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Summary

The claimant was Greek and came to the UK in about 2006. He never worked in the UK and never paid national insurance here. He received a Greek retirement pension, but not a UK retirement pension. He got AA under the special rules. The claim was refused on the basis that the UK was not the competent state to pay sickness benefits; but the First-tier Tribunal allowed his appeal on the basis that the UK was the competent state.

Judge Jacobs allowed the Secretary of State’s further appeal, and substituted a decision that the claimant was not entitled to AA, because that is a sickness benefit and, on the facts of this case, the UK was not the competent state. The Secretary of State was obliged to pass the claimant’s claim to the Greek authorities. As part of his decision, the judge rejected an argument that AA was an invalidity benefit rather than a sickness benefit for the purpose of EC Regulation 883/2004 (paragraphs 9–10). He also rejected argument that the fact that the claimant had a permanent right to reside in the UK meant the refusal of AA was disproportionate and discriminatory (paragraphs 11–12), and that a claim for AA under the special rules was exempt from the requirement that the UK was the competent state (paragraphs 13–20).

As to who was the competent state, the starting point in this case was Article 11(3)(e) of Regulation 883/2004 (the Article in effect ensures that there can only be one competent state). Subparagraph (3)(e) provides that where the preceding subparagraphs of the Article do not apply, the competent state was the state of residence. Judge Jacobs said that in his earlier decision in CG/4143/2012 he had wrongly treated Article 11(3)(e) as subject only to the following Articles 12–16, whereas now he agreed with Judge White who had held in SL v SSWP [2014] UKUT 108 (AAC) that it was also subject to subsequent Articles (paragraphs 21–24). Applying that, on the facts of the present case: (1) Article 29 provides that cash benefits for pensioners were to be paid by the state responsible for ‘the cost of benefits in kind’ to the claimant; that ‘essentially means health care’ (paragraph 24); (2) although the claimant was entitled to healthcare in the UK under the NHS, Article 25 provides that the cost of benefits in kind to someone getting a retirement pension shall be borne by the state competent for her/his pension; so that in this case, as Greece is paying the claimant a pension, Greece was also responsible for the costs of benefits in kind and, therefore, also for cash benefits including AA (paragraphs 24–26). However, although the Secretary of State was obliged to refuse the claim, he should also (under Article 81) forward the claim without delay to the correct competent state (paragraph 28). If there is evidence of a dispute from the other state about being the competent state, he should instead deal with it as described in the judge’s earlier decision in SSWP v HR (AA) [2014] UKUT 571 (AAC) (paragraph 30) – ie, under Article 6 of Regulation 987/2009, which provides for provisional entitlement pending resolution of the dispute.

Summary

This decision of a three-judge panel of the Upper Tribunal is concerned with a number of issues arising out of the challenges about various work programmes and associated sanction rules, that ended up with the decision of the Supreme Court in R (Reilly and Wilson) v Secretary of State for Work and Pensions [2013] UKDC 68; [2014] AC 453 (see the article in Welfare Rights Bulletin 237). That decision concerned the lawfulness of various work programmes under the Jobseeker’s Allowance (Employment, Skills and Enterprise) Regulations 2011 No.917 (‘the 2011 Regulations’). In that decision, the 2011 regulations were held to be unlawful. In the present decision, Mr Justice Charles and Judges Rowland and Wright were concerned with whether the retrospective validation of the 2011 Regulations made in the Jobseekers (Back to Work Schemes) Act 2013 was lawful in all cases. Also, the judges were concerned with whether, following the decision of the Supreme Court, there was in any mandatory scheme a so-called ‘prior information requirement’, under which claimants were required to be sent information about work programmes before they could be required to participate.

By a majority, the judges held that the 2013 Act did not apply (ie, so as to retrospectively validate the 2011 Regulations and sanctions applied under them) in cases where an appeal had already been brought before the First-tier Tribunal before the Act came into force on 26 March 2013 (paragraph 13(i) and (iii)). That was both as a matter of ordinary statutory construction and, if that was wrong, because the Act had to be read under the Human Rights Act 1998 as not applying in such cases, in order to preserve the right to a fair trial. On that last point, the judges had reference here to the decision of the High Court in Reilly (No.2) and Hewstone v Secretary of State for Work and Pensions [2014] EWHC 2182 (Admin) (4 July 2014), which although from a coordinate (not superior) jurisdiction to the Upper Tribunal, the judges considered they ought to follow (paragraph 37). However, the judges also immediately granted the Secretary of State leave to appeal on these points.

