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Summary

This decision of a three-judge panel of the Upper Tribunal arises from a split in the caselaw about the interpretation of ‘social engagement’ in the mental health test of the work capability assessment (WCA). Ability regarding ‘social engagement’ is a feature of Activity 16 of the test for limited capability for work, and of Activity 13 of the test for limited capability for work-related activity. In KB v SSWP [2013] UKUT 152 (AAC), Judge Parker had held that ‘social engagement’ referred to any social engagement, including that with, for example, doctors and lawyers – ie, in business or professional contact. However, in the later AR v SSWP (ESA) [2013] UKUT 446 (AAC), Judge Ward disagreed with that, holding that ‘social engagement’ did not refer to contact for business or professional purposes, but rather was limited to that which was characterized by friendliness, geniality or companionship with others.

Mr Justice Charles, Judge Warren and Judge Rowland held that Judge Parker was correct in holding that in this context the word ‘social’ was simply a reference to ‘with other human beings’ (paragraph 28) – ie, that the engagement under consideration could include that for business and professional context. However, the nature and extent of the ‘engagement’ then had to be assessed and correctly applied. By way of background, it was accepted that the words involved were ordinary ones in common usage without precise meanings, and that it was important in such cases to look at the whole of a statutory definition with regard to the ‘underlying legislative purpose’ (paragraphs 5-9). That involved an assessment for the statutory purposes of the WCA, which was ‘to assess whether a person is able to engage with others for the purposes of work’. The panel agreed with comment of Judge Wikeley at paragraph19 of AS v SSWP (ESA) [2013] UKUT 587 (AAC) that the WCA activities and descriptors ‘do not exist in some sort of artificial or parallel universe, entirely divorced from the real world of work. They have to be applied on their own terms, but understood against the backdrop of the modern workplace’ (paragraph 16). Thus, in the present decision, the test of social engagement introduced ‘elements of reciprocity, give and take, initiation and response’ (paragraph 32).

In applying that, it was open to a decision maker to base his decision on an example or examples chosen from a wide range of situations (paragraph 34). The decision-making process will involve the finding of relevant facts (ie, regarding the social engagement which can or cannot be undertaken) and then the application of ‘value judgements’ which involve ‘addressing whether the contact with other people has the necessary nature and quality’, considering in each case ‘how the nature and quality of the communications and behaviour would impact on the ability of the individual to work and so whether or not it would be an effective barrier to him working’ (paragraphs 38-39). In the individual cases in the present decision, in one the First-tier Tribunal was considered to have erred in ‘not sufficiently addressing the quality of contact’ (paragraph 45); whereas in the other case, although the tribunal should have expressed itself in different terms, it was entitled to reach the conclusion it did ‘by reference to the claimant’s evidence to them and the manner in which he gave it’ (paragraph 58).

Summary

The claimant was subject to a 14 per cent reduction in her eligible rent on the basis of alleged under-occupation of her home – ie, because she was considered to have too many bedrooms under the so-called ‘bedroom tax’ rule at regulation B13 of the Housing Benefit Regulations 2006 (SI 2006 No.213). Her argument that the alleged spare bedroom should in fact be allowed because she required overnight care was rejected by the First-tier Tribunal. That was because the tribunal considered that she did not satisfy the requirement in the definition of a ‘person who requires overnight care’ at regulation 2(1) that the overnight carer was someone who stayed ‘regularly’ at her house, because the evidence was the stays were not at reasonably even intervals: the evidence was that the overnight carer was needed ‘on occasion’ and ‘when needed’.

Judge Rowland allowed the claimant’s further appeal and substituted a decision that her eligible rent was not to be reduced under regulation B13. The tribunal had erred in its definition of the word ‘regularly’ as it applied in this context. Rather than meaning at reasonably even intervals, the judge considered that ‘the word can also be used as a synonym for “habitually” or “customarily” or “commonly” and this seems a more sensible understanding of the word in the context of this legislative provision…’ (paragraph 13). Further, the judge said the test was whether the need for an overnight carer ‘arises often and steadily enough to require a bedroom to be kept for the purpose’, and that there was no requirement that the carer must be required on the majority of nights. That may be why the word ‘regularly’ was used: ‘it does not mean the same as “normally” or “ordinarily”. A bedroom may be required even if the help is required only on a minority of nights’ (paragraph 14).

Also, the judge rejected arguments by the local authority that an additional bedroom was not required because the carer could sleep in a room other than a bedroom, and that the fact that the claimant was entitled only to the middle rate of the care component of DLA showed that overnight care was not required.

On the facts, the carer slept in a bedroom and that the fact that portable beds could be erected elsewhere did not mean that there was not an additional bedroom, and the possibility of conversion of another room did not mean it was unreasonable for the carer to use the existing bedroom (paragraph 12). Regarding the rate of the DLA care component award, that could not be determinative of whether overnight care was required. There were several reasons why someone who regularly needed overnight care might not be getting the high rate, and the basis of the DLA award ‘may therefore be relevant evidence’ but cannot be conclusive’ (paragraph 18).

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.