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Summary

The claimants were a couple, one of whom was a person subject to immigration control ('PSIC') on the basis that she required leave to be in the UK but did not have it. They submitted a joint claim for tax credits, but the PSIC partner was not able to meet the national insurance number (NI) requirement. A decision was sent deciding that the claimants had consequently 'not made a claim' for tax credits. They appealed, but the First-tier Tribunal decided that it did not have jurisdiction to consider the appeals, as there was no right of appeal against such decisions.

Judge Ward allowed the claimants' further appeal, but only on the basis that there was a specific rule that the NI number requirement did not apply to a PSIC, and that the claimant's rights to a fair trial required that the HMRC's failure to apply that rule could be appealed to the First-tier Tribunal. The judge rejected an argument that any decision that a claimant had not made a claim for tax credits could be appealed; on the contrary, he held that such decisions do not have the right of appeal.

The legislation on the manner on which a tax credit claim must be made is at regulation 5 of the Tax Credits (Claims and Notifications) Regulations 2002, SI No.2014. The national insurance number requirement is at subparagraph (4); however subparagraph (8) provides that the requirement does not apply 'to any person who is subject to immigration control within the meaning set out in section 11519, (a) of the Immigration and Asylum Act 1999 [ie, someone who requires leave but does not have it] and to whom a national insurance number has not been allocated'. On the facts of this case, one of the claimants came within regulation 5(8) and so the NI number requirement should not have been applied to her. The claimants had to be given a right of appeal against a decision failing to observe this, as in the judge's view the question of whether regulation 5(8) applied was a question of fact, and judicial review did not provide an adequate redress as that process was generally concerned with the lawfulness of the decision on the evidence that was available at the time, in contrast to an appeal which was a full rehearing on facts and law (paragraphs 41-52). However, otherwise there was no general right of appeal against a decision that claim for tax credits was incomplete. Tax credits law was different to social security law, and there was no reason to apply caselaw (R(IS) 6/04) holding there was a right of appeal about such decisions regarding benefits, when the main rule on tax credit appeals (at section 38 of the Tax Credits Act 2002) did not provide such a right of appeal (paragraphs 25-31).

Summary

The claimant was found by the local authority to have been living together as husband and wife (commonly referred to as cohabiting) with another person for several years, and the resultant change in the assessment of his capital meant that he had been paid a recoverable overpayment (of over £20,000). The First-tier Tribunal rejected his appeal, holding that the nature of the relationship with the other person and the integration of their finances were 'hallmarks of a friendship that goes far beyond the norm and gives the relationship the characteristic of a close and trusting married couple and not that of two friends'.

Judge Jacobs rejected the claimant's further appeal, holding that the tribunal had not erred in law. That was so even though it was possible that another tribunal might have come to a different conclusion on the same facts; but the issue for Judge Jacobs was whether the tribunal was entitled to come to the decision it did. It was and so there was no error of law (paragraph 14).

Regarding the relevant law, whether a man and a woman were living together as husband and wife 'depends on an analysis of the overall significance of a number of facts individually and collectively' (paragraph 13). The judge considered that the traditional guidelines to deciding in such cases, as set out in Crake v Supplementary Benefits Commission [1982] 1 All ER 498 remained relevant, but contained problems in practice given the wide variety of living and financial arrangements and the limited nature of the evidence that is often available (paragraphs 20-22). These guidelines need supplementing with consideration of the 'emotional element' of the relationship. The leading authority on this was Fitzpatrick v Sterling Housing Association Ltd [1998] Ch 304 and [2001] 1 AC 27, where reference was made (among other things) to 'endurance, stability, interdependence and devotion' and the requirement for the bond to be one of 'love and affection, not of a casual and transitory nature' (paragraphs 23-5). Other authorities referred to similar guidelines. In conclusion, the traditional guidelines remained relevant, but were 'not exhaustive', and tribunals and decision makers should not limit themselves to those guidelines, and should also identify 'any relevant features of the emotional relationship' between the parties (paragraphs 29-30).