In an unanimous finding, the judges also held that in a scheme which is mandatory, both at referral stage and once actually on it (such as the Work Programme and the Community Action Programme), there is no ‘prior information requirement’ for information before requirement to participate, and the Supreme Court was considered to have decided this question wrongly (paragraph 13(vi)). The judges also held unanimously that the correct reading of the 2011 Regulations was that a claimant considered to have failed to participate had to have shown ‘good cause’ within five working days of being notified of her/his failure (paragraph 13(vii)).

Summary

The claimant had a number of health conditions including asthma, plantar fasciitis and plantar fibromatosis. She was awarded the mobility component of personal independence payment at the standard rate, but was refused the daily living component. Her appeal to the First-tier Tribunal disputed the refusal of the daily living component and argued that she should have been awarded the mobility component at the enhanced rate. The tribunal warned the claimant that the existing award of the mobility component ‘may be at risk’ and suggested that she may wish to consider withdrawing or obtaining representation; she declined to do either and the tribunal decided both to remove the award of the mobility component and to uphold the refusal of the daily living component.

Judge Bano allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred in making inadequate findings of fact and giving inadequate reasons for its decision.

The judge also commented on the tribunal’s making of a less favourable decision. The ‘pitfalls’ of doing this had been pointed out in a number of disability living allowance decisions. For the judge, the problems could arise even where, as here, the issue was raised by the appeal and the claimant is given an opportunity to consider whether to proceed. The claimant will ‘not have had advance notice of the issue’, and in R(IB) 2/04 it was held that claimant had to be given sufficient notice so as to enable her/him to prepare a case on the new issue. In the present case, the judge referred in particular to CDLA/884/2008 where it was held that there was ‘powerful reason’ for tribunals not to make a less favourable decision than that being challenged, ‘except in the most obvious cases…or after an appropriate adjournment’ (cited at paragraph 7). In the present case, the judge could see ‘no reason’ why the tribunal would have wanted to consider if the award of the mobility component was over generous: the claimant’s case for an increase was reasonable and the healthcare professional report was fully reasoned, so that the tribunal’s decision to consider on its own initiative whether to remove the mobility award ‘led to precisely the kind of unprompted error envisaged in CDLA/884/2008’ (paragraph 8).

Comment from CPAG

This decision adds to the weight of argument that tribunals should be very cautious before making a less-favourable decision. Where so minded, an offer of an adjournment may be very important except in the ‘most obvious’ cases. But it should be borne in mind that other decisions have emphasised the tribunal’s basic discretionary right to consider any part of a decision under appeal – see, for example, AP-H v SSWP (DLA) [2010] UKUT 183 (AAC).

Summary

The claimant's PIP appeal was dismissed by the First-tier Tribunal. In its statement of reasons, the tribunal recorded that it had relied in part on observations of the appellant during the hearing. These included that during the hearing the appellant: 'turned to his partner infrequently for assistance and displayed a very high level of concentration, logical thought and good communication skills.' Although he had been upset for a short time at the start of the hearing, he had engaged well thereafter. The tribunal also recorded that he was wearing a top which, 'in the view of the medical member of the Tribunal, showed he had good muscle tone' and exercised regularly.

Judge Markus QC allowed the claimant's further appeal and remitted the case to a new tribunal. The tribunal had erred in not putting its observations about his ability during the hearing to him, so that he could comment. It had therefore breached the requirements for a fair hearing. In so holding, the judge applied the decision of Commissioner (as he then was) Jacobs in R(DLA) 8/06. There, he held that a tribunal may take into account observations made at a hearing, but that a failure. to allow a claimant to comment on those observations 'may' be a breach of the tribunal's inquisitorial duty or to ensure a fair hearing. An observation used 'purely as a confirmation of a conclusion that the tribunal would have reached anyway' did not need to be put to the appellant; but 'if an observation is one of the factors taken into account in reaching a conclusion', any failure in the tribunal's inquisitorial duty or violation of the right to a fair hearing is wrong in law (paragraph 11 ).

Applying those principles to the facts in the current case, Judge Markus held that there was no need for the tribunal to have put its observations about the claimant's muscle tone to him, as it had in any event also found that he attended the gym (paragraph 15). However, it should have put to the appellant its observations about his ability during the hearing, as those observations informed the tribunal's conclusions and were a significant factor which the tribunal took into account (paragraphs 17-18). The Secretary of State's argument that the appellant's presentation at the hearing was 'available for all to see' and did not therefore need to be put to him was rejected; the tribunal's observations were 'significantly based on its own perception or interpretation of the Appellant's conduct and the Appellant was unable to comment on that' (paragraph 18).

