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Summary

In this decision Judge Jacobs decided that a self-employed person does not have a right to reside as a primary carer of a child in education. In so deciding, he applied the decision of the European Court of Justice (ECJ) in Secretary of State for Work and Pensions v Czop and Punakova [2012] EUECJ C-14 7 /11 and C-148/11 (6 September 2012) (Bulletin 230, p11).

The claimant was Norwegian. She came to the UK with her children who entered school on her arrival. She worked as a cleaner for a shop owner and, on the advice of HMRC, was registered as self-employed. Her claim for IS as a lone parent was refused on the basis that she did not have a right to reside. Her appeal to the First-tier Tribunal was dismissed.

Judge Jacobs dismissed the claimant's further appeal. If the claimant had been a 'worker' (ie, an employed person), she would have had a right to reside as the primary carer of her children who were in education (paragraph 11 ). But on the facts of this case (which were somewhat equivocal as to whether the claimant was a worker or a self-employed person), the claimant was self-employed (paragraph 19). Regarding that situation, the judge considered himself bound by the decision in Czop and Punakova. The ECJ in that case had not actually answered the question of whether the claimants had a right to reside because of concessions made by the United Kingdom regarding their cases. But the Court did decide that the child of a self-employed person did not have a right to education in the UK, as the relevant provision, at Article 12 of EC Regulation 1612/68, granted such a right only to the child of a worker. It therefore followed that the claimant in the present case could not have a right to reside based on such a right, meaning she could not have a right to reside as a primary carer of a child in education (paragraphs 30-31). The judge considered, but could not accept, arguments that this result was unlawful as it would deter the freedom of movement of self-employed people, and that it constituted discrimination against the self-employed. That was primarily because he considered that to accept such arguments would be 'contrary to the reasoning in Czop' and to 'bypass the clear and precise wording of Article 12 of Regulation 1612/68. I am bound by Czop to decide that that is not permissible' (paragraphs 36-37).

Note: permission to appeal to the Court of Appeal has been applied for. 
 

Summary

The claimant had severe brain injury following a road traffic accident which occurred when he was aged 32. He was refused the high rate of the mobility component of DLA. His entitlement depended on him satisfying the ‘severe mental impairment route’. The tribunal held that he did not satisfy the necessary condition of ‘arrested or incomplete physical development of the brain’ as applying the standard authority in R(DLA) 2/96, the human brain was fully developed before an adult reaches the age of 30.

Judge Wikeley held that the tribunal erred in law because it applied what he called the ‘age 30 cut-off rule’ (paragraph 3). The conditions for satisfying the severe mental impairment route to the high rate of the mobility component are set out in regulation 12(5) of the Social Security Disability Living Allowance Regulations 1991, SI 1991 No.2890. The requirement is that the claimant ‘suffers from a state of arrested development or incomplete physical development of the brain, which results in severe impairment of intelligence and social functioning.’ R(DLA) 2/96 had established the ‘age 30 cut-off rule’ and been accepted as the standard authority; but Judge Wikeley held that in the light of more recent scientific advice, that was no longer good law, and specifically that in his view ‘R(DLA) 2/96 should no longer be followed in so far as it holds or implies that regulation 12(5) embodies the age 30 cut-off rule’ (paragraph 41).

The reason for that was expert evidence in the form of a report (‘Human brain development: When does the human brain stop developing?’) by Professor Sarah-Jayne Blakemore, Royal Society Research Fellow and Professor of Cognitive Neuroscience at University College London. Her report was accepted as authoritative and expert by the Secretary of State (paragraph 30). The report holds (contrary to the evidence on which R(DLA) 2/06 was based) that the human brain retains a degree of ‘experience dependent plasticity throughout adulthood’ (eg, through learning of new skills) which may involve ‘physical development of the brain well into adulthood’ (paragraphs 34–6). Also, Professor Blakemore’s report provided evidence that ‘the physical volume of the brain is changing at least into the fourth decade of life, and perhaps into the 50s, with an increase in white matter and a decrease in grey matter’. As a result, the proposition that the brain attained full development before the age of 30 could no longer be maintained (paragraph 37). Professor Blakemore’s evidence was that the brain will have ceased developing in terms of grey and white matter ‘by the thirties or early forties in most people’ (paragraph 40). Attempting to summarise, the judge said, ‘it may not be unreasonable to say that experience-dependent plasticity occurs at the margins, and so a tribunal may reasonably focus on physical development of the brain in terms of white and grey matter. Obviously it will be wholly unrealistic to identify the specific age at which such changes cease in a particular individual…however a tribunal is entitled to apply the balance of probabilities’. In the present case the claimant was aged 32 at the time of his accident, which fell ‘very much toward the bottom end’ of the age range identified by Professor Blakemore, and so ‘it would be reasonable to say that the Appellant’s brain had not completely developed’ (paragraph 41).

