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Summary

The claimant was refused bereavement benefit on the basis that her marriage to the deceased husband in 1986 (in the UK) was not valid. That was because he was considered by the First-tier Tribunal to have already been validly married sometime between 1956 and 1960, and that his subsequent attempt to divorce that first spouse was invalid, with the result that he remained married to her and therefore could not lawfully have married the claimant. At the time both of his alleged first marriage and purported talaq divorce, the now deceased husband was resident in the UK, while his first wife was resident in Pakistan. Both procedures had been conducted over the telephone.

Judge West allowed the claimant’s further appeal, substituting a decision that she was validly married to the deceased in 1986, and was entitled to bereavement benefit on his death. The tribunal had erred in holding that the deceased had been lawfully married to someone else between 1956 and 1960.

The Secretary of State conceded that the purported earlier marriage, made by a transnational telephone call, was not valid and so that the deceased was consequently free in 1986 to marry the claimant, and that she was entitled to bereavement benefit (paragraph 11). The judge considered that concession rightly made. His full reasons were to include that the purported marriage ceremony between the deceased and the alleged spouse in Pakistan was ‘not valid under English law’ and even supposing it were valid under the law of Pakistan, ‘a marriage conducted in two countries would have to be valid under the law of both countries to be valid under English law’ (paragraph 13). It was common ground that the formal validity of a marriage is to be determined exclusively according to the law of the place where it is celebrated (the lex loci celebrationis). The judge considered that the formal validity of a telephone marriage was to be determined according to the laws of the countries of which both parties are physically present ‘with the result that a telephone marriage celebrated whilst one of the parties was in England will not be valid since telephone marriages are not valid in this country’ (paragraph 29). In so holding, he considered that a decision by the Scottish Court of Session, A v K [2011] CSOH 101, 2011 SLT 873, which held that on the facts a telephone marriage between parties in Scotland and Pakistan and which was lawful in Pakistan was therefore lawful in Scotland, was wrong (paragraphs 34–40). Whether the purported marriage in the present case was lawfully terminated by a telephone talaq divorce did not strictly speaking arise, but for the sake of completeness the judge held that on the facts the divorce was invalid for the purposes of English law – ie, had the marriage been lawful in the first place. The correct position, as set out in the Home Office Visas and Immigration Guidance 2013 SET 13.5, was that if a husband pronounces talaq divorce in the UK alone (ie, he is not actually in Pakistan or Bangladesh), the divorce will not be recognised (paragraphs 47–48).

Summary

The claimant argued that he should score 15 points in the mobilising descriptor of the work capability assessment. The evidence included that he had been awarded the high rate of the mobility component of disability living allowance for virtual inability to walk. The tribunal rejected that argument, holding that he could walk for 30 metres before 'pausing for a few seconds', then was able to continue walking at a reasonable pace and only needed to rest for more than a 'pause' after covering 100 metres. The tribunal considered that there was a difference between a 'pause' and a stop, in that the former was merely about pacing an activity, whereas the latter created a break in the activity. Thus, it considered that the requirement for 15 points that the claimant cannot mobilise for more than 50 metres 'without stopping in order to avoid significant discomfort or exhaustion' was not satisfied.

Judge Mark allowed the claimant's further appeal and remitted the case for a new tribunal. As was accepted by the Secretary of State, the tribunal had erred in the way it distinguished between a pause and a stop (paragraph 4). For the purpose of the test under consideration, it did not matter if the claimant had to stop for a few seconds or for several minutes. The judge cited at paragraph 21, with approval the decision of Judge Paines QC in GC v SSWP [2014] UKUT 117 (AAC), that in this test there was no distinction between 'stopping' and 'pauses'. In the present case, on its own findings of fact the proper conclusion for the tribunal to have come to was that the claimant would stop for a few seconds after 30 metres (paragraph 5). If that was to avoid significant discomfort or exhaustion (or if a stop for that was required after no more than 50 metres), the appropriate conclusion would be that he could not mobilise on foot for more than 50 metres without stopping for that reason.

However, the judge also pointed out that the test also considered ability to mobilise using a manual wheelchair. So, the tribunal would also need to consider whether and for how far the claimant could reasonably use a manual wheelchair. The tribunal had made no reference to this (paragraph 6).

