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Summary

The claimant had requested an oral hearing of her appeal against a decision that she was not entitled to employment and support allowance as she failed the work capability assessment. She had been notified of the date of the hearing, but replied saying that she had a bad back, would not be able to attend and asking for a new hearing date to be fixed. The tribunal was given the request for the postponement but decided to proceed, and dismissed her appeal.

Judge Hemingway allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred in not adequately explaining its decision to proceed with the hearing. The tribunal said that it was satisfied that it was able to decide the matter without either party to the appeal being present and that it was fair and just to do so. Reference had been made by the tribunal to rules 2 and 31 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 No.2685. But Judge Hemingway held that amounted merely to a ‘bare reference to the rules’ without any reasoning as to why it had so decided. There was no indication of any ‘balancing act’ regarding competing arguments and, in particular, it was not clear whether the tribunal indeed accepted that the claimant was unfit to attend but decided it could decide the case fairly and justly anyway, or whether it disbelieved her or whether it was unable to reach a view on fitness (paragraph 9).

The judge appreciated that a tribunal in this position would not have much to go on. But it should at least consider if it is able to reach a view as to whether a claimant is likely to be unfit to attend as, if it can do that, it is likely to have ‘considerable relevance’ in assessing what is fair and just. There may be cases where a tribunal could properly proceed notwithstanding unfitness to attend, but it would be rare for that not to be important. The error in the present case was the failure to explain whether it had reached a view on the matter (paragraph 10).

Comment from CPAG

Arguably, where it is accepted that a claimant is too ill to attend a hearing but wishes for another date to be set, a tribunal would need to have particularly strong reasons for deciding to proceed, given the requirement at rule 2(2)(c) of the Tribunal Procedure Rules to ensure as far as practicable that ‘the parties are able to participate fully in the proceedings’.

Summary

The claimant had severe learning disability and autistic traits. She was unable to live on her own. When her carers moved in, the social work department agreed it would be better for managing the claimant’s condition if she had a separate lounge, and so what had been a downstairs bedroom was re-designated as a lounge. However, subsequently, the claimant was subject to a restriction under the ‘bedroom tax’ rules on the basis that the room was to be regarded as a ‘spare’ bedroom. The First-tier Tribunal allowed the claimant’s appeal, holding that it was ‘credible and reasonable’ that the claimant required her own living space because of her disability and was satisfied that the room had ceased to be a bedroom.

Judge Sir Crispin Agnew of Lochnaw Bt QC dismissed the further appeal of the Secretary of State. The tribunal had not erred in law. In his appeal, the Secretary of State cited the decision in SSWP v Nelson and Fife Council [2014] UKUT 525 (AAC) (the 'Nelson decision') as authority for the proposition that a claimant’s use of a room was irrelevant, and that what mattered was whether the room could be used as a bedroom, with the starting point being the landlord’s designation of the room, although that was not conclusive. 

However, in the present case, the judge pointed out that the Nelson decision actually said that the general test was whether the room could be used as a bedroom, and that further designation or choices by the occupant was ‘unlikely’ to be relevant, but that issues of designation could arise, for example, where the room had been converted into a bathroom or wet room (paragraphs 10–13). Therefore, the judge was of the opinion that ‘the Nelson decision goes no further than saying that normally the family designation and choice is not a relevant factor, but leaves open the question of whether or not there might be exceptional circumstances where re-designation might be appropriate’. On the facts of the present case, there was no reason why designation on professional advice for a mental health condition could not be such a circumstance. The judge also commented that if such capacity for re-designation was limited only to physical disablement, that would amount to unjustified discrimination – ie, against people with mental health conditions (paragraph 15).

Decision in brief

‘Scrutiny process’ involved certain claimants not required to attend a medical – decision that claimant had limited capability for work made on papers only – but the decisions did not involve the decision maker actually scoring the claimants under the descriptors regarding limited capability for work – this was in breach of the fundamental requirement to undertake such a scoring exercise in regulation 19(2) of the Employment and Support Allowance Regulations 2008 – result was decisions were invalid and of no legal effect – to extent that AC v SSWP (ESA) [2013] UKUT 229 (AAC) decided otherwise, that is not followed (paragraphs 4, 91 and 104) – First-tier Tribunal was capable of deciding that the decision was of no legal effect and must be set aside (claimants having appealed on basis of not having been put in the support group) (paragraphs 5 and 92)

Comment from CPAG

If the Secretary of State accepts Judge Wright’s decision, then presumably he must remake such scrutiny decisions made before 4 December 2013 so as to provide a score.