Decision in brief

'Social engagement' is not the same as contact for business or professional purposes - contrary finding in KB v SSWP [2013] UKUT 0152 (AAC) (Bulletin 234, p15) disapproved (paragraphs 16-18) - the view of what is taken to be social contact in KB (ie, that contact attending professional appointments such as medical examinations can suffice) has the effect of rendering the words virtually otiose (paragraph 24) - in this contact 'social' must include the kind of things referred to in the Oxford English Dictionary, which defines it as 'marked or characterised by friendliness, geniality or companionship with others; enjoyed, taken, carried out etc., in the company of others' (paragraphs 25-8).

Decision in brief

Meaning of 'daily basis' - use of those words exclude application of the general rule at regulation 34(2) of ESA Regulations 2008 that a descriptor applies if satisfied 'the majority of the time' (paragraph 36)- daily basis means more than majority of the time or frequently, but does not mean literally every day or every working day- essence it what is happening regularly, constantly or continually.

Decision in brief

Does not end automatically after 13 weeks where no limited capability for work determination has been made.

Decision in brief

No request for reasons or further appeal at the time - September 2008 attempt to get decision changed caught by being outside the absolute time limit for further appeal that applied at the time - no breach of European Union law principle of effectiveness.

Decision in brief

Domiciliary hearings – now rare that one will be appropriate or necessary – some time since decision in CI/4093/99 – few people are totally housebound and it may be that the appellant can attend the tribunal venue if transport is provided – enquiries may need to be made about this including if necessary as early as possible on the day of the hearing in a telephone call to the claimant’s home (paragraph 7)

Summary

In this decision the High Court unanimously rejected a judicial review challenge on behalf of a number of claimants that the rule allowing a reduction in their eligible rent following the application of the local housing allowance size criteria (the so-called 'bedroom tax') constitutes unlawful discrimination against disabled people. However, the decision does not question the earlier decision of the Court of Appeal in Burnip v Birmingham CC & Another and Gorry and Wiltshire CC and Another [2012] EWCA Civ 629 (15 May 2012), specifically the Gorry decision, that the rule unlawfully discriminated against disabled children who could not share a bedroom.

The judicial review was brought on behalf of 10 claimants in receipt of housing benefit (HB). The claimants had a variety of different circumstances, but were said to 'represent a range of individuals who are typical of those who are adversely affected by these changes for reasons relating to disability...' (paragraph 3).

The central argument was that the introduction of the 'bedroom tax' into the social rented sector, by the introduction of regulation 813 into the Housing Benefit Regulations 2006 No.213, brought about unlawful discrimination by breaching their rights as disabled people under Article 14 of the European Convention on Human Rights. Related arguments were that the rule involved violation of the Public Sector Equality Duty (PSED) imposed under section 1-49 of the Equality Act 2010, to have 'due regard' to the prospective effect of the rule, and that official guidance in the form of Circular HB/CTB US/2013 was unlawful as prescribing the means of calculating appropriate maximum HB for certain classes of case.

In the lead decision, Lord Justice laws held that discrimination was justified, and ,so not unlawful. The discrimination at issue here was, for the judge, so-called 'Thlimmenos discrimination' - ie, a failure to treat a disabled person more favourably in order to avoid an unfair result (paragraph 48). But that was not made out, and this was also why the PSED was fulfilled in the making of the rule. This was because the policy rationale for the changes was justified. It was not 'manifestly without reasonable foundation', and so the failure to treat disabled people differently (ie, more favourably) had an 'objective and reasonable justification'. These were the tests set out in Humphrys v HMRC [2012] 1 WLR 1545 (paragraphs 56-88). The Court had regard to the Secretary of State's consideration of the new policy from 2010 to 2013, including' the Equality Impact Statement and debates in Parliament, as well as the extra funds made available for affected claimants in the form of discretionary housing payments (DHPs). Arguments for the claimants overlooked or underestimated the strategic aims of the policy to 'shift the place of social security support in society'. Although that aim was contentious, judges could have no public voice for or against it, but had to take rt into account (paragraphs 58 and 65). The Court said that in Gorry the Court of Appeal was faced with a 'discrete group' - ie, families with children who could not share a bedroom because of their disabilities. But it did not accept that the Gorry approach (ie, which found that the Thlimmenos discrimination was unlawful in those cases) could be applied here, where there was no such discrete group-the group was disabled people with varying circumstances. There was no failure: 'the Secretary of State had, of course, nevertheless to consider carefully what steps to take in relation to disabled persons, and others, who would or might face real difficulties arising out of the cap... his provision of extra funding for DHPs and advice and guidance on its use cannot be said to be a disproportionate approach to the difficulties which those persons faced' (paragraph 88).

