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Decision in brief

Claimant lost entitlement to the mobility component when he went to live in France and attempted to reclaim it when he returned to live in Great Britain, aged 68- DLA mobility component is a 'special non-contributory benefit' under EU law and entitlement was therefore correctly decided under domestic law, which includes the age 65 cut-off rule - in any case there was nothing intrinsic to the age 65 cut-off rule which is liable to inhibit free movement

Summary

The claimant was (according to the local authority) sent decisions about his entitlement to council tax benefit in May 2012. The claimant said he never received them, and only became aware of them in September 2013. At that point he attempted to appeal against them, but the local authority said they were made outside the absolute time limit for appeals of 13 months, and passed it to the First-tier Tribunal. The tribunal decided, without further recourse to the parties, to strike out the appeal for being out of time. The tribunal said there was sufficient evidence to show that the claimant had been sent the decisions, and given that, the question of whether he had actually received them was immaterial.

Judge Hemingway held that, on the facts of the case, the tribunal had erred in not getting further oral evidence from the claimant before deciding whether to strike the appeal out, and so remitted the case to a new tribunal. The judge did not dispute that that, under rule 23(5) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 No.2685, no appeal may be made more than 12 months after the normal one-month time limit. Neither did he dispute that what was crucial was whether the claimant was sent the decisions. However, in this case the claimant’s oral evidence would have been relevant to the question of whether it was an exceptional case, such that Article 6 of the European Convention on Human Rights (right to a fair trial) required the exercise of discretion to accept the appeal beyond the absolute time limit (paragraph 14). The local authority and tribunal were both wrong to consider there was no such discretion. In Adesina v Nursing and Midwifery Council [2013] EWCA 818, the Court of Appeal held that Article 6 required the application of discretion to such an absolute time limit so as to achieve the minimum necessary required for compliance with the Convention (paragraph 15).

In Adesina, noted the judge, it was also held that in effect such discretion would arise only in exceptional circumstances and where an appellant had done everything they could to make the appeal within time. A number of subsequent decisions had illustrated ‘how sparingly the discretion should be exercised’, but the discretion is there (paragraph 15). On the facts of this case, the claimant’s oral evidence about non-receipt of the decisions might have been relevant to whether or not to strike out the appeal, in that it might have supported the proposition that the decisions had in fact not been sent, and also might have shown whether he had been otherwise unaware that the decisions had been made and whether he had acted promptly once he was aware (paragraph 14).

Comment from CPAG

This decision is not authority for an argument that the 13-month time limit is not ‘absolute’ in most cases. Satisfying at least that time limit remains vital in most cases. The decision is authority that discretion to admit an appeal made outside that time limit should be considered in ‘exceptional circumstances’. Even then, the judge did not go so far as to say that this was such a case; rather that the tribunal should have taken oral evidence before considering whether or not to exercise such discretion.

Summary

The claimant was entitled to disability living allowance lower rate mobility component and middle rate care component. When she renewed the claim, the award was reduced to one of lower rate mobility component only, and after mandatory reconsideration the claimant appealed. She indicated that she wished the appeal to be heard ‘on the papers’ ( ie, without an oral hearing), but also that that was because she did not feel she could attend the tribunal venue in person because she had panic attacks and did not like going to strange places. A GP report in the papers confirmed her severe agoraphobia and indicated (to the DWP) that a home visit may be better than making an appointment. The tribunal held a ‘paper hearing’ (ie, made a decision without an oral hearing), on the basis that it considered it had sufficient evidence to make a decision, and rejected the claimant’s appeal.

Judge Hemingway allowed the claimant’s further appeal and remitted the case to a new tribunal, with a direction to hold an oral hearing with the claimant given a reasonable opportunity to attend – eg, by considering holding a domiciliary hearing or one at a location familiar to the claimant. In so deciding, he endorsed the submission of the Secretary of State that the claimant had clearly indicated that she wished to take part in the proceedings but did not feel able to because of her mental health problems, and the tribunal should have considered adjourning and also that the claimant might be a ‘sensitive witness’ with particular consideration given to how to facilitate her/his giving evidence.

Specifically, the tribunal erred in not taking into account the appellant’s wish to participate in the proceedings but for her illness. It also did not appear to consider alternative ways of proceeding – eg, a domiciliary hearing or a hearing at a location familiar to the claimant, or an adjournment to allow her participation by telephone. Further, the tribunal did not consider the possibility that the claimant might fall within the definition of a ‘sensitive witness’ such that it would be appropriate to consider possibilities such as evidence being given by telephone or video link or other means. Finally, it gave undue prominence to its view that it had sufficient evidence to proceed. That did not of itself mean that proceeding on the papers was fair and just, or that other factors in rule 2 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 No.2685 had been properly taken into account (paragraphs 13–14).

Comment from CPAG

This decision is a helpful reminder that the mere fact that a tribunal feels able to proceed without a claimant’s presence is not necessarily sufficient: a claimant who wants to participate should be facilitated to do so, whatever the tribunal thinks about what it already has in the appeal papers.