Decision in brief

Meaning of being ‘in receipt of’ a qualifying benefit – claimant incorrectly paid incapacity benefit – correct interpretation of regulation 9(1) and Case A of the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002 is simply whether the claimant had been ‘in receipt of’ a qualifying benefit – therefore, in this context, the fact that payment was made incorrectly was immaterial – caselaw on meaning of ‘payable’, and interpretation of Case C requiring a qualifying benefit to be ‘payable’ distinguishable as about different wording

Summary

The claimant was a German national who came to the UK in December 2011 to be nearer her daughter. The daughter was a Canadian national who was working in the UK, who was married to ‘Mr H’, a UK national and self-employed in the UK, but who had also, on three separate occasions, done some unpaid work in Greece and Germany, as a plumber and heating engineer for the International Bible Students Association. The claimant was financially dependent on her daughter and son-in-law (Mr H). The claimant’s right to reside for PC purposes was mainly reliant on an argument that she was the family member of a UK national who could be treated as if he were a European Economic Area (EEA) national, on the basis that he was ‘residing in a EEA state as a worker or self-employed person’ before returning to the UK. If that applied, then the claimant had a right to reside under regulation 9(2)(a)of the Immigration (European Economic Area) Regulations 2006 No.1003. The argument was rejected by the First-tier Tribunal.

Judge Ward rejected the claimant’s further appeal, holding that the tribunal had not materially erred in law. On the facts of the case, and with reference to the decision of the European Court of Justice (EUECJ) in Case C-456/12 O and B v Minister voor Immigratie, Integratie en Asiel (12 March 2014), he considered that the family member (Mr H) had not been ‘resident’ in Greece or Germany. He also considered that the tribunal had not erred in considering Mr H not to have been a ‘worker’ at the relevant times. Although it was not absolutely necessary to have been paid money, the fact that he was not in any sense better off as a result of performing the services, the brevity of the work and the fact that Mr H saw himself as a volunteer all suggested that his arrangements were not such as to make him a ‘worker’ (paragraphs 44–49). The judge also held that given that Mr H was a UK national, he did not count as an EEA national regarding his work in the UK, that there was no ‘lacuna’ in the law which required filling in this case, and that to accept that the denial of a right to reside to the claimant was somehow disproportionate would be ‘a large scale tearing-up’ of the relevant limitations in the law (paragraphs 54– 62). Although it was perfectly understandable that the claimant wished to be near her family, ‘that is not an unusual situation and it is not one for which the legislator has seen fit to provide’ (paragraph 62).

On the question of whether Mr H had been ‘resident’ in Greece or Germany, the facts included that he had only been in Greece or Germany for two or four weeks at a time, and was unpaid. In O and B, the EUECJ had looked at principles governing claims by ‘third-country’ nationals based on being family members of an European Union national who had exercised rights of freedom of movement and then sought to enforce her/his rights against her/his own member state. Although in the present case the claimant was German and so not a third-country national, O and B was relevant in that it held that such rights only arose where the ‘residence’ in another Member State had been ‘sufficiently genuine so as to enable the citizen to create or strengthen family life in that member state’ (paragraph 26). In the present case, the judge did not consider that Mr H’s brief periods in Germany and Greece ‘amounted to “residence” at all’ (paragraph 27). The judge rejected an argument that merely being present in the member state was sufficient, although it was not necessary to go as far as requiring ‘habitual residence’ (paragraph 32); rather, what was required was ‘a judgement of fact and degree as to whether the individual has lived in the EEA State in question with sufficient permanence, continuity, or at least some expectation of continuity, to warrant the conclusion that he “resided” there within the ordinary meaning of that word’ (paragraph 40).