Regarding the guidance in Circular HB/CTB U2/2O13 (which instructed local authorities to apply the Gorry decision in appropriate cases involving disabled children, but not to others), the Court held that the Secretary of State was 'obliged' to introduce regulations to implement the Gorry decision and not rely on guidance to do so. A departmental circular was 'not a lawful vehicle' for prescribing the means of calculating appropriate maximum housing benefit'. 'Meantime', said the Court, 'local authorities retain their discretion as to the administration of DHPs. It is plainly open to them to follow the Secretary of State's Circular, but compliance with Burnip/Gorry is not their legal responsibility' (paragraphs 89-93).

Comment from CPAG

It is understood that the claimants will seek permission to appeal. Straightforwardly, this decision refuses to extend the Gorry decision further than protecting disabled children who cannot share a bedroom from the bedroom tax. However, even if disabled people in general are not protected, it is unclear exactly why the Court could not consider why, for instance, disabled adults who cannot share a bedroom should not have the same protection.

Arguments that such adults, or some other disabled adults who need an extra room, .are in a 'discrete group' and so are closer to the claimants in Gorry than those in the present decision may still be tenable, although will not be accepted by local authorities and will require testing. Regarding the Court's comments on the official guidance, the DWP has issued further guidance (HB U5/2013) saying that regulations will be amended to reflect Gorry 'in the autumn', and that in the meantime local authorities 'should continue to apply the previous guidance in HB U2/2O13.'

Note: this case was appealed to the Court of Appeal (see R (MA and others) v Secretary of State for Work and Pensions [2014] EWCA Civ 13) and then to the Supreme Court. For the Supreme Court's decision, see R (MA and others, A, Rutherford) v Secretary of State for Work and Pensions [2016] UKSC 58. 

Summary

This decision of a three-judge panel concerns the question of the correct approach, for the purposes of the mobilising descriptor at Activity 1 of the work capability assessment, in deciding whether a manual wheelchair could 'reasonably' be used by a claimant who does not actually have one. Specifically, it arises from a split in the Upper Tribunal caselaw between an approach which takes in account personal circumstances such as the claimant's ability to store a wheelchair and her/his ability to access a wheelchair, and an approach which excludes such considerations in favour of a more narrowly functional approach that looks only at medical issues such as the claimant's ability to propel her/himself, get in and out of a wheelchair, etc (see Bulletin 237, p6).

The key issue was the application of the wording in Activity 1 of the Schedule 2 to the Employment and Support Allowance Regulations 2008, SI No.937, regarding mobilising with a manual wheelchair (or other aid) 'if such aid is normally or could reasonably be worn or used'. Mr Justice Charles, His Honour Judge Martin and Judge Rowland decided that although in principle all the circumstances of the individual claimant should be taken into account (ie, including her/his personal circumstances), in practice, 'the circumstances that should exist in the modern workplace and the availability of manual wheelchairs will mean that in most cases the home environment of a claimant is unlikely to be important and it would be possible for the Secretary of State to ensure that the availability of manual wheelchairs is also not a live issue' (paragraph 2).

