or, as amended, in understanding either spoken or written communication (but not both)’ (paragraph 48). The judge then applied that principle to the claimants’ entitlement in both cases. However, regarding AT, the judge referred the case to a new tribunal, as there was a dispute concerning the claimant’s ability to lip read about which the tribunal had given inadequate reasons, and consequently it was not settled exactly which descriptor in activity 7 of Schedule 2 should apply (paragraphs 55–68).

Summary

The claimant had been in receipt of IS since 1998. Between August 2004 and August 2009 she worked for a taxi company, working variable weekly hours between zero and a peak of 54.25. In April 2010, the DWP carried out a supersession and terminated entitlement on the basis that the claimant had started remunerative work in 2004, and also decided that there was a recoverable overpayment for failure to disclose that change. The First-tier Tribunal dismissed the claimant’s appeal against both decisions.

Judge Ward allowed the claimant’s further appeal only to the extent that the tribunal had erred in the calculation of the recoverable overpayment. Regarding whether the claimant was in ‘remunerative work’ (and so not entitled to IS), the judge applied regulation 5 of the Income Support (General) Regulations 1987, SI No.1967. Under subparagraph (2)(b)(ii), where hours of work fluctuate and there is no recognisable cycle of work, the number of hours is determined either over the period of five weeks before the date of the supersession, or ‘such other length of time’ as may enable a more accurate assessment. On the facts of this case (which included that the claimant had not worked at all in the five weeks), the judge held that the most accurate approach was to carry out the calculation over the whole period leading up to the supersession (paragraph 21). The averaging process fell to be carried out simply including the weeks where there was a nil or small amount of work in the general calculation (paragraph 24). Applying regulation 5 over the whole period, the claimant worked an average of 20.88 hours a week, meaning that she was to be treated as engaged in remunerative work throughout the whole period (paragraph 25).

However, the overpayment was incorrectly calculated as being simply the whole amount of IS paid to the claimant since she started work. Under regulation 13(1)(b) of the Social Security (Payments on account, Overpayments and Recovery) Regulations 1988, SI No.664, deductions had to be made for any IS not payable under the original award but which ‘should have been determined to be payable’ on the basis of the claim had the claimant’s misrepresentation or non-disclosure been remedied. The judge held that that ‘directs one to entitlement on the basis that any misrepresentation or failure to disclose had been remedied before an award was made: in other words, that the claimant had accurately told the income support section, week by week, the hours that she had worked’ (paragraph 44). In that context, that would have resulted in regular supersessions, in which the five-week period referred to in regulation 5 would have applied. That would have meant that there would have been some five-week periods in which the claimant would have been working for less than 16 hours a week on average. In those periods, the claimant would not have been disentitled from IS, and her correct entitlement in those periods fell to be deducted from the overpayment (paragraphs 44–45).

Comment from CPAG

There is similar provision to regulation 5(2)(ii) at regulation 51(2)(b)(ii) of the Jobseeker’s Allowance Regulations 1996, so a similar approach is indicated regarding jobseeker's allowance.

Summary

The claimant’s appeal was against three decisions regarding overpayment of pension credit. The Secretary of State had supplied ‘a great deal’ of evidence and a ‘reasonably complete’ submission. However, the First-tier Tribunal judge twice issued directions requiring the Secretary of State to attend an oral hearing (ie, send a presenting officer) and warned that failure to do so may lead to exercise of powers under the tribunal procedure rules. The Secretary of State did not attend the oral hearing, and the tribunal judge allowed all the claimant’s appeals ‘without further ado’. The written reasons stated that the failure of the Secretary of State to attend prevented the tribunal from properly carrying out its function, that the tribunal ‘was not prepared to accept’ the evidence of the Secretary of State and had ‘disregarded’ the evidence of the Secretary of State.

Allowing the Secretary of State’s further appeal, Judge Lane remitted the appeal to a new tribunal. The tribunal had erred in failing to carry out a complete rehearing of the matter on the merits, failing to perform its inquisitorial function when hearing an appeal and failing to provide a fair hearing for both parties (paragraph 2). The First-tier Tribunal judge had ‘ample time’ to have given ‘meaningful directions’ to ensure an effective hearing; instead, however, the tribunal’s directions merely ‘fretted vaguely about unspecified possibilities that might or might not occur’ (paragraph 6).

Judge Lane reviewed some principles which the tribunal had failed properly to apply. As applied to social security appeals by R(IS) 17/04, the tribunal must carry out a complete reconsideration of the decision and perform an inquisitorial role. R(IS) 17/04 had involved some similar facts to the present appeal, but the tribunal had replicated the errors identified there (paragraphs 7–10). In ‘disregarding’ the Secretary of State’s evidence, the tribunal failed to provide the Secretary of State with a fair hearing. Insofar as the tribunal instead considered the evidence but ‘did not accept it’, the tribunal failed to give adequate reasons (paragraphs 14–15). The tribunal failed to state the exact rules in the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 No.2685 it relied upon. But if it had rule 8(8) in mind, which allows barring a respondent from participating in further proceedings, it had been established in SL v SSWP and KL-D [2014] UKUT 128 (AAC) that the bar was only on the respondent taking a further part; it did not permit the disregard of evidence already submitted and submissions made. The tribunal also failed to issue an appropriate warning of this and to explain how its actions complied with the overriding objective at rule 2 to deal with a case ‘fairly and justly’ (paragraphs 16–22). For all those reasons, it had also failed to exercise the discretion required to exclude evidence under rule 15 (paragraph 23).