Summary

The claimant suffered from a prolapsed disc in her back and irritable bowel syndrome. She had mobility problems and reported that she could soil herself as she was sometimes unable to reach a toilet in time. Her appeal to the First-tier Tribunal was dismissed, the tribunal upholding the decision that she scored no points in the work capability assessment. Her further appeal included the question as to whether the tribunal had erred in the way in which it dealt with the relationship between her mobility problems and the application of descriptor 9(b) of the assessment, for being at risk of loss of control ‘if not able to reach a toilet quickly’.

Judge Grey allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred in the way that treated the claimant’s possible entitlement to points under descriptor 9. Specifically, it had erred in adopting the report of the qualified medical practitioner which was either based on a view that the claimant’s difficulties should be discounted because of their link to restricted mobility, or failed to elicit sufficient evidence of the claimant’s difficulties (paragraphs 24–27).

In applying descriptor 9, it was wrong to discount any mobilising difficulties that the claimant has. As held by Judge Mark in EM v SSWP [2014] UKUT 34 (AAC), the effect of the loss of control set out in the descriptor had to be considered in the light of the claimant’s personal circumstances. If limited mobility meant that the claimant is more adversely affected, then that should be taken account of. Judge Grey said: ‘It should make no difference whether soiling may occur because an individual’s restricted mobility slows down the process of reaching a toilet, or because the loss of control is relatively rapid. The effect on the individual and their ability is the same’ (paragraph 19). The judge also noted that this is now accepted in official guidance in the DWP’s Medical Services Handbook (paragraph 21).

Decision in brief

In light of decision in IM v SSWP (ESA) [2014] UKUT 412 (AAC), tribunal fell short in relying on assumption that the jobcentre would tailor work-related activity in light of claimant’s mental health problem – needed evidence of the types of work-related activity in the claimant’s area – claimant entitled to carer’s allowance and so could not legally be required to undertake work-related activity in any case – but that did not mean tribunal should not consider regulation 35 and substantial risk

Decision in brief

Where the family member was in a ‘waiting period’ for income-based jobseeker’s allowance on the date of death – still counts as having an award of a qualifying benefit – is not entitled to be paid but still has an award

Summary

The claimant was unable to walk but did have some ability to use a manual wheelchair, albeit not over uneven ground outdoors. However, in the mobilising descriptor for the work capability assessment, he scored only nine points (under descriptor 1(b)) for inability to mount or descend two steps. That was adopted by the First-tier Tribunal. The claimant’s further appeal included an argument that he should have scored 15 points under descriptor 1(a)(ii) for inability to ‘repeatedly mobilise 50 metres within a reasonable timescale…’, as that did not specify that the test only applied on level ground. The Secretary of State argued that the tribunal had not erred in reading into the test the condition that it applied on level ground, as the test at subparagraph (ii) followed on from that in subparagraph (i), and that did specifically refer to an inability to mobilise ‘on level ground’.

Although Judge White considered that the tribunal had erred for making inadequate findings of fact and giving inadequate reasons (and therefore remitted the case to a fresh tribunal), he held that it had not erred in its approach to descriptor 1(a)(ii). He held that the Secretary of State must be right that the test there applied on level ground, on the basis that the ‘only possible interpretation’ must be that it is on the same terms as the primary test at 1(a)(i), which does specify level ground (paragraph 30).

The judge also reproduced some evidence, submitted by the Secretary of State, about the provision of wheelchairs under the Access to Work scheme. Although not relevant on the facts of the current case (where the appellant already had his own wheelchair), the judge thought it worthwhile to do this, given the comments of the Upper Tribunal in SI v SSWP (ESA) [2014] UKUT 308 (AAC) [now reported as [2015] AACR 5] that if the Secretary of State was able to say that any claimant otherwise without access to a manual wheelchair could get one via the Access to Work scheme where necessary for employment, the question of availability of manual wheelchairs would cease to be an issue in most cases. However, in the present case the Secretary of State said: ‘The UT judges referred to the Access to Work Scheme as a possible source of assistance with a manual wheelchair. However, that is not the case…The Scheme would not normally be used to fund purchase of a manual wheelchair, as it is expected that this would be provided by the appropriate wheelchair services in the area…However it could fund the extra costs of a specialist wheelchair if appropriate. Where assistance with travel to work is required, and no other method of transport is available, the Scheme might assist with the cost of taxis.’

Comment from CPAG

The Secretary of State’s evidence about the Access to Work scheme would appear to make it more likely that the availability of manual wheelchairs may be an issue in appropriate cases, where there is no evidence of the wheelchair being provided via other schemes.