In so deciding, the judges drew in particular on the decision of Judge Wikeley in AS v SSWP (ESA) [2013] UKUT 587 (MC), in which he said (at paragraphs 19-21) that the activities and descriptors in Schedule 2 'do not exist in some sort of artificial or parallel universe, entirely divorced from the real world of work', and that the test applies 'in the context of the needs of a modern workplace and the level of activity that an employer attuned to the requirements of disability discrimination law can reasonably expect'. Adopting that, the judges in the present case held that 'many of the practical problems... are likely to be soluble, given the modern workplace and an employer who is conscious of his or her obligations under the Equality Act 2010... disability employment advisers also clearly have a role to play in advising as to the solution' . So, for example, where a claimant cannot store a manual wheelchair at home, it might be pointed out that 'the solution to the problem might be to make arrangements for a manual wheelchair to remain in the workplace' (paragraph 74).

The judges then set out the following more specific guidance to the application of Activity 1 to claimants who do not normally use manual wheelchairs (paragraphs 75-82): (1) the test must be applied on the basis that the notional employer has a modern workplace and is prepared to make reasonable adjustments; (2) that 'all medical considerations' need to be taken into account, including consequences attendant on wheelchair use such as muscle wasting; (3) that although the home environment is potentially relevant and inability to use or store a manual wheelchair there is unlikely to be as important as suggested in some previous caselaw; (4) that the availability of manual wheelchairs is a question of fact; in Great Britain at least there are powerful arguments for not requiring there to have been an NHS assessment before use of a manual wheelchair is considered reasonable; (4) the Access to Work scheme may make it unnecessary to consider availability of wheelchairs in each case, if the Secretary of State is able to show that such a scheme will fill any gaps in availability- but if not, the issue will remain a live one, and will need to be addressed in Secretary of State submissions in each case; (5) it is necessary for the Secretary of State to show in decisions or submissions why it was thought that the particular claimant's capability for work should be assessed on the basis that the claimant uses the aid or appliance.

Comment from CPAG

This decision places a lot of onus on the Secretary of State to provide evidence of why manual wheelchair use is reasonable including, possibly, evidence about the Access to Work scheme and from disability employment advisers. Some may consider the reliance on a notional employer's fidelity to Equality Act duties somewhat optimistic.

Summary

The claimant failed the work capability assessment and appealed. The First-tier Tribunal dismissed the appeal and, in doing so, held that regarding Activity 1 of the assessment (mobilising) the claimant was able to mobilise with the aid of either crutches or a manual wheelchair, as she had no problem with her upper limbs. The claimant appealed to the Upper Tribunal.

Judge Gray allowed the claimant's further appeal and remitted the case for consideration by a new tribunal. The tribunal had erred in failing to consider the 'critical' issue of whether either a wheelchair or crutches can 'reasonably' be used (paragraph 6). The new tribunal would have to decide that question. In so holding, the judge made findings on what had to be taken into account in applying the reasonableness test to this question. The judge held that the approach to Activity 1 and to Activity 7 (communication) regarding the use of aids and appliances was, 'if the claimant does not use a particular type of aid or appliance and one has not been prescribed or recommended, then the decision-maker or First-tier Tribunal is entitled to take the view that the claimant should be assessed as if using one only if such an aid can be reasonably used by the claimant, reasonableness of use being considered in terms of the effect such use would have upon their medical condition' (paragraphs 23--25). Initially, it was for the Secretary of State to establish that the aid (eg, the wheelchair) could reasonably be used, and to do so it was insufficient simply to rely on the absence of, or minimal, upper limb or cardiorespiratory problems; that related to the ability to propel a wheelchair, but did not establish that one could reasonably be used (paragraph 26). Use of a wheelchair was qualitatively different from using a walking stick, and use of one had attendant physical consequences such as muscle wasting and, consequently, 'the threshold for whether its use is reasonable must be higher than that of a simple manually used aid which could be discarded without physical consequence' (paragraph 27). The judge later expanded that approach slightly, in holding that the reasonableness test was limited to, '... the medical impact, which will involve consideration of the potential physical and mental consequences for a claimant or appellant' (paragraph 29).

