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Decision in brief

Claimant overpaid due to going abroad, temporary absence rules did not apply and he did not inform the local authority – but his wife and four children remained in the property – tribunal did not correctly apply regulation 104(1) regarding the calculation of the overpayment – that requires the deduction of any housing benefit which should have been determined to be payable to the person overpaid, ‘or their partner’ (ie, in this case the claimant’s wife) – it was immaterial here that only one person can be the housing benefit claimant – proper approach is to ‘see what the true circumstances of a claim were had the claimant submitted a valid claim for benefit and to calculate benefit due to either the claimant or his partner on that basis’

Decision in brief

Client had a hearing problem and misheard the verbal instruction to attend a CV writing course, in that he misheard the time – instruction was confirmed in a letter which made it a jobseeker’s direction, but claimant did not read the letter – when he turned up 10 minutes late for the course, he was told he was too late, and he immediately reported that to the jobcentre and rebooked the course – claimant had a past record of compliance with attending appointments – in the circumstances, this was not a ‘failure’ to carry out a jobseeker’s direction and tribunal erred in not considering whether there was a failure – no sanction was therefore applicable

Summary

Although the First-tier Tribunal scored the claimant seven points for the daily living component, that was not enough to give rise to entitlement. The tribunal did not award the claimant any points under Activity 6 for dressing and undressing, despite the fact that the claimant said on the claim form that she needed help from another person due to pain and discomfort in her joints and dizziness when she bent down. The tribunal noted that, at the tribunal hearing, the claimant said that she wore ‘easy to wear’ clothes, and the tribunal observed that she was able to take off her cardigan unaided.

Judge Jacobs allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred in its approach to Activity 6. In particular, that was because it failed to approach it taking into account the principles set out by the judge (at paragraph 19): (1) the test is a general one of ability to dress, ‘not whether they can dress in any particular types of clothing’; (2) the tribunal ‘should not limit itself to the minimum clothing necessary for warmth and decency’; (3) that did not mean that the claimant is entitled to specify the type of clothing by way of preference or requirement; (4) the tribunal must not identify the clothing in a way that defeats the purpose of the test by defining away the limiting effects of the claimant’s disability; (5) but the tribunal can consider ‘reasonable and practical alternatives’ – for example, the ability to put on a cardigan rather than a pullover; (6) the correct balance can be struck by concentrating on the functions that underlie the activity; thus, ‘it may be appropriate in an overall assessment…to disregard a limitation with a particular function. But it would not be appropriate to disregard a limitation with so many functions that the claimant could only wear loose, elasticated clothes with no fastening.’ By way of further illustration, the judge said that a claimant who has difficulty with handling small objects cannot rely on problems in fastening a particular dress with many buttons; but a claimant who cannot manage buttons or laces cannot be tested by reference to her/his ability to dress in clothes fastened by Velcro (paragraphs 14–15).

The judge also commented on the meaning of the wording in regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013, SI No.377. That provides that, where a claimant’s ‘ability to carry out an activity is assessed’, s/he is to be assessed ‘as satisfying a descriptor’ only if s/he ‘can do so’ safely, to an acceptable standard, repeatedly and within a reasonable time period. The judge held that the words ‘can do so’ referred to simply to the claimant’s ability to ‘carry out an activity’, not to whether s/he is assessed as ‘satisfying a descriptor’. So, for example, what mattered was whether the claimant could carry out the activity safely, not whether that could be applied to a particular descriptor (paragraphs 22–24).

Summary

The claimant suffered from a genetic disorder (confirmed by medical evidence) that causes strong body odour, and associated mental health problems including anxiety, depression and paranoia. In her appeal against her disability living allowance (DLA) decision, the claimant had told the tribunal by letter that she found it stressful to be around other people, because of her body odour and the often hostile reaction this provoked in others. She said she could not attend a hearing because of her condition and asked whether the tribunal could telephone her on the day of the hearing if it had any questions. The tribunal decided to proceed in the claimant’s absence, and did not telephone her, as it considered it had sufficient information to make an informed decision. It awarded only the lower rate of the mobility component.

