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Summary

This decision of a three-judge panel of the Upper Tribunal resolves a split in the caselaw regarding the treatment of dyslexia for DLA, in particular about which 'bodily function' is impaired and whether attention provided in school is outside the scope of DLA, as otherwise there would be unintended 'double provision' from public funds. The decision holds that it could be considered that it is the function of the brain that is impaired, and that attention provided in school can count towards entitlement.

A three-judge panel was convened because of divergent views taken in previous caselaw. On the one hand, Judge May had held in CDLA/427/2006 that no bodily function had been identified as impaired, as the interpretation of writing had nothing to do with the bodily function of seeing, and that educational provision at school is out of the scope of the DLA rules as the cost of such provision, as for DLA, is derived from public funds and Parliament cannot have intended such double provision. On the other hand, in CDLA/1983/2006, Judge Jupp had held at paragraph 18 of the decision (approving another decision in CDLA/3204/2006) that 'ultimately, it may not matter whether dyslexia is considered as part of the bodily function of seeing or alternatively as part of the bodily function of the brain and what matters is substance, not labels... the functions of the brain are included within the term "bodily function".' In the present decision, Judges Charles, Stacey and Gamble agreed with that and disapproved the approach in CDLA/427/2006 (paragraphs 37-8).

Regarding public provision, the judges also disapproved the approach of Judge May in CDLA/427 /2006 and the similar approach he took regarding medical attention provided by a district nurse in CDLA/2349/2010. The judges held instead that 'Parliament did not intend that, of itself, and so without relevant regulations or other statutory provision being made, that publicly funded relevant attention, care or assistance should be discounted when entitlement is being determined' (paragraphs 30- 1 ). With regard to assistance given at school, which the present decision was specifically concerned with, the correct approach focused 'on all of the assistance relied on and thus that given to a child at home and at school' (paragraph 51).

Summary

The claimant claimed JSA on 1 December 2011 . However, her request that it be backdated to 12 September 2011, the date of her 18th birthday, was refused. When at that time her parents had contacted HM RC to report her turning 18, they asked whether she was entitled to any other benefit at that time, and were told by HMRC that there were none. The claimant made her claim only when, later, she found out from what was then the Directgov website that she might be entitled to JSA. The claimant's appeal to the First-tier Tribunal against the refusal of backdating was rejected.

Judge Williams allowed the claimant's further appeal and substituted a decision that her claim be backdated to 12 September 2011. The tribunal had erred in failing to properly apply regulation 19(5)(d) of the Claims and Payments Regulations 1987, SI No.1968 (wrongly cited as 19(5)(e) in the decision transcript). That provided that there could be up to three months' backdating of JSA where the claimant could not reasonably be expected to have claimed earlier and s/he was given information by an officer of the DWP, 'or of the Board' which led her/him to believe that a claim for benefit would not succeed. The reference to the 'Board' was a reference to what is now known as HMRC. Both the DWP and the tribunal had failed to note that, and that failure was an error of law (paragraphs 6-8). The DWP guidance on this rule was wrong in failing also to refer to information from HMRC; and the Secretary of State had indicated to the judge that guidance to officials is to be amended (paragraphs 4-5, 10).

That left the question as to whether, in this case, the claimant could reasonably have been expected to make the claim earlier. Although the facts were not entirely clear, the judge accepted that a combination of erroneous information from HMRC and DWP meant that backdating under regulation 19 should be made to the date sought, 12 September 2011 (paragraph 9).

Summary

In this child support case, the First-tier Tribunal had proceeded with a hearing in the absence of a respondent in the appeal, namely the non-resident parent, even though it was aware that it had the wrong address for him and that notification of the hearing had been sent to that wrong address, as the Child Support Commission told the tribunal that he had notified itof a new address. In its reasons, the tribunal said that it was 'most probable' that he knew of the hearing because post 'would most likely have been passed to him or forwarded on to him', and even if not, it was 'overwhelmingly likely that he knew there was an on-going appeal'.