Summary

The claimant was at the relevant time a child aged 7. He had learning difficulties, speech and communication problems and hyper-extensible knees and elbows. His claim for DLA (made by his mother) was refused. On appeal to the First-tier Tribunal he argued that he was entitled to the care component of at least the lower rate, and to the mobility component at the lower rate. In refusing the appeal, the tribunal held that he did not need substantially more care than that required by a child of his age who did not have a disability and, regarding the mobility component, that a child of his age would always require attention from a supervising parent or adult when crossing the road.

Judge Markus QC allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred firstly in holding that as the claimant was not dyslexic, the decision in KM v SSWP (DLA) [2013] UKUT 159 (AAC); [2014] AACR 2 (Bulletin 237, p12) did not apply. The tribunal was wrong to do this, held the judge, as ‘it is clear that KM is not limited to cases of dyslexia but applies to other cases of learning disability’ (paragraph 16). Further, KM gave guidance as to the correct approach to decision making for the care component rules (including for children) under section 72(1) of the Social Security Contributions and Benefits Act 1992. The tribunal had therefore not approached its task correctly. It did not identify what functional disability or impairment the claimant had, did not determine what bodily function that related to [KM refers to ‘the bodily function of the brain’], what assistance he required for that (including when at school), whether that counted as ‘attention’ and if so whether it was required for a significant portion of the day or frequently throughout the day (paragraph 18).

Further, the tribunal had erred in the approach to the extra test for children at section 72(1A)(b). That required that for a child there were either (under subsection (i)) care needs ‘substantially in excess of the normal requirements’ of a child of the same age, or (under subsection (ii)) substantial care needs ‘which younger persons in normal physical or mental health may also have’ but which persons of the claimant’s age in normal physical or mental health would not have. Endorsing comments in R(DLA) 1/05, the judge held that the tests were different in that subparagraph (ii) might apply where a claimant has substantial requirements which were ‘different to those of normally healthy children’, even though subparagraph (i) did not apply because the claimant’s requirements ‘are not substantially in excess of the requirements of those other children’ (paragraph 30). Applying that principle to a child claimant with developmental delay who needed help with reading, the judge said that ‘all young children require assistance with reading’, but ‘a child with developmental delay may require help of a type which is required by younger children in normal health’ but which was substantial and ‘different from the help required by children of the same age but is not substantially in excess of that help’. There might be cases therefore in which subparagraph (ii) applied to a child, even though subparagraph (i) did not (paragraphs 32–33). Similarly, the tribunal erred regarding the mobility component as KM held that a generally similar fact finding approach was required there. The extra test for children was at section 73(4A). The assistance required by the claimant may not have been limited to guidance in crossing the road. Also, the tribunal should then have identified the nature and degree of any guidance or supervision that was required, and whether it was ‘substantially more’ than that required by children of the same age in normal health, or whether such children ‘would not require such guidance or supervision’ (paragraphs 42–43).

See also our article on Universal credit, mental health and reasonable adjustments

Summary

The claimant was treated as possessing £7,000 of capital under the ‘notional capital’ rule. The circumstances were that the £7,000 had been withdrawn from the claimant’s account on the same day as a visit from a DWP customer compliance officer. In her appeal to the First-tier Tribunal, the claimant said that the money was used to repay her ex-partner money that she had borrowed from him, and that he had asked for the money to be returned because he had debts and his working hours had been reduced. She supplied evidence of this including a letter from her ex-partner. She said it was mere coincidence that the money had been withdrawn on the same day as the visit from the customer compliance officer. The tribunal dismissed the appeal, holding that the customer compliance officer had explained to the claimant the effect of the capital rules, and accepting the Secretary of State’s argument that the timing showed the claimant had deliberately deprived herself of the money in order to get more IS.

Judge Rowland allowed the claimant’s further appeal and substituted a decision that the claimant was not to be treated as possessing the £7,000 under the notional capital rule. On the facts and applying the relevant law, the judge considered that although the tribunal was entitled to find that the compliance officer’s visit precipitated the repayment of the debt, ‘the debt had to be paid and she had no legitimate choice but to pay it immediately’ (paragraph 16, emphasis in original). The judge pointed out that the claimant had provided the type of written evidence that had been held necessary in R(SB) 12/91, and the customer compliance officer had seen evidence of the building work that the claimant had said was financed by the loan. But it was worth emphasising that tribunals may need to investigate the facts in the thorough manner suggested in R(SB) 12/91, including (in cases involving repayment of a loan to a friend or relative) expecting the friend or relative to provide written and documentary evidence (paragraph 18).