Decision in brief

Conversion and termination decisions under the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No.2) Regulations 2010 No.1907 are valid – argument that they are ultra vires as purporting to alter decisions other than by supersession under the Social Security Act 1998 rejected – the regulations do not purport to amend the 1998 Act, but instead provide for termination of existing awards of incapacity benefits otherwise than by revision or supersession, as clearly provided for in Schedule 4 Welfare Reform Act 2007 – regulations include an entirely adequate right of appeal

Decision in brief

Swedish claimant in receipt of Swedish pension moved to UK and claimed attendance allowance – Article 6 of EC Regulation 987/2009 deals with procedure – claimant is to be provisionally entitled to benefit from one of the states – where the claimant is not working, provisional entitlement arises under the legislation of the state of residence – states may refer the matter to the Administrative Commission – in present decision, Judge Jacobs does not decide who is competent state as the issue arises in other cases currently before him

Summary

The claimant went to the official (gov.uk) website to claim JSA online. Due to a prompt on the website suggesting to the claimant that he could be better off claiming pension credit (PC) and asking if he would like to consider a claim for that 'or continue with this application for jobseeker's allowance', the claimant eventually ended up claiming PC. Only when that had been refused did he complete a claim for JSA. The First-tier Tribunal accepted that his JSA claim should be backdated to the time he originally started to make a JSA claim, holding that on the facts that regulation 19(5)(d) of the Social Security (Claims and Payments) Regulations 1987 No.1968 applied. That provides that a claim for JSA or income support can be backdated for up to three months where 'the claimant was given information by an officer of the Department for Work and Pensions... which led the claimant to believe that a claim for benefit would not succeed.'

Judge Wright allowed the Secretary of State's further appeal, and remitted the case to a new tribunal. However, that was only on the basis that the tribunal had given inadequate reasons about precisely how the claimant came to be of the view that the JSA claim could not succeed. He upheld the tribunal's substantive finding that the information on the DWP website could amount to information from an officer of the DWP, and held that on the facts of the case the tribunal did not err in finding that the claimant had 'been given information by an officer of the DWP' (paragraph 8).

In so holding, he held that the earlier decision of Judge Wikeley in S K-G v SSWP (JSA) [2014] UKUT 430 (AAC) was wrongly decided and should not be followed (paragraph 6). That decision held that information on the website did not constitute information given by an officer of the DWP as it lacked the requisite 'interchange of some kind between the officer and the enquirer'. In particular, Judge Wright took into account evidence that the DWP is responsible for the accuracy of the information on the website (paragraph 20) and that it had been held in R(IS) 3/01 and that the words in regulation 19(5)(d) 'are not to be given any artificially restricted meaning' (paragraph 31) . The words 'by an officer of the DWP' referred to the status of who provided the information, not how it was provided; the requirement in S K-G that there had to be some sort of personalised, specific interchange between the claimant and the DWP did artificially restrict the meaning of the words and so was inconsistent with previous caselaw (paragraphs 26-31 ).

Summary

The claimant had an appeal before the First-tier Tribunal concerning a challenge to a decision refusing to change her award of disability living allowance (DLA) following a change of circumstances. The hearing was adjourned due to the tribunal running out of time, with a date set for resumption on a date some two months later. While the appeal was adjourned, the claimant, having sought advice, gave written notice of withdrawal of her appeal. However, the tribunal considered that its consent was required before withdrawal could be granted, refused to allow withdrawal and went on to decide that the claimant had no entitlement to DLA.

Judge Knowles QC allowed the claimant's further appeal, and substituted a decision that she had lawfully withdrawn her appeal. Therefore, the tribunal's decision that she had no entitlement to DLA was of no effect. The tribunal had erred in deciding that its consent was required before the appeal could be withdrawn. Rather, held the judge, a withdrawal sent by written notice was under a rule giving an absolute right to withdraw, which applies even if a hearing had commenced but subsequently been adjourned (paragraphs 2 and 35). Although consent is required where the request to withdraw is made during a hearing, the tribunal was wrong to regard a hearing as still taking place during an adjournment (paragraph 36).

