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Summary

The claimant was refused PIP. In upholding that decision, the First-tier Tribunal said that it ‘adopted a broad axe approach to all of the evidence as required in the case of Moyna.’ That was a reference to the decision of the House of Lords in Secretary of State for Work and Pensions v Moyna, reported as R(DLA) 6/03, a Disability Living Allowance (DLA) case which held that for the DLA ‘cooking test’ an overall judgement was required rather than an arithmetical test. That approach was extended to all aspects of the care component of DLA in R(DLA) 5/05. In the present case, the claimant appealed, arguing that it was incorrect to apply the test in Moyna to PIP, as that was a different benefit and, in particular, the ‘50 per cent’ rule to assessing variability (contained at regulation 7 of the Social Security (Personal Independence Payment) Regulations 2013 No.377) should be used instead.

Judge Gamble agreed with that, allowing the claimant’s further appeal and remitting the case to a new tribunal. Moyna should not be applied to PIP. It is a replacement for DLA, with different and distinct statutory criteria of entitlement. In the judge’s view, it was ‘entirely consistent with the differences between the statutory conditions of entitlement to disability living allowance and those to personal independence payment to hold that the test laid down in Moyna as extended by R(DLA) 5/05 has been replace by the fifty per cent rule for variability’ contained in regulation 7 of the PIP regulations. That clearly provided for an “arithmetical formula”’ (paragraph 9).

Comment from CPAG

This first Upper Tribunal decision about PIP is a reminder that, despite some similarities, PIP is a different benefit to DLA, and where (as here) the statutory schemes differ substantially, it is the PIP rules that must be followed. However, where more general principles are involved, DLA caselaw may still be relevant – see, for example, BTC v SSWP.

Summary

This decision of a three-judge panel of the Upper Tribunal arises from different approaches in the caselaw to the question of what evidence is required when making a decision on whether a claimant is to be treated as having limited capability for work-related activity (ie, in the support group for ESA) due to there being a ‘substantial risk’ to her/his or someone else’s health were s/he not to be so treated, as provided for at regulation 35(2) of the Employment and Support Allowance (General) Regulations 2008, SI 2008 No.797. In MT v SSWP (ESA) [2013] UKUT 545 (AAC), Judge Gray had held that the Secretary of State was under an obligation to supply the relevant information to the First-tier Tribunal and that, generally speaking, without that the tribunal could not rely on its own knowledge; she disagreed with the finding by Judge White in AK v SSWP (ESA) [2013] UKUT 435 (AAC), who held that in the absence of the Secretary of State’s evidence generally the tribunal could rely on typical examples that were within its own knowledge.

In the present decision, Mr Justice Charles and Judges Warren and Rowland held that: (1) the Secretary of State should provide evidence of the ‘types’ of work-related activity available in the area in which the claimant lives and by reference to that ‘what the particular claimant may be required to undertake and those which he considers it would be reasonable for the provider for the claimant to undertake’ (paragraph 106); (2) however, the Secretary of State’s obligation is merely to indicate the activity the claimant ‘might’ be required to do, not that which s/he actually would be required to do (paragraph 118); (3) such evidence should be provided even in cases where the claimant has been considered not even to have limited capability for work (paragraph 108); (4) in some cases it may be sufficiently obvious to the tribunal that there is no substantial risk from any work-related activity, but in some cases (especially because information from the decision is not then passed to the decision maker who decides what work-related activity the claimant is actually then required to undertake) the tribunal cannot be sure and so will be entitled to decide that there is substantial risk (paragraphs 111–112); (5) if the Secretary of State fails to provide the relevant evidence, the tribunal is entitled to use its own knowledge ‘if it is confident that it is up-to-date and complete as to the more demanding types of work-related activity’, or it may adjourn to get more evidence, or it may decide that it can decide the case without the extra evidence – it will depend on the particular facts and, in particular, ‘how vulnerable the claimant is’ (paragraph 117).

Comment from CPAG

Despite the comment that the panel ‘broadly prefer the approach of Judge Gray in MT to that of Judge White in AK’ (paragraph 118), the decision is in effect a blending of the approaches from both decisions. However, although tribunals may use their own knowledge, that clearly must be more detailed than the general categories of ‘interviews, retraining or therapy’ referred to in AK.

Summary

The claimant had physical and mental health problems. They included major depression and panic attacks. She was transferred from income support to employment and support allowance, and was placed in the work-related activity group. On appeal she argued that she should have been placed in the support group (ie, be regarded as having limited capability for work-related activity) due to there being a 'substantial risk' to her health if she were required to undertake work-related activity. She submitted evidence that receipt of the tribunal enquiry form had triggered a serious panic attack, and a letter from her doctor saying that she had severe generalised anxiety and depression and could not be left alone by her husband. The tribunal, in a paper hearing (the claimant having said she did not want to attend), dismissed the appeal, holding that she had in the company of her husband been able to attend a counselling session.