The relevant law in this case was the notional capital rule at regulation 51 of the Income Support Regulations 1987 No.1967. In applying that, it was well established that the purpose of securing entitlement to a benefit or increasing the amount of that benefit need not be the dominant purpose behind the deprivation. In R(SB) 12/91, it was held that a person repaying debts that s/he was obliged to pay was not caught by the notional capital rule, but only where the relevant debt was ‘immediately payable’ (R(SB) 12/91 paragraphs 13 and 14, quoted at paragraph 8). In Jones v Secretary of State for Work and Pensions [2003] EWCA Civ 964, the Court of Appeal held that the question of why a person had deprived her/himself of capital was a question of fact, but that ‘if the payment is made in satisfaction of a debt, the fact-finder will not usually conclude’ that the purpose was to secure entitlement to benefit (Jones paragraph 52, cited at paragraph 10). In the present decision, Judge Rowland noted that the Court in Jones also made it clear that the fact that a debt was not immediately repayable did not automatically mean that the claimant was caught by the notional capital rule (paragraph 12). As a matter of ‘legal theory’, it was also true that even where the debt was immediately repayable the question of the purpose of the deprivation was still a matter of fact, but (noted Judge Rowland) the Court of Appeal did not suggest there was ‘any circumstance in which it would be reasonable to say that a person who had no choice but to repay a debt’ was caught by the notional capital rule (paragraph 13).

Summary

The claimant was a Latvian national who came to the UK in 2008. She did agency work from 2009, which initially was not registered under the worker registration scheme (WRS), following the extension of the application of the WRS for the period 1 May 2009 to 30 April 2011. Her work was eventually registered in August 2010 (it was agreed before the judge that it is not possible for that to have had retrospective effect). Her eventual claim for PC in 2012 was refused on the basis that she did not have the right to reside. The First-tier Tribunal said it did not have jurisdiction to consider her appeal, which was based on an argument that the extension of the WRS scheme in 2009 to 2011 was unlawful.

Judge Ward allowed the claimant’s further appeal and substituted a decision that the claimant was entitled to housing benefit. She had a right to reside on the basis that she was a ‘worker’ who had ‘ceased activity’ on reaching pension age or taking early retirement, having ‘resided’ the UK for at least three years, as provided for in regulations 5 and 15 of the Immigration (European Economic Area) Regulations 2006 No.1003. Firstly, the extension made to the WRS scheme in 2009 to 2011 was unlawful – so that when working in that period the claimant counted as a worker. The extension was not automatically unlawful, as the Treaty of Accession to the European Union of Latvia and the other so-called ‘A8’ states allowed for that ‘in case of serious disturbance’ of the labour market (paragraph 69). But the judge agreed that the restrictions on the labour market involved in such an extension must tackle the disturbance ‘proportionately’ (paragraphs 76–77), and considering the available evidence did not consider that test was met when the extension was made in 2009 (paragraphs 104–119).

Also, the three years’ ‘residence’ test in regulation 5 was, in the judge’s view, a test of ‘actual’ residence, not of ‘lawful’ residence (ie, as applies to the test for permanent right to reside after five years’ residence). It, therefore, did not actually matter whether the claimant had a right to reside in those years or not. In so holding, the judge declined to follow the decision to the contrary effect of Judge Jacobs in ID v SSWP (IS) [2011] UKUT 401 (AAC). But even if that was wrong, so that the three years’ residence had to be ‘lawful’, the judge considered that on the facts of the case in the relevant times the claimant in fact had a right to reside either as a worker (as above) or as a jobseeker, including having a ‘genuine chance of being engaged’ while a jobseeker (paragraphs 122–135).

Note: this decision was appealed to the Court of Appeal and subsequently to the Supreme Court, see our caselaw summaries Secretary of State for Work and Pensions v Gubeladze [2017] EWCA Civ 1751 and Secretary of State for Work and Pensions v Gubeladze [2019] UKSC 31.