Allowing the claimant’s further appeal, Judge Knowles QC observed that it was no understatement to describe the effect of the condition on the claimant as ‘devastating’, and that the claimant’s account of the impact of the condition on her life made for ‘poignant reading’ (paragraph 7). As submitted by the Secretary of State, the tribunal erred in failing to consider the guidelines set out in the Senior President of Tribunals Practice Direction of 30 October 2008 on Child, Vulnerable Adult and Sensitive Witnesses (the ‘Practice Direction’). There, a sensitive witness was defined as, ‘an adult witness where the quality of the evidence given by the witness is likely to be diminished by reason of fear or distress on the part of the witness in connection with giving evidence in the case.’ Where such a witness was required to give evidence to enable a fair hearing, the tribunal should consider use of means such as a telephone or video link. The judge agreed that dealing with the case fairly and justly required attention to that, as there was no doubt that the claimant was a sensitive witness (paragraphs 15–16).

The tribunal had made explicit reference to rule 31 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, SI No.2685, – ie, that which permits hearings in a party’s absence. But, erroneously, it made no reference to the overriding objective in rule 2 to deal with a case ‘fairly and justly’, and in particular to rule 2(2)(c) on ‘ensuring, so far as practicable, that the parties are able to participate fully in the proceedings’. Proper attention to that would have suggested that the tribunal considered hearing from the claimant on the telephone, as she had requested, and, indeed, consideration of the Practice Direction. The tribunal had also erred in simply failing to ask itself whether it might obtain further useful evidence from the claimant by telephoning her (paragraphs 22–24). Directing that the appeal should be reheard by a new tribunal, the judge directed that the claimant should be given the opportunity to attend the new hearing by telephone, in accordance with the Practice Direction (paragraph 33).

Comment from CPAG

This is another in a recent line of decisions reminding tribunals of the requirement to allow parties to participate in hearings, as part of the overriding objective of dealing with cases fairly and justly – see also DT v SSWP (DLA) [2015] UKUT 390 (AAC) and CH v SSWP (ESA) [2015] UKUT 187 (AAC).

Summary

The claimant had some right-sided weakness and used a walking stick in her right hand. She had difficulty standing and needed a stool when cooking. However, the First-tier Tribunal, in rejecting the claimant’s appeal, also removed the two points she had been awarded (and was not putting in issue herself) under descriptor (b) of Activity 1 of the assessment for daily living activities, namely for: ‘needs to use as an aid or appliance to be able to either prepare or cook a simple meal’.

Judge Wright allowed the claimant’s appeal. The tribunal erred in failing to explain why it considered that the stool was not needed in order to prepare or cook a simple meal and, in failing to address, as required, whether without any aid the claimant could cook a meal safely. Also, it had focused on the fact that the occupational therapist had not recommended any necessary specialist aids, when the definition of ‘aid’ for PIP is very broad and not restricted to specialist devices (paragraphs 4–6). The judge also commented that a walking stick could probably just as much be an ‘aid’ needed for this descriptor as a stool or perching stool (paragraph 3).

The judge accepted that where a claimant had not been awarded either rate of the daily living component (or the mobility component), then on appeal a tribunal may potentially need to consider all activities that may be in issue (paragraph 7). However, that did not mean, as apparently considered in this case, that the tribunal must consider all descriptors as a matter of course, including those where points had already been awarded and were not the subject of any challenge in the appeal. Whether such descriptors come into issue ‘will depend on the facts of each case’ (paragraph 9). Further, the judge accepted that a tribunal does have the power to remove points already awarded, but that, depending on the facts of the case, could amount to a breach of natural justice if the claimant is not at some stage given an appropriate warning that the tribunal is indeed considering doing that (paragraphs 10–11).

Summary

The claimant had a defective ankle and stated that he could not get up the stairs, used a bucket to toilet downstairs but sometimes had an ‘accident’. He did not actually have a bowel or bladder continence problem. He appealed against the decision that he scored only nine points in the work capability assessment (WCA) (for inability to mount or descend two steps unaided). The First-tier Tribunal refused his appeal, holding that he was not entitled to further points under the mobility descriptors. It did not ask him any questions about toileting. However, in its reasons, the tribunal also said that although it was well established that incontinence caused by inability to reach a toilet because of other problems could count, the claimant was not entitled to points under the continence descriptors as he could use a bucket, and use of that was relevant as an ‘aid or adaptation’.

Judge Mitchell allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred in its findings about the continence descriptors. It was an error of law to conclude that a bucket was an aid or appliance. The wider legislative context required a continence aid or appliance to be one that can be used by the claimant ‘in a workplace without the associated indignity against which the WCA is designed to protect.’ That excluded a bucket (paragraph 1). The judge also noted that a bucket could not be an aid or appliance in this context as it cannot have any effect on whether or not control of bladder or bowel was lost, and that a bucket was not a toilet (paragraphs 37–39).