The relevant rule was at rule 17(1 )(a) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 No.2685. That provides that a party may give notice of withdrawal (ie, without a need for consent) 'by sending or delivering to the Tribunal a written notice of withdrawal'. However, under subparagraphs (2) and (3)(c), where notice is given 'at a hearing', the tribunal must consent to the withdrawal. In the present case, the judge held that withdrawal under subparagraph (1)(a) (ie, by written notice and not at the hearing) 'gives a party an absolute right to withdraw' (paragraph 35). The tribunal was wrong to regard the claimant's withdrawal to have been made 'at a hearing'. A hearing is defined as 'an oral hearing' and there was no such hearing taking place when the withdrawal was notified, in which case the withdrawal took immediate effect (paragraph 36). In so holding, the judge held that the decision in BP v SSWP (DLA) [2011] UKUT 228 (AAC) was no longer good authority on the interpretation of rule 17, and the decision of Judge Hemingway in LC v SSWP [2015] UKUT 315 (AAC), holding that there was an absolute right to withdraw during an adjournment, was approved (paragraph 40). The only caveat was that rule 17(3)(b) provides that a tribunal can issue a direction that withdrawal may take effect only with the tribunal's consent. So, for example, in the present case the tribunal could have issued such a direction when it adjourned, with the effect of providing that consent was required - however, it did not (paragraph 37).

Summary

On conversion of his claim for incapacity benefit to contributory ESA, the claimant was placed in the work-related activity group. At that time, he was resident in Spain. He appealed to the First-tier Tribunal. He did not request a hearing and the tribunal decided the case on the papers. In rejecting the appeal, the tribunal considered the application of the 'substantial risk' provision for work-related activity at regulation 35(2) of the Employment and Support Allowance Regulations 2008 No. 794. The tribunal found that as the claimant lived abroad, work-related activity for him a 'hypothetical consideration' as he would not actually be required to undertake such activity while resident abroad.

Judge Mitchell allowed the claimant's further appeal and remitted the case to a new tribunal. The claimant did not have a fair opportunity to put forward a case in relation to regulation 35(2) because he was unaware of the type of work-related activity by reference to which the regulation would be applied (paragraph 20). The tribunal had no information from the Secretary of State about the type of work-related activity it considered could be carried out without substantial risk.

The judge asked the Secretary of State to provide a submission about how regulation 35(2) should be applied in a case where the claimant was resident outside Great Britain, in particular with regard to the requirement that the tribunal would have information about the work-related activity that might be required in a particular geographical area. The Secretary of State replied that in a case where the claimant chose not to attend a hearing, it would almost always take place in Newcastle (where the DWP international pension centre was based): therefore, in such a case the relevant evidence would be from the Newcastle area. Where the claimant chose to attend the hearing in person, s/he could choose a venue suitable to her/him, in which case the relevant evidence would come from the area in which the tribunal was located. Judge Mitchell held that if the appellant does not object, the Secretary of State's approach should be adopted; if the appellant does object to that, then the tribunal needs 'to decide for itself how to proceed taking into account the reasons for the objection and any submissions of the Secretary of State' (paragraphs 16- 22).

Summary

The claimant had Parkinson’s disease, and was awarded DLA in 2010. In 2013, following a fraud investigation, the award was revised and a decision (the ‘entitlement decision’) that the claimant had not been entitled to DLA at all substituted. Shortly after, another decision (the ‘overpayment decision’) said that in the light of the entitlement decision, the claimant had been overpaid and that (as it had been caused by the claimant’s misrepresentation of a material fact) the overpayment was recoverable from him. The claimant appealed against the entitlement decision, but the tribunal treated that as against the overpayment decision too. However, the tribunal dismissed the claimant’s appeal.

Judge Poynter allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred in failing to consider whether there was a legitimate ground for revising the original award. It, therefore, failed to address the legal questions that the law required it to answer before it could properly uphold the Secretary of State’s decision (paragraphs 20–23).