Summary

The claimant had various health conditions including significant visual impairment. He failed the work capability assessment, having been scored nil points. The First-tier Tribunal allowed him nine points under Activity 8(c). In his further appeal to the Upper Tribunal, the claimant argued that he should be scored 15 points under Activity 8(b) – ie, ‘cannot safely complete a potentially hazardous task such as crossing the road, without being accompanied by another person, due to sensory impairment’. The tribunal had not applied that descriptor, based on its conclusions from the claimant’s evidence that he was able to cross the road using a zebra crossing but would not go somewhere unfamiliar.

Judge Wikeley allowed the claimant’s appeal and remitted the case to a new tribunal for more findings of fact. The tribunal had erred in two respects. Firstly, it had failed to make findings about the variability of the claimant’s problems with vision under different lighting conditions (bearing in mind the overall test of ability to perform the specified activity with ‘reasonable regularity’), an issue which was indicated in the evidence before the tribunal. Secondly, the tribunal had concentrated exclusively on the claimant’s ability to cross the road using a zebra crossing, and in so doing had not applied the wording of descriptor 8(b) correctly (paragraphs 17–18).

Specifically, in descriptor 8(b) crossing the road was (because of the use of the words ‘such as’) ‘simply one illustration’ of a potentially hazardous task, and ‘not an exclusive and exhaustive definition’ (paragraph 18). Therefore, the tribunal had erred in treating the test of crossing the road as the sole context, to the exclusion of others – the judge suggested other potential illustrations might include walking alone on a country lane where there is no footpath, walking round a shop or workplace where there may be boxes or other obstacles at floor level, or perhaps even a busy pedestrian route with bustling crowds (paragraph 5).

Even in the context of crossing road, the tribunal had erred in focusing on the claimant’s ability to use a zebra crossing. The test was whether the claimant could ‘safely cross the road without being accompanied’, not ‘cross the road by a zebra crossing without being accompanied’. A zebra crossing could not be regarded as an ‘aid’ which could be taken into account for this purpose, as such an aid must be something which the claimant can take about with him (paragraph 20).

Summary

The claimant had various health problems including panic attacks out of doors, alcohol dependency and chronic back pain. Her claim for DLA was refused, a decision that was upheld by the First-tier Tribunal (‘the DLA tribunal’), who had been asked to consider her entitlement to the low rates of both the mobility and the care components. On the day of the tribunal hearing, the DLA tribunal had been given a copy of a decision notice dated the day before, indicating that she had successfully appealed an employment and support allowance (ESA) decision. The First-tier Tribunal dealing with that appeal (‘the ESA tribunal’) had awarded her 9 points under descriptor 15(b) for ‘getting about’, and 9 points under descriptor 16(b) for ‘coping with social engagement due to cognitive impairment or mental disorder’. However, the DLA tribunal made no reference to that.

Judge Hemingway allowed the claimant’s further appeal, and remitted the case for consideration by a fresh tribunal. The DLA tribunal had erred in failing to take into account a relevant matter, namely the decision of the ESA tribunal (paragraph 35). The judge accepted submissions from the Secretary of State that the DLA tribunal was not bound in any way by the decision of the ESA tribunal, that different tests were in issue, and that there was no obligation on the DLA tribunal to follow any of the ESA tribunal’s reasoning (paragraph 33).

Nevertheless, the DLA tribunal did not make any reference at all to the decision of the ESA tribunal and there was therefore no evidence that it received any ‘meaningful consideration’ at all (paragraph 31). In this case, the ESA tribunal decision was relevant, especially its finding that descriptor 15(b) applied. That is satisfied where the claimant ‘is unable to get to a specified place with which the claimant is familiar, without being accompanied by another person’. While it did not necessarily follow that such a finding meant that the test for entitlement to the lower rate of the mobility component is satisfied, the judge said: ‘…I would take the view that it certainly suggests it might be. There is, it seems to me, a considerable interrelationship between the two statutory tests. So, potentially, the award made by the ESA tribunal was a matter of some significance. It merited the paying of some attention to it…’ (paragraph 34).

Comment from CPAG

Although concerned in particular with the relevance of an ESA award to DLA entitlement for mobility, it is strongly arguable that, depending on the facts, similar reasoning should apply to the relevance of an ESA award to personal independence payment. However, the relevance will depend on the facts, and claimants should be aware that adverse ESA decisions might also be considered relevant.