Comment from CPAG

Previous refusals of the high rate based on the age 30 cut-off rule in R(DLA) 2/06 could now be revisited on supersession (where some DLA is in payment). Any arrears are likely to be limited by application of the ‘anti-test case rule’ at s27 Social Security Act 1998. An added complication is that in PIP transfer areas, a request to revisit a DLA award on this basis may well trigger transfer to PIP.

Summary

The claimant was a child aged 12. At the First-tier Tribunal, the tribunal decided that, applying a Practice Direction issued by the Senior President of Tribunals, a child should only be required to give evidence if the evidence was necessary and her/his welfare would not be prejudiced. The tribunal considered that oral evidence from the claimant's mother would be sufficient, and that it would not be appropriate for the claimant to listen to adults discussing her problems, and that her presence might inhibit discussion of the issues. The appeal was dismissed.

Judge Jacobs set the decision aside and remitted the case to a new tribunal. In so doing, he considered the tribunal's decision that the claimant should not be allowed to give evidence and should not be allowed to be present in the tribunal room. That involved consideration of a reported decision on the approach to child witnesses, R(DLA) 3/06, and the Practice Direction relied on by the tribunal, which was issued on 30 October 2008. The judge held that the tribunal had erred in a number of ways, including making no attempt to find out the claimant's views on giving evidence, or to how its concerns might be alleviated by the manner in which the claimant gave her evidence, contrary to R(DLA) 3/06, and in relying on the part of the Practice Direction that dealt with requiring a witness to attend, when in this case there was no question of compulsion (paragraph 21). Also, however, the tribunal erred in failing to take account of 'the claimant's right to autonomy and to take part in decision making about her entitlement to benefit', thus considering only her welfare and so failing to consider that 'denying a child the right to participate can be harmful in itself' (paragraph 22).

In so holding, the judge considered that R(DLA) 3/06 and the Practice Direction now had to be applied in the context of subsequent caselaw from the family courts, namely Mabon v Mabon [2005] Fam 366 and RCW (Children) (Care Proceedings: evidence) [2010] WLR 701 (paragraphs 12-14). Applying the caselaw from the family courts, the judge held that although R(DLA) 3/06 remained correct in pointing out concerns about child welfare and reliability of evidence in child witness cases, the guidance given to tribunals at paragraph 58 of the decision failed to give proper significance to recognising the relevance of the maturity, understanding and wishes of the child (paragraph 17). Similarly, the Practice Direction, although still sound regarding the approach to requiring a child to give evidence, was potentially in conflict with the family cases regarding allowing a child to do so, in so far as it 'provides that a tribunal must decline to hear evidence from a child when it would prejudice the child's welfare'. Such conflict could be reconciled by taking account of the child's age, maturity and wishes in assessing the impact that giving evidence would have (paragraph 18)

Summary

The claimant lived in England, but in 2009 (having taken advice from the HMRC helpline about temporary absence) she took up self-employed work in Spain. Two of her children, aged 18 and 20, remained in her home. The claimant returned frequently from Spain so as to ensure that she was not absent for more than eight weeks, staying in her house for a couple of days each time, or longer at Christmas and Easter. She eventually returned to the UK, started work here in August 2010, and stayed thereafter. However, although she was awarded child tax credit for the whole of the tax year 2010/11, she was refused working tax credit (WTC) for the period that she was working in Spain. The First-tier Tribunal dismissed her appeal on the basis that she could not be treated as resident in the UK while living and working in Spain – although the judge was unaware of the claimant’s returns to the UK during that period.