But the tribunal had also erred in considering that the continence descriptors might apply even where the claimant did not actually have a problem with the continence of his bladder or bowel. A person cannot score points in these descriptors for mobility problems alone. Although previous caselaw (EM v SSWP [2014] UKUT 34 (AAC) and FR v SSWP [2015] UKUT 151 (AAC)) had rightly held that points could be scored where the claimant was unable to reach the toilet because of ‘other physical problems’, that presupposed that the claimant also had a disease or disablement affecting the functioning of the bladder or bowel (paragraphs 2 and 33–36).

Summary

The claimant had appealed against a decision that he failed the work capability assessment. His case included that he should score points under the mobilising descriptor, although it was part of his argument that he used a wheelchair most of the time. In the hearing before the First-tier Tribunal, the tribunal asked the claimant to roll up his trouser leg so that the medical member of the tribunal could form a view as to whether muscle wasting had occurred as a result of wheelchair use. The tribunal concluded both that in fact the claimant did not reasonably require to use a wheelchair, but that he was able to use one to mobilise and did not score any points under the mobilising descriptor.

Judge Hemingway held that although the tribunal had erred in impermissibly conducting a medical examination, because of other factors in the appeal, including the fact that it considered he could mobilise using a wheelchair, that did not amount to a material error and so the claimant’s further appeal was dismissed. The tribunal had not erred in simultaneously holding that the claimant did not reasonably require to use a wheelchair, but that he could nevertheless mobilise using one. There was no evidence that there was any practical difficulty in the claimant obtaining or using the wheelchair or that using one was injurious to him; however, this was an unusual set of circumstances and it will be a more usual situation for a claimant to be denying that s/he can use a wheelchair (paragraphs 30–31).

The tribunal had erred in asking the claimant to roll up his trouser leg so that it could observe his lower leg. Under section 20(3)(a) of the Social Security Act 1998, a tribunal may not carry out a ‘physical examination’ (except in cases set out in the Tribunal Procedure Rules). Applying R1/01(IB)(T) (a Northern Ireland decision), the judge held that the tribunal breached that, because it was not merely relying on an observation it would have made anyway, it focused specifically upon a particular part of the claimant’s body, involved the tribunal asking the claimant to expose some part of the body covered by clothing and was directed towards a question of a medical nature regarding a physical consideration (paragraph 19).

Summary

The claimant was a single person and a foster carer for the local authority. Until July 2013, she qualified for IS as such a person, under paragraph 2 of Schedule IB of the Income Support Regulations 1987, SI No.1967, – ie, as ‘a single clamant or a lone parent with whom a child is placed…by a local authority or voluntary organisation within the meaning of the Children Act 1989.’ However, in September 2013 it came to light that the child the claimant had been fostering left her home in July 2013, and the claimant had had no placement since. Instead, she remained on call as a foster carer, and provided paid respite and day care to support other foster carers. The DWP terminated her entitlement (‘the entitlement decision’), and made a decision that there was a recoverable overpayment caused by the claimant’s failure to disclose (‘the overpayment decision’). The First-tier Tribunal dismissed the claimant’s appeal against both the entitlement decision and the overpayment decision.

Judge Perez dismissed the claimant’s further appeal. The tribunal had not erred in law. The claimant had ceased to be entitled to IS as a single foster carer when her foster child left her home and, applying the wording of the law, she was not entitled while supplying respite and day care support, even though both she and the local authority still regarded her as a foster carer. The overpayment was recoverable as the claimant had been sent sufficient notice by the DWP to impose on her a duty to report that her child had left her home, and she was in breach of that duty.

Construing the wording of paragraph 2 of Schedule IB, the judge held that the tribunal was correct to find that the claimant did not have a child ‘placed’ with her after July. The test was not whether the claimant was a foster carer, but rather whether she had a child placed with her within the meaning of the Children Act 1989 (paragraph 47). That meant that, ‘the claimant must actually have a child living with her, or accommodated by her, in discharge of the local authority’s functions under that Act’ (paragraph 49). On the facts of the present case, it was accepted that the claimant no longer had a ‘placement’ with her in the period in issue.