Summary

The claimant’s appeal to the First-tier Tribunal was signed by her solicitor. In the appeal letter, the solicitor also said that a copy of the letter had been sent to the claimant for her to sign and forward to the local authority. Although the claimant said that she did so, the local authority said that it never received the copy signed by the claimant, and by the time it received such a copy, the appeal was outside of the maximum 13-month time limit allowed for an appeal. The local authority submitted to the tribunal that the appeal signed by the solicitor was not sufficient for the appeal to have been duly made, and the one actually signed by the claimant was made too late. The tribunal accepted that and in an interlocutory decision struck out the appeal.

Judge Wikeley allowed the claimant’s further appeal, holding that the appeal signed by the solicitor was duly made, and remitted the substantial matter of the appeal to a new First-tier Tribunal. The tribunal had erred in holding that an appeal signed by a solicitor was not duly made (paragraph 3). The relevant statutory requirement was at rule 23(6) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 No.2685. That requires, among other things, that the notice of appeal ‘must be signed by the appellant’. But the tribunal erred in failing to apply the finding in General Legal Council ex parte Basil Whitter v Frankston [2006] UKPC 42 that when a statute gives someone the right to invoke some legal procedure by giving a notice or taking some other formal step, ‘he may either do so in person or authorise someone else to do it on his behalf’ (cited at paragraph 25 of the present decision). Judge Wikeley went on to say that, given the code of professional responsibilities and ethics imposed upon solicitors, ‘one can assume that a solicitor sending in a letter of appeal on behalf of their client is properly authorised and acting on their instructions, and so is signing as an agent for their client’ (paragraph 28). This point had also been made by Judge Rowland at paragraph 11 of Salisbury Independent Living v Wirral Metropolitan Borough Council [2011] UKUT 44 (AAC), where he said, ‘the requirement for the appellant’s signature is generally waived where the notice of appeal is signed by a representative who provides signed authority to bring the appeal or who is a solicitor and therefore presumed to act only on instructions’.

Where a non-legally qualified representative, such as a welfare rights worker or CAB adviser provides written authority from their client, then they are in practical terms ‘in the same position as a solicitor who writes on the instructions of their client’. However, where such a representative lodges an appeal but does not provide such authority, the situation is less clear, and it cannot always be assumed that s/he is acting on her/his client’s instructions (paragraph 30).

Summary

The claimant was separated from her son’s father. She lived in a council property with two bedrooms. The son spent equal time with the claimant and with his father under a shared residence order. At the relevant time the father was in receipt of child benefit and tax credit in respect of the son. The claimant’s eligible rent was subject to a 14 per cent reduction under the so-called ‘bedroom tax’ rules contained at regulation B13 of the Housing Benefit Regulations 2006 No.213, as she was regarded as entitled to have only one bedroom (ie, for herself) included. The claimant’s appeal was allowed by the First-tier Tribunal, on the basis that the son occupied as his home both the claimant’s dwelling and the father’s dwelling, and that there was nothing that provided he could not have more than one home or live in more than one household.

Judge Jacobs allowed the further appeal of the local authority, and substituted a decision that for the purpose of regulation B13 the claimant was entitled to only one bedroom, so that the 14 per cent reduction should be applied. The tribunal had erred in misinterpreting the relevant legislation. Specifically, the tribunal erred in regarding the words at subparagraph (5) of regulation B13, which gave entitlement to a bedroom for each person ‘whom the relevant authority is satisfied occupies the claimant’s dwelling as their home’ as freestanding. Rather, these words had to be read in the context of other provisions in the HB legislation. Specifically, regulation 7(1)(a) provides that a person shall be treated as occupying as his home, ‘the dwelling normally occupied as his home…by himself and by his family’; ‘family’ is defined by section 137(1)(c) of the Social Security Contributions and Benefits Act 1992 as ‘a member of the same household for whom that person is responsible and who is a child’, and regarding responsibility regulation 20(2)(a) provides that where a child spends equal time in different households, they are treated as ‘normally living with the person who is receiving child benefit in respect of him’.

Applying that to the present case, given that the father was entitled to child benefit for the son, the claimant was not responsible for him by virtue of regulation 20(2)(a). As a result, the son did not qualify for a second bedroom under regulation B13 (paragraph 9).