Judge Rowland allowed the claimant’s further appeal, and remitted the case to a new tribunal. It was arguable that the claimant remained ordinarily resident in the UK while she was working in Spain, and that she remained so under a rule (at regulation 4(1)(a) of the Tax Credits (Residence) Regulations 2003, SI 2003 No.654) that allowed such a person to be treated as being in the UK during the first eight weeks of a temporary absence (paragraph 5). Also, regarding HMRC’s submission to the First-tier Tribunal that for WTC employment had to be in the UK, the judge could see nothing in the relevant rule (at regulation 4 of the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002, No.2005) that the work had to be in the UK.

While working in Spain, the claimant was ‘doubtless resident in Spain and quite probably ordinarily resident there’, but it did not follow that she therefore could not also have been ordinarily resident in the UK (paragraph 15). The judge did not accept HMRC’s argument that because the claimant’s periods of presence in the UK appear to have been only ‘visits’ and were for holidays and meeting the requirements of regulation 4(1)(a), they cannot be treated (as required as part of the accepted approach to ordinary residence) as having been for the ‘settled purposes’ of her life. The point that it did meet this requirement was, for the judge, at least arguable (paragraph 16). Had the First-tier Tribunal judge been provided with all the relevant documents relating to the case in their possession (as required under rule 24(4)(b) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 No.2685) he may not have fallen into the error of treating the claimant’s case as hopeless. That he did not have all the relevant information was a procedural defect that gave rise to unfairness, especially as the claimant was unrepresented (paragraph 20).

Summary

In this decision the European Court of Justice (ECJ) held that a woman who had stopped work in the late stages of pregnancy retained her worker status. In so holding, it in effect disapproved, on referral from the UK Supreme Court (Bulletin 231, p10), earlier domestic decisions to the contrary, though the case does now return to the Supreme Court.

The claimant was a French national who came to the UK and worked mainly as a teaching assistant for 11 months, before commencing studies. Later (following time as a student and registering with an employment agency), she did some work in nursery schools. However, she stopped that work on the grounds that, being six months pregnant, it was too strenuous for her. Her claim for income support was rejected on the grounds that she had lost her status as a worker and did not have the right to reside. Her case ended up before the UK Supreme Court, who made a reference to the ECJ asking, in essence, whether under EU law a woman who gives up work, or seeking work, because of the physical constraints of the late stages of pregnancy and the aftermath of childbirth, retains the status of 'worker'.

The ECJ answered in the affirmative. Specifically, Article 45 of the Treaty on the Functioning of the European Union 'must be interpreted as meaning that a woman who gives up work, or seeking work, because of the physical constraints of the late stages of pregnancy and the aftermath of childbirth retains the status of 'worker', within the meaning of that article, provided she returns to work or finds another job within a reasonable period after the birth of her child' (paragraph 46). In order to decide whether that latter period was reasonable, the national court should 'take account of all the specific circumstances of the case in the main proceedings and the applicable national rules on the duration of maternity leave... ' (paragraph 42).

Note: see also the article in Bulletin 241, p6. 

Summary

The claimant failed the work capability assessment and appealed. Dismissing his appeal, the First-tier Tribunal dealt with whether or not he should be treated as satisfying the assessment by virtue of the ‘substantial risk’ exceptional circumstance at regulation 29 of the Employment and Support Allowance Regulations 2008 No.794. In holding that he should not, the tribunal said: ‘We note he is computer literate, it may be that working from home most of the time would be a suitable option for him.’

Allowing the claimant’s further appeal and remitting the case to be heard by a new tribunal, Judge Wikeley held that the tribunal had erred in not considering regulation 29 properly and in particular by ‘relying on the possible prospect of a job with home-working’ (paragraph 8). The proper consideration of regulation 29 required following the procedure set out in Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42 (reported as R(IB) 2/09). That involved considering the process of getting to and from work (paragraph 4). The Secretary of State submitted that the tribunal had erred as Charlton did not envisage considering home working in this context, and Judge Wikeley agreed (paragraphs 6 and 7).