Summary

The claimant needed held from his wife setting up a TENS machine. That was for a maximum of 10 minutes and then for about two minutes to remove it at the end of each session in which the machine was used. The First-tier Tribunal declined to award points under Activity 3 (managing therapy) of the assessment for the daily living component, on the grounds that ‘the relevant therapy is what the TENS machine does while it is fitted to the appellant. Assistance to set it up is not assistance with the management of the therapy.’

Judge Sir Crispin Agnew of Lochnaw Bt QC held that the tribunal had erred in law. In particular, it had erred with regard to descriptor 3 (c), which applies where the claimant ‘needs supervision or prompting or assistance to be able to manage therapy that takes not more than 3.5 hours a week’. The judge considered that that descriptor applied, as the assistance in setting up the TENS machine was indeed help which allowed the claimant to manage his therapy. He therefore agreed that the total 12 minutes each day in which the claimant was assisted in setting up and taking down the TENS machine was assistance to be able to manage his therapy and, as that took no more than 3.5 hours a week, descriptor 3(c) of Activity 3 applied. The judge rejected an argument that the claimant was also getting such assistance while the TENS machine was in operation and he was on his own (paragraphs 6–8).

Decision in brief

Phrase means ‘cannot either chew and swallow food or swallow drink’ – specifically, ‘cannot chew or swallow food’ means ‘cannot either chew or swallow food’ or, put another way, ‘cannot chew and swallow food’ – so a person who cannot chew food but who can swallow thin soup and drink liquids will satisfy a descriptor

Decision in brief

Such agreements in themselves do not count as a ‘loan’ – claimant who subsequently takes out a loan while on benefit to buy out the absent partner’s share may be caught by restriction on interest payments on loans taken out while on benefit, even where a disabled person lives in the house – that is not unlawful discrimination under Article 14 of the European Convention on Human Rights – the Secretary of State had ample justification for the general exclusion of interest on payments to buy out the absent partner on divorce, and had also shown justification for not making an exception in such cases

Summary

The claimant was a Polish national who came to the UK in December 2008. She started work in January 2009 and worked in agency work until March 2011. She claimed (and received) jobseeker’s allowance (JSA) from May 2011, and got maternity allowance from June 2011 until March 2012, her daughter being born in September 2011. In March 2012, she claimed IS on the basis of being a lone parent, but was refused as she was considered not to have the right to reside. The First-tier Tribunal allowed her appeal, and the Secretary of State made a further appeal.

Judge White held that the tribunal had erred in law, but substituted his own decision that the claimant in any case did have the right to reside, as a person with retained worker status when she made her IS claim. The tribunal had erred in holding that the mere fact that the ending of the Worker Registration Scheme, which applied (among others) to Polish nationals meant in itself that the claimant was entitled to IS, without considering whether, as a European national, she had a right to reside (paragraph 16).

However, the claimant did have a right to reside, as that of someone who retained worker status. The claimant became involuntarily unemployed when her work came to an end in April 2011, and subsequently was awarded JSA. The judge considered this meant she retained her status as a worker under Article 7(3)(b) of EC Regulation 2004/38/EC (the ‘Citizenship Directive’) – ie, on the basis of being involuntarily unemployed after being employed for more than one year. This was despite gaps of around two weeks and of around four days between some of her agency jobs, and a delay of around five weeks between the work ending and the claim for jobseeker’s allowance. These did not amount to any undue delay (paragraphs 45–52). Article 7(3)(b) imposed no indication of the period for which worker status could be retained; the judge considered the period to be ‘open-ended though not forever more’ (paragraph 53). It was ‘eminently reasonable’ that there was no difficulty in retaining it for a year ‘in the absence of some intervening event which indicates that the person has withdrawn from the labour market entirely’ (paragraph 54). Claiming maternity allowance and, ‘in the claimant’s circumstances’ (which included remaining registered with employment agencies once her circumstances allowed), claiming IS did not constitute abandonment of worker status. The claimant, therefore, enjoyed retained worker status when she claimed IS in March 2012 (paragraphs 55–58).

Comment from CPAG

Judge White does not comment upon the fact that the domestic rules (ie, the Immigration (European Economic Area) Regulations 2006) now provide that to retain worker status after having worked for a year or more, after six months there must be ‘compelling’ evidence of seeking work and of a genuine chance of getting it. This requirement is not in Article 7(3)(b) of the Citizenship Directive, and is difficult to square with the judge’s finding that at least for a year the test should be whether the claimant has ‘withdrawn from the labour market entirely’.