Summary

The claimant was married and still living under the same roof as her husband, but was permanently separated from him. On the basis of a conversation with HMRC, she stopped claiming tax credits as a couple with him, and claimed instead as a single person. However, at a later stage HMRC decided that there was no entitlement to tax credits as a single person. The claimant appealed and in response to a letter from HMRC in December 2012 confirmed that she wished to continue with the appeal. The tribunal considered the appeal on the papers and upheld HMRC’s decision.

Judge Hemingway held that the tribunal erred by proceeding on the basis of ‘woefully inadequate documentation and a woefully inadequate submission which failed to indicate the decision making powers upon which the respondent [ie, HMRC] had sought to rely’ (paragraph 22). Detailing the inadequacies in the submission from HMRC, the judge observed that it made no reference ‘to any legislation at all’ (paragraph 8); that it ‘did not contain any documentation relating to the appellant’s single claim’ (paragraph 9); that it did not contain ‘any information about the previous tax credit claim history in relation to the appellant or her husband’ (paragraph 10); that it did not contain ‘any records of any telephone calls made by the appellant to HMRC’ (paragraph 11); that it did not contain ‘any copies of any documentary evidence which had triggered the review’; and, perhaps most concerning of all according to the judge, it claimed that the claimant had not responded to the HMRC letter of December 2012 when in fact she had done so (paragraph 13).

The judge concluded that in the circumstances, ‘and given the lack of any meaningful documentary evidence at all’, the tribunal should have adjourned for an oral hearing (paragraph 22). HMRC was simply unable to demonstrate that the original decision awarding tax credits for a single person was wrong without producing evidence: therefore, there was ‘simply no basis’ for the tribunal to find in HMRC’s favour (paragraph 23). On the basis of what evidence there was from the claimant, there was nothing to show that she accepted that she was not entitled as a single person. Taking all that together, the judge substituted a decision that there were no grounds for holding that the entitlement conditions as a single person were not satisfied (paragraph 23).

Summary

The claimant’s appeal was against a finding that she was not a single person and was in fact still living as a couple with her partner. The tribunal determined that the claimant’s account of her domestic circumstances was improbable, by comparing it to what the tribunal would have expected a reasonable person in the claimant’s situation to have done, and rejected her appeal.

Judge Markus QC allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred in its approach to assessing the claimant’s evidence. It was ‘generally inappropriate’ for a tribunal to appraise evidence by reference to what a reasonable person would have done, or what some other or hypothetical person would have done. Rather, the tribunal should consider what the individual in question is likely to have done. The tribunal erred in failing to consider whether the claimant’s account was true, rather than improbable; it should have assessed what was likely that she would have done, and asked her to provide an explanation of her actions and choices (paragraphs 9–10).

In so holding, the judge had (at paragraph 6) reference to HK v Secretary of State for the Home Department [2006] EWCA Civ 1037, which held that rejection of an account on grounds of implausibility must be one on ‘reasonably drawn inferences and not simply on conjecture or speculation’, and (at paragraph 7) to Gheisari v Secretary of State for the Home Department [2004] EWCA Civ 1854, which held that an account that is unlikely may nonetheless be true. The court also held that faced with an account considered improbable, the tribunal should go on to decide whether it is true

Comment from CPAG

This decision does not prohibit a tribunal from considering a claimant’s (or indeed any other evidence) to be improbable, or from going on to reject it. But it does hold that the context must be an assessment of what the individual claimant would have done, and decide whether her/his account is actually true or not.

Summary

The claimant was found to have been overpaid PC because he had failed to disclose his occupational pension. On appeal, the tribunal held that although, on the balance of probabilities, he had telephoned the DWP to tell them about that, it was not sufficiently clear that he had telephoned the correct office (ie, that dealing with his PC) and that, therefore, he had failed to disclose and the overpayment was recoverable from him.

Judge Bano allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred in giving inadequate reasons for holding that the office that the claimant had telephoned was not that dealing with the PC claim (paragraph 3).

The judge also cited R(SB) 6/85, in which it was held that for recovery of an overpayment it is for the Secretary of State to show on the balance of probabilities all the facts that are needed to justify recovery of an overpayment (paragraph 4). In the present decision, the judge added: ‘In an overpayment recoverability case based on a failure to disclose, the onus will be on the Secretary of State to establish a breach of duty consisting of a negative, that is, that the claimant has failed to comply with a duty to disclose under regulation 32(1A) or 32(1B) of the Claims and Payments Regulations… In the light of the onus of proof on the Secretary of State to satisfy the tribunal of all the facts needed to justify the recoverability decision, I accept the submission of the claimant’s representative that the tribunal failed to explain adequately why, on the balance of probabilities, the call made by the claimant was to the wrong office’ (paragraph 5).