Judge Mark allowed the claimant's further appeal and remitted the case to a new tribunal. The tribunal had erred in its application of the substantial risk rule at regulation 35(2) of the Employment and Support Allowance Regulations 2008, SI 2008 No.797. The tribunal had failed to refer to the evidence as to her reaction to the enquiry form, and more generally was 'woefully short of evidence to justify its findings' (paragraph 14). There was no evidence about how the claimant actually was when she attended the single counselling session cited by the tribunal, and that was insufficient to support a finding that she could safely undertake work-related activity (paragraph 15). The 'only sensible course' for the tribunal to have taken was to have adjourned and invited the claimant's husband to attend a hearing and considered getting medical evidence and directing a medical examination (paragraph 18).

Also, the tribunal's approach was wrong in the light of the decision of the three-judge panel of the Upper Tribunal in IM v SSWP (ESA) [2014] UKUT 412 (AAC). In the light of that decision, the tribunal erred in not adjourning to obtain the information referred to in that decision, being information from the Secretary of State as to the type of work-related activity in the area in which the claimant lived (paragraph 22). Also, the Secretary of State should now provide evidence of 'any general practical limitations on the extent to which work-related activity is required in the area, so that, for example, a practical decision not to ask anybody over 55 to undertake work-related activity would be relevant to the question of risk, the claimant having been born in 1956.' However, if the practical position was that she might be required to undertake activities potentially dangerous to her, that was something the tribunal must assess (paragraph 22). Finally, following IM it was for the tribunal to seek evidence and make findings of fact as to the likely extent to which a third party may be available to the claimant and to assess the risk to the claimant in the light of that: depending on the evidence, it may be that such support will always be available, or that it will be available rarely, or commonly but not reliably (paragraph 23).

Summary

The claimant had no use of her left arm, but her right arm was fully functional. On appeal (having been held to fail the work capability assessment) the claimant was awarded six points for descriptor 4(c) of the work capability assessment ('cannot transfer a light but bulky object such as an empty cardboard box'), but not other points. In particular, the tribunal refused to apply descriptor 5(d), which at the relevant time was 'cannot use a suitable keyboard or mouse' (and from 28 January 2013 became 'cannot single-handedly use a suitable keyboard or mouse').

Dismissing the claimant's further appeal, Judge Mark first held that (contrary to the argument of the Secretary of State) the tribunal was entitled on the facts to award descriptor 4(c). The Secretary of State submitted that exclusion of a former reference in the descriptor to using both hands meant that is was generally accepted that a person could manage to perform the activity by using one hand and supporting the box against another part of the body. The judge disagreed. There was no suggestion that the 'bulky' object had diminished. Also, held the judge, 'in my judgement the effect of the change of wording is that the use of both hands together is no longer essential. If it can be picked up and moved by the use of one arm and the upper body, presumably by wedging it under the arm, that will suffice. But not everybody is expected to be able to do that. It seems to me that the tribunal concluded, as it was entitled to, that this claimant would reasonably require both arms to perform the task' (paragraph 5).

Regarding descriptor 5(c), the judge referred to the disagreement with his own previous decision in CL v SSWP [2013] UKUT 434 (AAC) by Judge Wright in DG v SSWP [2014] UKUT 100 (AAC) (see Bulletin 239, p6). Judge Wright disagreed with the finding in CL v SSWP that the context for the descriptor was using a computer, so that inability to use either keyboard or a mouse would be sufficient to score points. In the present decision, Judge Ward made it clear that what is being tested is physical ability to use a keyboard or mouse (paragraph 10). But he continued to believe that 'when the descriptor speaks of using a keyboard or mouse, as Judge Wright's examples make clear, the use can only be to achieve results on a computer. It follows that in assessing whether hands are so lacking in dexterity as to score points on this descriptor it must be in relation to the operation of a computer' (paragraph 11 ). On the facts of this case, however, that did not assist the claimant: she had no problems with her right hand, and suitable keyboards with standard facilities like StickyKeys can be operated with one hand (and the introduction of 'single-handedly' did no more than confirm what the case was already). Even though there might be some things the claimant could not do, 'provided her dexterity was such as to enable her to use the keyboard so as to have a significant ability to use a computer', that did not mean she could not use a keyboard or mouse (paragraphs 12-14).

Summary

The claimant was a six-year-old child with autistic spectrum disorder. He was awarded the high rate of the care component of DLA, but refused the mobility component. On appeal, it was argued that he should be awarded the high rate on the basis of the 'severe mental impairment' route. The First-tier Tribunal rejected the appeal, holding that although the claimant probably suffered from arrested or incomplete development of the brain, his impairment of intelligence and social functioning was not extreme, and the evidence showed that his social functioning was restricted but not severely impaired.