For the judge, ‘to say that a claimant cannot take advantage of regulation 29(2)(b) because they could always be able to do a job working from home would simply be to deprive the statutory provision of any real purpose for large number of claimants’; that this was not intended was supported by the amendment to the regulation from 28 January 2013 to provide that it did not apply where the risk ‘could be reduced by a significant amount by… reasonable adjustments being made in the claimant’s workplace’ (paragraphs 8 and 9).

Decision in brief

Social fund sure start maternity grant - restriction to one child under 2011 amendment regulations - not in breach of public sector equality duty in Race Relations Act 1976 - principles regarding public sector equality duty in Bracking v SSWP [2013] EWCA Civ 1345 applied (paragraphs 11-13) - data on whether there was a discriminatory effect appeared to show a discriminatory effect (regarding Pakistani or Bangladeshi families) but was inconclusive (paragraph 47) - was 'legitimate to take account' of financial effect of delaying rule change to seek further data, and the choice to do so was one for government ministers, not a judge (paragraphs 49-50) - Secretary of State satisfied legal duties by carrying out equality impact statements, considering the available data and responding to Social Security Advisory Committee report (paragraph 51) - however, both First-tier and Upper Tribunal are able to consider if legal duty was satisfied - ie, if regulations are ultra vires, including on basis that they conflict with rights under other primary legislation (paragraphs 16, 20-21)

Decision in brief

Where a separated parent who has been held not to be responsible for the child is refused child tax credit (CTC) and appeals, the parent awarded CTC is not a party to the appeal, has no right to be heard as a non-party, or to adduce evidence or argue the case, and is not bound by the result – if the tribunal awards CTC to the other parent, HMRC must then see if it has the power to revisit the initial decision, but otherwise there will be awards to both parents when only one award can be made – under rule 9(2) of the Tribunal Procedure Rules, a tribunal can now add a person to the proceedings as a respondent – the result would be to determine the appeal so as to bind both parents (ie, result in only one award) – a tribunal satisfied that a decision under appeal should be revisited should add the other parent as a respondent to the appeal, even if the initially successful parent does not want to be so added

Decision in brief

'Normally living with' rule not unlawful: definition of who is responsible for a child, and so entitled to child amounts, lawfully limited to those with whom the child is normally living, meaning the person with whom the child spends more time than with anyone else - discrimination against men as 'substantial minority carers' caused by regulation 20(1) and (3) of Housing Benefit Regulations 2006 SI No.213 justified as not 'manifestly without reasonable foundation' - reasoning regarding similar effect in shared care cases set out in TD v SSWP and London Borough of Richmond-Upon-Thames (HB) [2013] UKUT 642 (AAC) also applies here

Decision in brief

Regulation 76(2) Housing Benefit Regulations 2006 – where claimant moves in to new tenancy during the benefit week and claims in that week, is entitled from that benefit week rather than (as in other cases) from the following benefit week – but not automatically entitled from the start of the benefit week – only entitled for days in which the claimant occupies the dwelling as his home – ie, from the date of moving in

Summary

The claimant had mental health problems. She failed the work capability assessment for employment and support allowance (ESA). The First-tier Tribunal refused to adjourn to allow the claimant to seek representation, relying on the number of previous requests for adjournment the claimant had made, and the fact that she had taken no steps to obtain representation until about 10 days before the hearing.

Judge Sir Crispin Agnew of Lochnaw Bt QC allowed the claimant’s further appeal and referred the case for rehearing by a new tribunal. The tribunal had erred in incorrectly approaching the question of whether there should have been an adjournment to allow the claimant to obtain representation. Although at the time of the decision it was correct that, as held in CSIB/848/1997, there was no obligation to adjourn for this reason the situation had been changed by the decision of the Court of Appeal in Secretary of State for Work and Pensions v MM and another [2013] EWCA Civ 1565 (4 December 2012). The judge considered that that decision required the approach to the issue of whether to offer such an adjournment to a claimant with mental health issues (ie, in the context of an appeal about the assessment for ESA) to be reconsidered (paragraph 3).