Summary

The claimant was living and working in Britain, but his wife and children were in Poland. Although it was accepted that under European law the children counted as his family members, he was held not to be entitled to child benefit for them as they were not living with him and it was considered unlikely that he was contributing to the cost of providing for them. That decision was upheld by the First-tier Tribunal.

Judge Ward allowed the claimant's appeal and substituted a decision that, based on the facts and evidence, the claimant was contributing to the cost of providing for the children. That evidence included bank statements from a period later than that at issue in the appeal, and that the claimant transferred money using an online payment system as well as by other means. The First-tier Tribunal had erred in giving a ‘bald assertion’ that the claimant’s income was insufficient to make the payments he should be making towards the upkeep of the children, without analysing the evidence submitted by the claimant. Judge Ward’s analysis showed that the claimant’s earned income would have accommodated a weekly payment of a sufficient level (paragraph 24).The tribunal had also erred in deciding that his living costs would not allow adequate expenditure on his children while not realising that the claimant’s statement as to his expenditure on living costs was for joint living costs – ie, including those incurred by his partner in Poland (paragraph 21). It was permitted to take account of evidence of earnings that post-dated the date of the decision; but the tribunal had overlooked the evidence of the amounts leaving the claimant’s bank account and being sent to Poland to support his family (paragraph 22).

Also, the judge rejected an argument by HMRC that, even though the claimant was sending sufficient money overall, the claimant was not making weekly payments at the required rate, and so did not count as making adequate provision. The judge did not read section 143(1)(b) of the Social Security Contributions and Benefits Act 1992 as requiring the making of weekly payments, holding that, ‘It matters not whether the contribution is made monthly or fortnightly or even more sporadically and unpredictably than that. As long as there is evidence of contributions at the relevant child benefit rate towards the upkeep/cost of a child or children during the period under scrutiny, the statutory test will be satisfied’ (paragraph 32).

Summary

The claimant had been entitled to PC including the severe disability premium (SDP) since 2004. Although she lived with her son and daughter-in-law, their presence was ignored for SDP purposes as the son was regarded as a ‘co-owner’ of the house. In 2006 the property was transferred into the son’s sole name, albeit with a deed of trust drawn up so that the claimant remained entitled to half the net profit of any sale. When the DWP discovered this in 2011, it issued a decision that there was no longer a ‘co-owner’ and so the claimant had been overpaid the SDP. The First-tier Tribunal held that the claimant remained a co-owner of the property by virtue of the deed of trust, and had not been overpaid.

Judge Mark held that the tribunal had not erred in law. Although the son had become the sole legal owner of the property, in the PC rules ‘co-owner’ had a wide meaning and was not confined to legal, as opposed to beneficial, ownership. The tribunal had correctly distinguished R(H) 7/05 on the definition of ‘owner’ in the housing benefit regulations, found that in the ordinary sense of the word ‘co-owner’ the claimant continued to own part of her home as under the PC rules the claimant remained a ‘co-owner’ (paragraphs 7–9).

Construing the term ‘co-owner’ in the State Pension Credit Regulations 2002 No.1792, Judge Mark held that the word was intended to have a wide meaning, not confined to legal ownership, and that on the facts of this case the claimant remained entitled to be considered a co-owner in the ordinary use of that word (paragraphs 13–14).

Decision in brief

Claimant who cannot leave the house without another person satisfies the descriptors – although other descriptors in Activity 1 specify a mental health element, no such requirement in 1(d or (f) – not limited to ability to navigate when on the journey – ‘extraordinary’ if someone who was permanently housebound scored fewer points than someone sometimes able to go out – ‘cannot’ is the significant word in the descriptors, not ‘follow’

Note from CPAG

See the contrasting DA v SSWP, and the article in Bulletin 249, p4.

Decision in brief

Claimant who because of anxiety requires help with reassurance and encouragement – does not satisfy the descriptor as it ‘deals with navigation and excludes dealing with other difficulties that may be encountered along the way’ – ‘following’ the route is the subject of the descriptor – that is the natural meaning of the words in the descriptor, and is in contrast to some others in Activity 1, which deal with inability to embark on or complete a journey, but not following its route

Note

See the contrasting RC v SSWP, and the article in Bulletin 249, p4.

Decision in brief

ESA does not constitute two benefits – amount a claimant entitled to on conversion must encompass consideration of both the contributory and income-related amount – where the support group criteria are satisfied, it is an official error for the decision-maker (or a decision maker considering a revision of that decision) not to consider entitlement to the enhanced disability premium – no requirement for a conversion process claimant to ‘claim’ either the premium or income-related ESA

Decision in brief

Relevant provision is regulation 31 of the Jobseeker’s Allowance Regulations 1996, SI No.207 – does not mean that claimants who received jobseeker's allowance were wrongly paid – instead, where the proposed agreement is not signed, it must be referred to a decision maker for consideration as to whether it is reasonable

Decision in brief

Claimant cannot challenge direct payment by challenging landlord's title to grant him the tenancy - ie, by alleging an illegal letting - it is well established that so long as the tenant remains in possession undisturbed by any adverse claim, the tenant cannot dispute the landlord's title - facts showed that the tenant was in the requisite eight weeks' or more arrears, and there was no evidence that it was in his overriding interest not to make payments direct to the landlord

Summary

The claimant had Asperger Syndrome and obsessive compulsive disorder. His appeal to the First-tier Tribunal included the question of whether he should score points under Activity 9 for ability to engage with other people face to face. He had moved into supported accommodation following becoming verbally aggressive at home; avoided communal areas and contact with other residents and staff; he did not have friends; was prone to angry verbal outbursts; was unable to develop and build personal relationships; he was a member of a local theatre group and was more comfortable there now that other members were more familiar to him, but that he ‘acted a role’ when having to mix with others.