Judge Jacobs held that tribunal had erred in law. On the facts of this case, by proceeding in the non-resident parent's absence, the tribunal had made an unwarranted finding that he had been notified of the hearing, and (even without that) had broken the rules of natural justice by proceeding. The initial rule engaged here was at rule 31 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, SI No.2685. That provided for a hearing in a party's absence where the tribunal was 'satisfied' that the party had been notified of the hearing or that reasonable steps had been taken to notify her/him, and that it was in the 'interests of justice' to proceed. The judge accepted submissions that the tribunal's finding that the party had 'probably' been notified was unsound as there was no reason to assume that the notification had been passed on, and that it was irrelevant that the party knew of the appeal, as the requirement was to notify him of the hearing (paragraph 13).

Further, held the judge, there was natural justice. The issue was whether the absent party had a fair hearing. Having considered rule 31, the tribunal, 'should have considered whether its conclusion allowed it to give a fair hearing'. Here, the tribunal knew it had the wrong address and showed no concern for the fact that the party had notified the Commission of his new address, suggesting he was not trying to avoid contact. Overall, the judge accepted an argument that there was more the tribunal could have done to ensure a fair hearing; not to have done so was an error of law (paragraph 13).

Decision in brief

Receipt of official medical report was itself a ground for supersession under regulation 26(1)(a) of the Universal Credit (etc.) (Decisions and Appeals) Regulations 2013 – but tribunal’s confirmation of removal of mobility award was entirely based on its finding that the claimant could drive an automatic car and had used an airport – tribunal failed to investigate the evidence and/or make adequate finding of fact and/or provide adequate reasons for its decision

The claimant had essential hypertension, non-diabetic hyperglycaemia, bronchiectasis, benign prostatic hyperplasia and chronic kidney disease stage 3. He was awarded nil points for both components of PIP. The First-tier Tribunal awarded him the standard rate of the mobility component but refused the daily living component, having decided to award him a combined total of 4 points in the activities for washing and bathing and for dressing and undressing. Included in the tribunal’s reasoning was that, despite his problems with breathlessness, the claimant was able to wash and bathe using an aid in the form of a grab rail and so scored just 2 points under descriptor 4b.

Judge Brewer allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred in its approach to the question of the claimant’s need to use an ‘aid’ to carry out certain activities. Regarding getting in and out of the bath, the tribunal concluded he could carry out this activity with the use of a grab rail as an aid, but erred in not considering this ‘through the lens’ of regulation 4(2A) and assess whether the aid was sufficient to ensure he could wash and bathe to an acceptable standard and/or whether the aid was able to overcome his functional impairment (paragraph 58). Other errors were not properly considering the impact of the claimant’s breathlessness on his walking ability, rejecting evidence of his problems with swallowing without considering his reports of constant coughing in the light of his historic tuberculosis and in failing to consider his fatigue related to his medical conditions when assessing his difficulties with budgeting.

The judge rejected the submission of the Secretary of State that a feature such as handles already fitted on a bath could not constitute an ‘aid’, in so far as they could assist any person, irrespective of their functional impairment. The decision of Judge Jacobs in CW v SSWP (PIP) [2016] UKUT 197 (AAC) was cited in support. Judge Brewer did not accept the Secretary of State’s argument, to the effect that if a device assists everyone then it could not be an aid, as a ‘blanket proposition’ (paragraph 40). Firstly, CW:

‘does not establish as a blanket principle that if a device is commonly used by non-disabled and disabled persons alike it cannot constitute an aid for the purposes of the regulations. That is an impermissible overstatement of what CW decided' (paragraph 41).

It was axiomatic that an everyday object was likely to be used by the functionally impaired and non-functionally impaired alike. What was held in CW was that someone who sat on a bed rather than stood to get dressed was unable to demonstrate a limitation with the functions that are required for that activity. But that (said Judge Brewer) was not authority that ‘normality of behaviour’ should be the cornerstone of establishing whether something is an aid or not. The definition of ‘aid’ under regulation 2 of the Social Security (Personal Independence Payment) Regulations 2013, SI No.377, is that it is ‘any device which improves, provides or replaces [the claimant’s] impaired mental or physical function...’. So, the limitation in the definition ‘is directed not at what the device is, but what it does for the PIP claimant, i.e. does it improve, replace or provide for the impaired functioning to undertake the descriptor task’ (paragraph 47). Everyday devices can operate as an aid: 

‘It may well be that where a PIP claimant relies on their use of a common everyday device as evidence of functional impairment it may have limited or no value in establishing that function impairment (see the wooden spoon analogy in CW). However, that remains a question of fact for the tribunal exercising its inquisitorial function and assessing all the evidence before it’ (paragraph 51). 