Summary

The claimants were both subject to a reduction in their eligible rent under the so-called ‘bedroom tax’ – ie, for alleged ‘under-occupation’ of accommodation, as provided for by regulation B13 of the Housing Benefit Regulations 2006 No.213. Their appeals to the First-tier Tribunal were successful, on the grounds that the rooms that were the subject of the reduction could not be classified as bedrooms because their floor areas were not large enough. In particular, the tribunal accepted arguments based on the Housing (Scotland) Act 1987 relating to overcrowding, which on the facts would have meant that rooms were too small for occupation as a bedroom by an adult.

In the Upper Tribunal, a three-judge panel allowed the Secretary of State’s further appeals. The tribunal had erred in giving inadequate reasons for the decisions (paragraph 48). Also, however, the tribunal had erred in its use as a determinative test of the statutory overcrowding provisions of the Housing (Scotland) Act 1987 and Annex C of Housing Benefit Circular A4/2012 insofar as it allegedly supported such an approach. The tribunal had been wrong in law to hold that ‘under-occupancy’ could be seen as the ‘flipside of overcrowding’, as the 1987 Act and regulation B13 of the Housing Benefit Regulations were very different in intent and operation. The tribunal had also erred in holding that if parliament had intended that the overcrowding provisions be ignored, the legislation would have said so explicitly – that was counter to the well-established approach that when parliament uses familiar and ordinary English words (such as ‘bedroom’) it does not define them, and it intended to allow decision makers to take account of ‘all relevant circumstances on a case by case basis’ (paragraphs 50–54).

However, the judges did not go so far as to say that the size of a room was not relevant to the judgement of whether it was a bedroom, or that regard could not be had to the overcrowding provisions: they could act as ‘cross-checks’ or ‘warning bells’ that the room may be too small (paragraph 55). The judges considered that the correct approach was to consider use, or potential use, of the room as a bedroom by an adult or a child, that the choices of how the room should actually be used was unlikely to have an impact, and that the test was ‘essentially the assessment of a property when vacant; rather than how it is actually used from time to time’. However, issues could arise where a room had been converted into bathroom or wet-room and from questions like what should be the living/dining areas of a property (paragraphs 27–9). The starting point was the description by the original and later landlords of the room. Also, factors including size, access, natural and electric lighting, ventilation and privacy were all relevant. The argument advanced by the Secretary of State that a bedroom was any room big enough to accommodate a single bed even if it would touch a wall or an outward opening door was ‘absurd’ (paragraphs 30–33).

Summary

The claimant became entitled to contributory ESA in 2009. That award was terminated from 26 August 2011 following a decision that she did not have limited capability for work. The claimant appealed against that decision, got an award of contributory ESA pending the appeal, and on 22 March 2012 a First-tier Tribunal (‘the first tribunal’) allowed that appeal, which held both that she had limited capability for work and limited capability for work-related activity – ie, was entitled to the support component of ESA. In April 2012 the DWP (apparently unaware of the decision of the first tribunal) notified the claimant that her award of contributory ESA would terminate on 30 April 2012, because of the time-limiting provisions. The claimant ‘claimed’ income-related ESA using the enclosed Form ESA 3 but, although her contributory ESA was reinstated when it was acknowledged that she was in the support group, arrears of income-related ESA were awarded only from 30 April 2012.

The claimant appealed, on the basis that ESA was one benefit, and that the requirement to make separate ‘claims’ of the income-related and contributory allowances was merely an administrative convenience. The First-tier Tribunal (‘the second tribunal’) dismissed that argument and held that entitlement to income-related ESA arose only from the date of the alleged ‘claim’ of 30 April 2012.

Judge Rowland allowed the claimant’s further appeal. The second tribunal had erred in law in holding that ESA was not a single benefit, holding that separate claims for income-related and contributory ESA were necessary, and in not recognising that the decision of the first tribunal meant that the claimant’s award of ESA should have been increased so as to award income-related ESA from 26 August 2011 (paragraphs 12–17). Specifically, held the judge, ‘if a claimant is entitled to both a contributory allowance and an income-related allowance, there is still only one amount of employment and support allowance payable…’ (paragraph 12); also, the practice of giving claimants an opportunity to ‘claim’ either both or only one allowances merely provided the opportunity (if only one were chosen) to waive the need to consider both allowances, and ‘the legislation does not actually contemplate there being a claim for only one element of the allowance’ (paragraph 13). In this case, the effect of the decision of the first tribunal on 22 March 2012 was that the claimant was entitled to the support component in both contributory and income-related ESA, and regarding the latter, that meant she was entitled to an enhanced disability premium (paragraph 20). As that decision was effective from 26 August 2011, the inclusion of the premium had the effect that she was entitled to income-related ESA as well as contributory ESA from that date (paragraphs 18 and 21).

