CPAG search

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.

Summary

The claimant, a Nigerian national, came to the UK in 2008 as the spouse of a student. She was subject to a 'no recourse to public funds' restriction. She was awarded child benefit for her first child in July 2009, and for a second child in September 2010. In 2012, following her application for an extension of her leave, HMRC decided that she was not entitled to child benefit as she was a person subject to immigration control, and was liable to repay an overpayment of almost £4,000 as she had caused the overpayment by misrepresentation. The First-tier Tribunal dismissed her appeal, rejecting the claimant's contention that she had declared that she was a person subject to immigration control (and that therefore had not misrepresented herself), on the basis that had she done so then, on the balance of probability, she would not have been awarded child benefit.

Judge Wikeley allowed the claimant's further appeal, and substituted a decision that, on the available facts, the claimant had not misrepresented herself, HMRC was unlikely to be able to produce any evidence she had and, therefore, the overpayment was not recoverable from her. The facts included that the claimant was consistently clear that she had declared that she was a person subject to immigration control on her first claim form; that she had completed the second claim form electronically and that had 'greyed out' the questions on immigration status so that she could not do so again; and that HMRC had not been able to produce a copy of either claim form to the tribunal as both were no longer available having been destroyed.

Before the Upper Tribunal, HMRC conceded that the logic of both the HMRC submission to the First-tier Tribunal and the tribunal's finding was that the child benefit award was itself evidence of the claimant's misrepresentation, and that both had failed to explain the conclusion properly (paragraph 13). Judge Wikeley agreed with that and held that 'the tribunal appears to have proceeded on the assumption that the decision makers never make mistakes, a position which is simply unsustainable... ' (paragraph 17). Given the absence of the original claim forms, it was difficult to see what secondary evidence HMRC could come up with to satisfy the onus on it to demonstrate that there had been a recoverable overpayment; also the claimant had been consistent throughout. Against that background the judge was satisfied that the claimant had not misrepresented nor had she failed to disclose any material fact, and so the overpayment was not recoverable from her (paragraphs 20-21).

Summary

The claimant and his wife made a joint claim for tax credits. His wife was considered not to satisfy the national insurance number (NINO) requirement, and the claim was rejected. The claimant appealed, arguing that his wife had good reason for failing to attend NINO interviews. The appeal was rejected and, as part of that, the First-tier Tribunal found that there was no right of appeal against an HMRC decision to reject a tax credits claim.

Judge Mark allowed the claimant's further appeal, setting the decision aside and remitting the case for hearing by a new tribunal. The tribunal had been wrong to hold that there was no right of appeal against a decision such as this. The matter had been considered previously by Judge Ward in ZM and AB v HMRC [2013] UKUT 547 (AAC). However, in that decision, the judge held that although there was a right of appeal against matters of fact such as whether the claimant's wife was exempt from the NINO requirement, more generally there was no right of appeal against matters of discretion, such as whether a claim not made on the correct form could be accepted or whether there was reasonable excuse for not meeting the NINO requirement.

Judge Mark disagreed with that approach, and held that as long as it was clear that a claim was being made, a decision to reject it, for example, on the basis that it was not on the correct form or did not contain the required information, did carry the right of appeal (paragraph 22). The judge could draw no relevant distinction between social security caselaw (R(IS) 6/04) which had held there was such a right of appeal, and tax credit law (paragraph 19). For the judge, 'tax credits are benefits, like other social security benefits, which are provided to sustain members of the community through the welfare state and I should not approach the question of what is appealable in an over-technical way' (paragraph 21).

Comment from CPAG

There is a clear conflict in approach between ZM and AB v HMRC and the present decision. Both are of equal authority, but arguably Judge Mark's approach in CI v HMRC (TC) is to be preferred, as being the later decision and the one more consistent with caselaw on the very similar content and purpose of the benefit rules.