Where a claimant had evidenced a physical condition and established that but for the bath handles he could not get in and out of the bath, the handles were an aid, as they were ‘a device which operates to overcome the functional impairment in question’ (paragraph 52).

Comment from CPAG

This decision is an important clarification of the way the decision in CW should be interpreted. It is a clear rebuttal of the Secretary of State’s position that everyday items cannot constitute an aid. See our article: PIP and aids for more.

Decision in brief

Tribunal properly directed itself as to the principles (re admission, in exceptional circumstances, of appeals made outside that time limit) in Adesina v Nursing and Midwifery Council [2013] EWCA Civ 818 – it may be relevant to that test whether claimant had done everything they could to appeal in time – but tribunal erred in using its discretion to strike the appeal out without holding a hearing – should have considered whether it was fair and appropriate to do so

Summary

The claimant was in receipt of UC. On 17 April 2021, the claimant reported in her online journal that she had a health condition that affected her capacity for work and that she was a carer for her disabled daughter. The claimant asked if she needed to submit a ‘fit note’ but received no reply. She supplied a fit note on 24 February 2022, dated 15 April 2021. Having had a work capability assessment (WCA) applied and been assessed as having limited capability for work-related activity (LCWRA), it was decided that the three-month ‘relevant period’ before the LCWRA element could be included in the award started on 24 February – ie, the date she supplied the fit note. On appeal, the First-tier Tribunal upheld that decision, holding that the relevant rule (at regulation 28 of the Universal Credit Regulations 2013 No.376) provided that the relevant period only began when the fit note was provided.

Judge Church allowed the claimant’s further appeal and substituted a decision that the relevant period in this case began on 17 April 2021 – ie, the date on which the claimant reported her health problems on her online journal but received no response to her query about submitting a fit note. The tribunal had erred in its interpretation of the meaning of regulation 28. In fact, that did not preclude a self-certification from starting the three-month period. Further, given the fact that the DWP had not responded to the claimant’s query about a fit note, it was unreasonable (in terms of the legislation) to require her to have done so at that point, and, together with the later submission of a ‘backdated’ fit note, the claimant had bridged the gap between her report on the journal and the actual date on which the fit note was submitted.

Regulation 28 was the relevant rule for the relevant period. That provides that (except in cases concerning claimants earning above a certain threshold) the relevant period begins on ‘the first day on which the claimant provides evidence’ of their limited capability for work, ‘in accordance with the Medical Evidence Regulations’. Those regulations are the Social Security (Medical Evidence) Regulations 1976 No.615. Regulation 2 of those regulations provides by default that the medical evidence required is, in effect, a fit note. But an exception to that at subparagraph (1A) is that where it would be ‘unreasonable’ to require a fit note, the person shall provide ‘such other evidence as may be sufficient’. Another exception was at regulation 5, which provides for self-certification for the first seven days of sickness. The judge could see ‘no reason’ why the claimant’s report in her journal on 17 April should not be self-certification for the first seven days of her sickness (paragraph 22). Further, given that the claimant reported her sickness timeously and that her query about submitting a fit note was unanswered it was ‘unreasonable’ (per regulation 2(1A) of the Medical Evidence Regulations) to require her to provide a fit note for as long as that query went unanswered. The judge was satisfised that the claimant’s report on her journal together with the later submission of a backdated fit note amounted to ‘such other evidence as may be sufficient’, with the backdated fit note serving to ‘bridge the gap’ back to her initial self-certification (paragraph 26).

Comment from CPAG

It is common for the default requirement for a fit note to start the relevant period to be mistaken for an absolute rule with no exceptions. This decision is clear authority that such an interpretation is wrong. 

Thanks to Lee Kempson, Welfare Rights Officer at City of Wolverhampton Council and the claimant’s representative, for sending us this decision.