The tribunal decided that he scored eight points under descriptor 9(d), which applies where the claimant ‘cannot’ engage with others due to such engagement causing either ‘overwhelming psychological distress’ to the claimant or ‘substantial risk of harm’ to the claimant or another person. The Secretary of State argued that was wrong, as the claimant had allegedly engaged fully and appropriately at his medical and at the tribunal hearing, could interact at his drama group, worked in a garage and was planning to go to university.

Dismissing the Secretary of State’s appeal, the judge first noted that rules provided a claimant should be regarded as capable of carrying out an activity only if s/he could do so safely, to an acceptable standard, repeatedly and within a reasonable time period. ‘Repeatedly’ was defined as often as is ‘reasonably required’ (paragraph 4). A descriptor applied if it was satisfied on over 50 per cent of the days being considered (paragraph 5). Also, although the rules did not define ‘engage’, there was a definition of ‘engage socially’ (which includes interacting in a ‘contextually and socially appropriate manner and being able to ‘establish relationships’). That was curious, as the words ‘engage socially’ in fact did not occur anywhere else; however the judge considered that the definition was nevertheless a ‘relevant consideration’ in considering what it meant to ‘engage’ (paragraphs 10–11). The wording of Activity 9d was on balance to be construed as ‘referring to such engagement as he [the claimant] may be capable of but for such overwhelming distress or the relevant risk from such behaviour’ (paragraph 12).

Applying that, the tribunal had abundant evidence that the claimant could not engage with other people as often as reasonably required and to an acceptable standard on over 50 per cent of the days. Being able to put on an act on special occasions, even a few times a week when attending drama group, did not change that (paragraph 17). There was also evidence of verbal aggression at home and minimal contact with residents in the supported accommodation. Though it could have been better expressed, it was also clear that the tribunal had concluded that to engage more would give rise to more verbal aggression with a consequent risk to the claimant’s safety (paragraph 18).

Summary

The claimant’s earnings fluctuated a lot due to pay increases and varying overtime. She reported these changes to the local authority at regular intervals by taking in her payslips. She was never provided with explanations of the averaging exercise that the local authority used when calculating her income. In June 2010, an overpayment decision was issued following the claimant’s submission of monthly payslips from November 2009 to April 2010. Her pattern of pay had not actually changed until January 2010; however, the local authority simply averaged out the pay over the whole period, with an effective date from the first of payslips in November, and concluded that as her income had gone up she had been overpaid throughout. The First-tier Tribunal rejected the claimant’s appeal.

Judge Lane allowed the claimant’s further appeal, holding that none of the overpayment was recoverable. That was because it had been caused by official error to which the claimant had not contributed, and the claimant could not reasonably have been expected to have realised that she was being overpaid. The local authority had erred in the way it averaged the earnings by including two months (November and December 2009) in which the claimant’s pay remained the same in a known pattern and, by adopting that error, the tribunal also erred (paragraphs 22–25). The claimant, although she did not report every change in her circumstance as it happened, did report changes in her earnings regularly. Given the lack of information the claimant had been given about how her earnings were calculated by the local authority, the judge was ‘simply unable to see how the claimant could have divined that she was being overpaid from the information available’. She had, therefore, not contributed to the overpayment and could not reasonably have been expected to have realised one was occurring (paragraphs 58–63).

The relevant legislation for averaging of earnings during an award is at regulation 29(3) of the Housing Benefit Regulations 2006 No.213. The judge accepted that given the wide discretion in the period to be used in averaging, it was difficult for a claimant to establish an official error regarding that (paragraph 14). But in this case, the local authority’s approach was flawed in applying simple averaging over the whole period covered by the payslips and in providing no explanation of the process of previous assessments, with the result that award notifications to the claimant were ‘impenetrable’ (paragraph 17). The inclusion of two months in which the claimant’s pattern of pay had not actually changed was not a choice open to the authority even given its wide discretion, and so was a ‘fundamental mistake’ which significantly undermined the decision (paragraph 24).

Comment from CPAG

The judge’s decision is a clear warning to local authorities that the wide discretion under regulation 29(3) does not give them carte blanche to take whatever approach is most convenient to them. They must also show to claimants how their earnings have been calculated – otherwise claimants may legitimately argue that they have neither contributed to the overpayment nor can be have expected to have realised an overpayment was occurring.