In MM, said the judge, the court ‘accepted that in the ESA process, including attending for the ESA assessment [the ESA85] and in the tribunal hearing that claimants with mental health problems suffered disadvantage. If there is a disadvantage to a person with a protected characteristic under the Equalities Act 2010, then a public authority, which includes a tribunal, has to consider whether a reasonable adjustment is required. Against that background, I am of the opinion that the law as expressed in CSIB/848/97, and the general discretion of a tribunal as to whether or not to allow an adjournment requires to be considered’ (paragraph 5). Further, the judge held that, ‘where a claimant with mental health problems asked for an adjournment in order to instruct a representative or for some other reason, that the tribunal in considering that request is required to have regard to the fact that such a claimant is at a disadvantage for one or more of the reasons found in MM and to assess the scope of that disadvantage for the particular claimant before making a decision on whether or not to grant the adjournment’ (paragraph 6). He also noted that one of the grounds of disadvantage noted in MM was ‘problems with self-motivation because of anxiety and depression which may prevent them approaching professionals for help and assistance, and that might explain why the claimant had not sought representation until shortly before the hearing’ (paragraph 7). The new tribunal was to have regard to MM and also consider whether or not to seek further medical evidence if additional evidence has not been produced (paragraph 8).

Comment from CPAG

The ultimate outcome of MM, which may involve the Secretary of State making adjustments to the ESA assessment process for people with mental health problems, is still awaited. The present decision is not authority that tribunals in mental health cases must always adjourn to allow representation or to get further evidence; however, it is authority that they must consider that in the light of the claimant’s disadvantage in the current ESA process.

Summary

The claimant was in a relationship and had a tenancy agreement with his partner. But subsequently the female partner moved to London to work for at least two years, where she had a tenancy in another property, was on the electoral roll and paid rent, council tax and utility bills. The partners visited each other at weekends. The claimant was refused HB on the basis that he and his partner counted as a ‘couple’, and that following aggregation of their resources his income was too high. His appeal on the basis that he was not a member of a couple for benefit purposes was upheld by the First-tier Tribunal; the local authority appealed to the Upper Tribunal.

Dismissing the further appeal, Judge Levenson held that the claimant was to be treated as a single person, on the basis that he was living in a separate household to his partner. The local authority argued that they were merely temporarily living in different households as they spent the weekends together and so there was no absence that was likely to exceed 52 weeks (regulation 21 of the Housing Benefit Regulations 2006, SI 2006 No.213). But the judge dismissed that argument, as regulation 21 ‘does not even begin to apply’ unless (in the absence of polygamy) there is a couple, and here there was no couple as the partners were now in different households: ‘regulation 21 is about how long the status of being in the same household last, but only once it has been established that people are in fact in the same household’ (paragraph 25).

The relevant rule regarding the definition of a couple for housing benefit was at section 123(1)(b) of the Social Security Contributions and Benefit Act 1992, which provides that a ‘couple’ means (for unmarried couples of different sexes) ‘a man and woman who are not married to each other but are living together as husband and wife otherwise than in prescribed circumstances’. Regarding living together as husband and wife, the traditional starting point was the decision in Crake v Supplementary Benefits Commission [1982] 1 All ER 498, which set out ‘admirable signposts’, including whether they are members of the same household (paragraphs 14–15). Reviewing subsequent authority, Judge Levenson noted that ‘it has never really been doubted that a man and a woman who are not married to each other cannot be living together as husband and wife unless they are at least together in the same household’ (paragraph 16, underlining in the original). The subsequent authority included the consensus that a person cannot at the same time be a member of more than one household; on the facts of the present case, as the partners were not living in the same household, they were not a couple for the purposes of HB (paragraph 26).

Comment from CPAG

This decision does not refer to recent caselaw about the importance of the emotional aspect of the relationship, in addition to the Crake v Supplementary Benefits Commission signposts (see the article in Bulletin 240, p4); however, given the absence of a shared household in this case (which on the facts seems to have arisen at the point the female partner left to live elsewhere for over 52 weeks), that will not have altered the outcome.