Judge Knowles QC allowed the claimant's further appeal and remitted the case to a new tribunal. The tribunal had erred in applying the evidence and the relevant law. Section 73(3)(a) of the Social Security Contributions and Benefits Act 1992 provided that the severe mental impairment route included the requirement that the claimant was 'severely mentally impaired'. That was defined by regulation 12(5) of the Social Security (Disability Living Allowance) Regulations 1991, SI 1991 No.2890, as meaning 'a state of arrested development or incomplete physical development of the brain, which results in severe impairment of intelligence and social functioning.' In the relevant caselaw, the judge considered R(DLA) 1 /00 as authority for the proposition that evidence about a person's insight and sagacity can satisfy both the test of severe impairment of intelligence and severe impairment of social functioning (paragraph 17). In CDLA/2414/2012, insight and sagacity had been equated with 'the ability to function in real-life situations' (paragraph 18).

The tribunal had erred in applying a comment in the evidence that the claimant had 'good non-verbal problem solving skills' out of context, when the evidence also included that the claimant had very low understanding of language and expressive language skills, and also in not considering other evidence such as that from his school and his statement of special educational needs (paragraphs 21-23). The tribunal also erred in assuming that the claimant's poor language skills could not be evidence of impaired intelligence (paragraphs 24-25). Further, the poor language skills could be evidence of impaired social functioning, and in this case there was evidence that this was the case (paragraphs 29-30). Also, the tribunal had erroneously concentrated on the claimant's ability to get on with people known to him, without considering his ability to function socially 'outside a highly structured environment' and to interact with strangers. Ability to interact with strangers was a relevant consideration even where the claimant was a child (paragraphs 31-33). Overall, the tribunal had erred by failing to apply R(DLA) 1 /00 correctly: the judge held that 'what is required for the purpose of section 12(5) is a holistic assessment of both intelligence and social functioning together with a recognition that the same evidence may satisfy the test for severe impairment of intelligence and of social functioning' (paragraph 35).

Summary

The claimant was a Polish national who came to the UK to join her Polish father, who was here as a worker. She subsequently became estranged from him and was taken into care. After leaving care she claimed income support as a full-time student who was estranged, but was refused on the basis that she failed the right to reside test. She appealed on the basis that at the relevant time she had the right to reside as a family member of a European worker. She was too distressed to attend the appeal hearing but was represented. The First-tier Tribunal dismissed the appeal, holding that the representative could not give evidence (otherwise not before the tribunal) about the father’s last known address and place of work in the UK, and that the claimant was not a family member.

Judge Ward allowed the claimant’s further appeal and substituted a decision that the claimant did have the right to reside as a family member. The tribunal had erred in not observing its inquisitorial function. The judge agreed with the Secretary of State who submitted that the tribunal had not dealt with the issue of the family member argument adequately, as the tribunal could have directed the Secretary of State to provide the relevant information. That was especially so given the facts of the case, Judge Ward saying: ‘the circumstances of a young foreign national, estranged from her father, recently having left care and apparently too distressed to attend the hearing, were such as to make it incumbent on the tribunal to avoid unnecessary formality, respond flexibly and ensure her effective participation in the proceedings in her absence by obtaining the evidence necessary…’ (paragraph 5). Also, the tribunal was probably wrong in the way it approached the question of evidence from the representative, given that this was likely to be capable of objective verification and not one where there was any risk of the evidence being compromised if was mediated through a representative.

In the event, the Secretary of State had subsequently been able to obtain the father’s national insurance contribution record and conceded that the father was indeed a ‘worker’ at the relevant time. Therefore the judge substituted a decision that the claimant had a right to reside as a ‘family member’ (paragraph 6).

Decision in brief

Tribunal obliged to explain in its reasons why it decided to proceed in those circumstances (paragraph 14) - absence of ESA 50 from papers did not necessarily prevent tribunal from considering appeal given tribunal's explanation that it could use the medical report and question the claimant at the hearing (paragraph 18)- delay of 15 months between date of decision and date of hearing did not give a real cause for concern and so no breach of Article 6 European Convention on Human Rights (HJ v SSWP [2009] UKUT 4 7 (AAC) applied) (paragraphs 25-26)

Decision in brief

This does not apply to incorrect/misleading general information on the official (GOV.UK) website - claimant thought on basis of information there that she could only claim online or by telephone and could not do so - but the requirement that the incorrect information was provided 'by an officer of' the DWP is to refer to 'the situation where a claimant is given information by a DWP officer as part of some specific interchange or transaction relevant to their personal circumstances' (paragraph 17)

Summary

This decision of a three-judge panel of the Upper Tribunal arises from a split in the caselaw about the interpretation of ‘social engagement’ in the mental health test of the work capability assessment (WCA). Ability regarding ‘social engagement’ is a feature of Activity 16 of the test for limited capability for work, and of Activity 13 of the test for limited capability for work-related activity. In KB v SSWP [2013] UKUT 152 (AAC), Judge Parker had held that ‘social engagement’ referred to any social engagement, including that with, for example, doctors and lawyers – ie, in business or professional contact. However, in the later AR v SSWP (ESA) [2013] UKUT 446 (AAC), Judge Ward disagreed with that, holding that ‘social engagement’ did not refer to contact for business or professional purposes, but rather was limited to that which was characterized by friendliness, geniality or companionship with others.

