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Summary

The claimant had various health problems including panic attacks out of doors, alcohol dependency and chronic back pain. Her claim for DLA was refused, a decision that was upheld by the First-tier Tribunal (‘the DLA tribunal’), who had been asked to consider her entitlement to the low rates of both the mobility and the care components. On the day of the tribunal hearing, the DLA tribunal had been given a copy of a decision notice dated the day before, indicating that she had successfully appealed an employment and support allowance (ESA) decision. The First-tier Tribunal dealing with that appeal (‘the ESA tribunal’) had awarded her 9 points under descriptor 15(b) for ‘getting about’, and 9 points under descriptor 16(b) for ‘coping with social engagement due to cognitive impairment or mental disorder’. However, the DLA tribunal made no reference to that.

Judge Hemingway allowed the claimant’s further appeal, and remitted the case for consideration by a fresh tribunal. The DLA tribunal had erred in failing to take into account a relevant matter, namely the decision of the ESA tribunal (paragraph 35). The judge accepted submissions from the Secretary of State that the DLA tribunal was not bound in any way by the decision of the ESA tribunal, that different tests were in issue, and that there was no obligation on the DLA tribunal to follow any of the ESA tribunal’s reasoning (paragraph 33).

Nevertheless, the DLA tribunal did not make any reference at all to the decision of the ESA tribunal and there was therefore no evidence that it received any ‘meaningful consideration’ at all (paragraph 31). In this case, the ESA tribunal decision was relevant, especially its finding that descriptor 15(b) applied. That is satisfied where the claimant ‘is unable to get to a specified place with which the claimant is familiar, without being accompanied by another person’. While it did not necessarily follow that such a finding meant that the test for entitlement to the lower rate of the mobility component is satisfied, the judge said: ‘…I would take the view that it certainly suggests it might be. There is, it seems to me, a considerable interrelationship between the two statutory tests. So, potentially, the award made by the ESA tribunal was a matter of some significance. It merited the paying of some attention to it…’ (paragraph 34).

Comment from CPAG

Although concerned in particular with the relevance of an ESA award to DLA entitlement for mobility, it is strongly arguable that, depending on the facts, similar reasoning should apply to the relevance of an ESA award to personal independence payment. However, the relevance will depend on the facts, and claimants should be aware that adverse ESA decisions might also be considered relevant.

Summary

The claimant’s appeal to the First-tier Tribunal was signed by her solicitor. In the appeal letter, the solicitor also said that a copy of the letter had been sent to the claimant for her to sign and forward to the local authority. Although the claimant said that she did so, the local authority said that it never received the copy signed by the claimant, and by the time it received such a copy, the appeal was outside of the maximum 13-month time limit allowed for an appeal. The local authority submitted to the tribunal that the appeal signed by the solicitor was not sufficient for the appeal to have been duly made, and the one actually signed by the claimant was made too late. The tribunal accepted that and in an interlocutory decision struck out the appeal.

Judge Wikeley allowed the claimant’s further appeal, holding that the appeal signed by the solicitor was duly made, and remitted the substantial matter of the appeal to a new First-tier Tribunal. The tribunal had erred in holding that an appeal signed by a solicitor was not duly made (paragraph 3). The relevant statutory requirement was at rule 23(6) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 No.2685. That requires, among other things, that the notice of appeal ‘must be signed by the appellant’. But the tribunal erred in failing to apply the finding in General Legal Council ex parte Basil Whitter v Frankston [2006] UKPC 42 that when a statute gives someone the right to invoke some legal procedure by giving a notice or taking some other formal step, ‘he may either do so in person or authorise someone else to do it on his behalf’ (cited at paragraph 25 of the present decision). Judge Wikeley went on to say that, given the code of professional responsibilities and ethics imposed upon solicitors, ‘one can assume that a solicitor sending in a letter of appeal on behalf of their client is properly authorised and acting on their instructions, and so is signing as an agent for their client’ (paragraph 28). This point had also been made by Judge Rowland at paragraph 11 of Salisbury Independent Living v Wirral Metropolitan Borough Council [2011] UKUT 44 (AAC), where he said, ‘the requirement for the appellant’s signature is generally waived where the notice of appeal is signed by a representative who provides signed authority to bring the appeal or who is a solicitor and therefore presumed to act only on instructions’.

Where a non-legally qualified representative, such as a welfare rights worker or CAB adviser provides written authority from their client, then they are in practical terms ‘in the same position as a solicitor who writes on the instructions of their client’. However, where such a representative lodges an appeal but does not provide such authority, the situation is less clear, and it cannot always be assumed that s/he is acting on her/his client’s instructions (paragraph 30).

Summary

The claimant was separated from her son’s father. She lived in a council property with two bedrooms. The son spent equal time with the claimant and with his father under a shared residence order. At the relevant time the father was in receipt of child benefit and tax credit in respect of the son. The claimant’s eligible rent was subject to a 14 per cent reduction under the so-called ‘bedroom tax’ rules contained at regulation B13 of the Housing Benefit Regulations 2006 No.213, as she was regarded as entitled to have only one bedroom (ie, for herself) included. The claimant’s appeal was allowed by the First-tier Tribunal, on the basis that the son occupied as his home both the claimant’s dwelling and the father’s dwelling, and that there was nothing that provided he could not have more than one home or live in more than one household.

Judge Jacobs allowed the further appeal of the local authority, and substituted a decision that for the purpose of regulation B13 the claimant was entitled to only one bedroom, so that the 14 per cent reduction should be applied. The tribunal had erred in misinterpreting the relevant legislation. Specifically, the tribunal erred in regarding the words at subparagraph (5) of regulation B13, which gave entitlement to a bedroom for each person ‘whom the relevant authority is satisfied occupies the claimant’s dwelling as their home’ as freestanding. Rather, these words had to be read in the context of other provisions in the HB legislation. Specifically, regulation 7(1)(a) provides that a person shall be treated as occupying as his home, ‘the dwelling normally occupied as his home…by himself and by his family’; ‘family’ is defined by section 137(1)(c) of the Social Security Contributions and Benefits Act 1992 as ‘a member of the same household for whom that person is responsible and who is a child’, and regarding responsibility regulation 20(2)(a) provides that where a child spends equal time in different households, they are treated as ‘normally living with the person who is receiving child benefit in respect of him’.

Applying that to the present case, given that the father was entitled to child benefit for the son, the claimant was not responsible for him by virtue of regulation 20(2)(a). As a result, the son did not qualify for a second bedroom under regulation B13 (paragraph 9).

Summary

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

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

Comment from CPAG

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

Summary

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

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

Comment from CPAG

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

Summary

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

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

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

Summary

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

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

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

Summary

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

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

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

Summary

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

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

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

Decision in brief

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

Decision in brief

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