Summary

In these joined cases before a three-judge panel of the Upper Tribunal, the main issue concerned the weight to be given to an official medical report about the work capability assessment, where that report was written by a physiotherapist but concerned the mental health descriptors. In particular, the judges considered the correctness of the approach taken by Judge Mark in JH v SSWP (ESA) [2013] UKUT 269, where he held that in such a case the opinions of the physiotherapist had ‘no probative value whatsoever’ – ie, were automatically to be accorded little or no weight by the First-tier Tribunal.

Mr Justice Charles, Judge Lane and Judge Knowles QC held that those comments of Judge Mark in JH v SSWP were actually obiter (not necessary to the main reasoning of the decision) but that, in any case, they were wrong to the extent that they purported to create a rule of law or a starting point that official evidence from physiotherapists in a mental health case were of no probative value or likely to have little probative value and were to be accorded little or no weight (paragraph 33). In their reasons, the judges referred to the fact that the statutory scheme authorised ‘healthcare professionals’, which include physiotherapists, to carry out assessments, and that tribunals had to be free to evaluate evidence without being fettered in the way that the comments in JH v SSWP had suggested (paragraphs 34 and 37). Also, the training provided to all healthcare professionals included mental health assessment, and although that training was subject to review, the independent reviews of the work capability assessment had not criticised the performance of physiotherapists in mental health cases (paragraph 36).

More generally, the judges said that in assessing the weight of any medical report, the First-tier Tribunal should consider the level of the author’s expertise and the knowledge of the claimant possessed by the author (paragraph 38). In the present cases, the tribunal had erred in giving no reasons for explaining why it had attached no weight to evidence from the GP of one of the claimants, and in failing to consider the case ‘in the round’ – ie, by considering how an award of points in one descriptor might suggest that points should also be scored in other descriptor (paragraphs 44–47). Also, the tribunal had erred in treating the claimant’s engagement in the ESA claim process and the tribunal hearing as evidence in itself that she could cope with social engagement: that ‘snapshot approach’ ignored evidence other evidence and whether the claimant could cope with social engagement with ‘reasonable regularity’ (paragraph 56).

Summary

The claimant was in receipt of child benefit. She had been instructed in the payment advice notes that she needed to advise HMRC when her son left full-time education. However, when her son left full-time education in January 2012 she did not do so, as she had subsequently been told by an ‘under 18s adviser’ at her local Jobcentre Plus office that she did not need to, as she would remain entitled to child benefit until May 2012. HMRC eventually decided that she had been overpaid child benefit in March and April 2012, and that the overpayment was recoverable from her as it was caused by her failure to disclose to it the fact of her son leaving education. The First-tier Tribunal dismissed the claimant’s appeal, holding that the payment advice letter required disclosure to HMRC, and disclosure to Jobcentre Plus did not suffice.

Judge Wright upheld the claimant’s further appeal, substituting a decision that the overpayment was not recoverable from the claimant, as she had not failed to disclose. That was because, as erroneously overlooked by the tribunal, the instruction to disclose to HMRC had been qualified by the subsequent advice from the under 18s adviser at the Jobcentre. On the facts of this case, which included that HMRC did not dispute that the adviser was a person with authority to make such a qualification, that was sufficient to remove the duty to disclose to HMRC.

Regarding the possibility of qualification of the instructions in the payment advice notes, the judge had in mind R(A) 2/06 and the decision of Upper Tribunal Judge Ward in WW v HMRC (CHB) [2011] UKUT 11 (AAC). The tribunal had erred in failing to consider this. The claimant, having been given the instructions in the payment advice notes, had originally been under an obligation to disclose to HMRC, under regulation 23(2) of the Child Benefit and Guardian’s Allowance (Administration) Regulations 2003 No.492. The judge accepted that that obligation required disclosure to HMRC, and ordinarily failure to comply with that would lead to a failure to disclose (paragraph 13). However (as pointed out in WW v HMRC (CHB)), that obligation could be varied by oral representations by those with authority, or the apparent authority, to do so (paragraph 15). On the facts of this case, which included HMRC not disputing that the under 18s adviser had the authority to advise the claimant about her child benefit entitlement and when disclosure to HMRC need not be made, the judge accepted that the advice at the jobcentre acted to qualify the instruction given to the claimant in the payment advice notes, to one that she did not need to notify HMRC of her son leaving full time education until the end of May 2012 – which she did do. Consequently, she did not breach the modified obligation she was under, and the overpayment was not recoverable from her (paragraph 16).