Mr Justice Charles, Judge Warren and Judge Rowland held that Judge Parker was correct in holding that in this context the word ‘social’ was simply a reference to ‘with other human beings’ (paragraph 28) – ie, that the engagement under consideration could include that for business and professional context. However, the nature and extent of the ‘engagement’ then had to be assessed and correctly applied. By way of background, it was accepted that the words involved were ordinary ones in common usage without precise meanings, and that it was important in such cases to look at the whole of a statutory definition with regard to the ‘underlying legislative purpose’ (paragraphs 5-9). That involved an assessment for the statutory purposes of the WCA, which was ‘to assess whether a person is able to engage with others for the purposes of work’. The panel agreed with comment of Judge Wikeley at paragraph19 of AS v SSWP (ESA) [2013] UKUT 587 (AAC) that the WCA activities and descriptors ‘do not exist in some sort of artificial or parallel universe, entirely divorced from the real world of work. They have to be applied on their own terms, but understood against the backdrop of the modern workplace’ (paragraph 16). Thus, in the present decision, the test of social engagement introduced ‘elements of reciprocity, give and take, initiation and response’ (paragraph 32).

In applying that, it was open to a decision maker to base his decision on an example or examples chosen from a wide range of situations (paragraph 34). The decision-making process will involve the finding of relevant facts (ie, regarding the social engagement which can or cannot be undertaken) and then the application of ‘value judgements’ which involve ‘addressing whether the contact with other people has the necessary nature and quality’, considering in each case ‘how the nature and quality of the communications and behaviour would impact on the ability of the individual to work and so whether or not it would be an effective barrier to him working’ (paragraphs 38-39). In the individual cases in the present decision, in one the First-tier Tribunal was considered to have erred in ‘not sufficiently addressing the quality of contact’ (paragraph 45); whereas in the other case, although the tribunal should have expressed itself in different terms, it was entitled to reach the conclusion it did ‘by reference to the claimant’s evidence to them and the manner in which he gave it’ (paragraph 58).

Summary

The claimant was subject to a 14 per cent reduction in her eligible rent on the basis of alleged under-occupation of her home – ie, because she was considered to have too many bedrooms under the so-called ‘bedroom tax’ rule at regulation B13 of the Housing Benefit Regulations 2006 (SI 2006 No.213). Her argument that the alleged spare bedroom should in fact be allowed because she required overnight care was rejected by the First-tier Tribunal. That was because the tribunal considered that she did not satisfy the requirement in the definition of a ‘person who requires overnight care’ at regulation 2(1) that the overnight carer was someone who stayed ‘regularly’ at her house, because the evidence was the stays were not at reasonably even intervals: the evidence was that the overnight carer was needed ‘on occasion’ and ‘when needed’.

Judge Rowland allowed the claimant’s further appeal and substituted a decision that her eligible rent was not to be reduced under regulation B13. The tribunal had erred in its definition of the word ‘regularly’ as it applied in this context. Rather than meaning at reasonably even intervals, the judge considered that ‘the word can also be used as a synonym for “habitually” or “customarily” or “commonly” and this seems a more sensible understanding of the word in the context of this legislative provision…’ (paragraph 13). Further, the judge said the test was whether the need for an overnight carer ‘arises often and steadily enough to require a bedroom to be kept for the purpose’, and that there was no requirement that the carer must be required on the majority of nights. That may be why the word ‘regularly’ was used: ‘it does not mean the same as “normally” or “ordinarily”. A bedroom may be required even if the help is required only on a minority of nights’ (paragraph 14).

Also, the judge rejected arguments by the local authority that an additional bedroom was not required because the carer could sleep in a room other than a bedroom, and that the fact that the claimant was entitled only to the middle rate of the care component of DLA showed that overnight care was not required.

On the facts, the carer slept in a bedroom and that the fact that portable beds could be erected elsewhere did not mean that there was not an additional bedroom, and the possibility of conversion of another room did not mean it was unreasonable for the carer to use the existing bedroom (paragraph 12). Regarding the rate of the DLA care component award, that could not be determinative of whether overnight care was required. There were several reasons why someone who regularly needed overnight care might not be getting the high rate, and the basis of the DLA award ‘may therefore be relevant evidence’ but cannot be conclusive’ (paragraph 18).