In this case, revision was the requisite ground for changing the original award. The relevant rule was at regulation 3 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 No.991. On the facts of this case, it was too late for a revision within one month. That left revisions which may be carried out at any time on specified grounds, as provided for by regulation 3(5). As the judge pointed out, the ‘official error’ ground at subparagraph (5)(a) was not relevant (as that requires that there have been no contribution from the claimant, whereas the Secretary of State’s case was that the claimant actually caused the overpayment); that left grounds relating to ‘ignorance of or mistake about a material fact’ (paragraphs 13–16). Further, as this case concerned a ‘disability determination’ (ie, whether the disability grounds for DLA were satisfied) it was required under regulation 3(5)(c) to be shown that ‘the claimant knew or could reasonably have been expected to know of the fact in question and that it was relevant to the decision’. Unless that applied, there were no grounds for revision under regulation 3(5)(c) at all, and hence in this case no overpayment (ie, because the original award could not be changed) (paragraphs 17–22). As the tribunal had not considered that, there was no ground for upholding the decision under appeal; however the judge considered that that question, and the question of whether the claimant met the disability conditions for DLA when he first claimed, should be considered by a new tribunal.

Summary

The claimant’s son had been diagnosed with ‘high-functioning autism/Asperger’s syndrome’. He attended school until age 18, but after he turned 18 the local authority agreed to cover the cost of a home learning programme, under which the son worked at home with an information technology tutor for five hours a day, five days a week, for 39 weeks a year. HMRC decided that this was not ‘approved education’ for child benefit purposes and terminated the claimant’s entitlement. Her appeal was refused by the First-tier Tribunal.

Judge Levenson allowed the claimant’s appeal and substituted a decision that the claimant was entitled to child benefit. The relevant rule breached human rights law as it unlawfully discriminated against the claimant as the parent of a child with special educational needs who required a home education programme after the age of 16 (paragraph 15(i)). The relevant rule was at regulation 3(2)(a) of the Child Benefit (General) Regulations 2006, SI No.223. That requires that to count as a ‘qualifying young person’ for child benefit, the young person must be in full-time non-advanced education either at school or college or elsewhere but ‘approved by the Commissioners’. However, under subparagraph (3), a person cannot be a qualifying young person other than at school or college unless that had started before s/he turned 16. Thus, on the facts of this case, the regulation prevented the claimant from being entitled.

That was, held the judge, in breach of the provisions of the European Convention on Human Rights preventing discrimination regarding property (Article 14 read with Protocol 1 of Article 1). Where, agreed the judge, there is a statement of special educational needs and a programme of education has been specifically assessed by the local authority as being suitable, there was no difference between people who had required such a programme to start before their 16th birthday and those who required it to start after their 16th birthday, and the difference in treatment could not be justified (paragraph 15(j) and (k)). The judge assumed that consideration will now be given to amending the regulations (paragraph 16).

Decision in brief

The time limit applies to the supervision/ prompting/assistance, not to the therapy (paragraph 25) – no rule that states that because a claimant’s problems create limits within one descriptor, they cannot also be assessed as creating limits within another descriptor – PE v SSWP [2015] UKUT 309 (AAC) approved (paragraph 28)

Note from CPAG

Judge Williams, who made this decision, took the same approach to descriptor 3(f), a case involving kidney dialysis, in HH v SSWP [2015] UKUT 558 (AAC) (16 October 2015) (file number CPIP/1290/2015). There he also observed, on the facts, that the claimant was able to manage his dialysis without supervision, prompting or assistance, in which case the descriptor did not apply.

Decision in brief

Context of test is the function of 'identifying those who cannot reasonably be expected to work' and so test refers to a person 'being oriented towards a workstation, whether sitting or standing, in such a manner that they may fairly be described as capable of performing a job of work' - if a person needs to sit with a rigidly outstretched leg so that they cannot fairly be said to be capable of doing a job of work at a workstation, this does not amount to remaining sat 'at a work station'

Decision in brief

Supervision monitoring the claimant's condition in case of an attack and before any therapy is administered is not within 3(c)-(f) (SSWP v AN applied) - 'until there is therapy, there can be no supervision to manage it' - but risk to claimant giving rise to a need for supervision could apply in a number of activities need not be a risk that is unique to a particular activity- 'It is sufficient if it is a general risk, even one that applies when the claimant is doing nothing, provided that the requirements of a particular descriptor are satisfied'