In so holding, Judge Gray approved the approach taken in Northern Ireland by Commissioner Stockman in MG v Department for Social Development (ESA) [2013] NI Com 359 that it was difficult to conclude that a wheelchair can reasonably be used without the person having been referred by their clinicians for a wheelchair assessment (paragraph 27). Conversely, she respectfully disagreed with the decision of Judge Gamble in DM v SSWP [2012] UKUT 376 (AAC) that the reasonableness test involved the consideration of personal circumstances such as living in an unsuitable building (paragraph 29).

Comment from CPAG

In the light of this decision and that in AR v SSWP, the caselaw authority is now weighted in favour of the view that the reasonableness test regarding aids and adaptations is with reference to medical factors rather than personal circumstances. The medical factors under consideration should include both physical and mental medical factors, and it will generally not be appropriate to conclude that use of a wheelchair is reasonable where the claimant has not been referred by her/his doctor for an assessment. As per AR v SSWP, reference to medical factors also includes the ability to get in and out of the wheelchair unaided and to handle the chair when not in it.

Summary

The claimant was considered to have failed the work capability assessment (WCA) on the transfer of his claim for credits for limited capability for work to one for ESA. The First-tier Tribunal dismissed his appeal, and in doing so had no reference to previous medical reports in which he had been held to have incapacity for work. It also disregarded his evidence that he had recently had x-rays taken of his hips and was awaiting the results.

Judge May QC allowed the claimant's further appeal on the basis that the tribunal had erred in not dealing correctly with evidence relevant to the manual dexterity descriptor. However, he held that the tribunal did not err in considering the appeal without reference to the previous medical reports. He also held that regarding the recent x-rays that 'the appeal before the First-tier Tribunal is summary in nature. It is for the claimant to fully prepare his case and gather such evidence as he wishes to advance to the tribunal', and that if he wanted the tribunal to see the results of the x-rays, he should have requested an adjournment (paragraph 3).

Regarding the previous medical reports, the judge disagreed with the decision of Judge Wright in ST v SSWP (ESA) [2012] UKUT 469 (AAC) (Bulletin 232, p14), which held that where the claimant was no better since the last assessment, the Secretary of State was obliged to provide copies of previous ESA85 medical reports, or at least the knowledge that they once existed. For Judge May, that was to go too far, as it was 'not open to the Upper Tribunal to impose general obligations on the Secretary of State' in other cases, and it was not an error of law for a tribunal to decide and appeal without them (paragraph 14). Rather, the absence of previous reports only became an issue 'if is asserted by either of the parties or is considered by the tribunal that the content thereof is material to the decision to be made'. The approach in ST v SSWP was 'wrongly prescriptive' and ran contrary to the intention of regulation 6(2)(r)(i) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, SI No.991, which allowed supersession in ESA cases merely on the basis of the Secretary of State having 'received' a new official medical report. For Judge May, ST v SSWP came 'very close to suggesting that a change of circumstances is required, when applying 6(2)(r)(i)' (paragraph 14).

Comment from CPAG

Arguably, this decision misunderstands ST v SSWP and underestimates the inquisitorial nature of the First-tier Tribunal. ST v SSWP makes no attempt to argue that a decision maker or tribunal can only change a previous decision that the WCA was satisfied on the basis of a change of circumstance. Rather it is aimed at requiring the tribunal to make a properly reasoned decision on the WCA in the light of all the relevant evidence. To put the onus on the claimant insisting on that (and indeed on requesting an adjournment when the tribunal is very aware of forthcoming further evidence) is arguably to understate the inquisitorial, enabling role of the First-tier Tribunal.

Summary

The claimant was a four-year-old child. Her parents were unable to be entitled to HB, as her father was in prison (for a period meaning he could not still be treated as occupying the property), and her mother was a 'person from abroad' and so precluded from entitlement. The local authority refused the claim on the basis that it was not reasonable to treat the claimant as liable to pay the rent. The First-tier Tribunal allowed the claimant's appeal (she was represented by a law centre), holding that she should be treated as liable.

Judge Wright allowed the further appeal of the local authority, and substituted a decision that the claimant was not entitled to HB. The tribunal's reasoning on the issue of whether the claimant should be treated as liable was inadequate. Also (something that did not feature in the tribunal's decision), the claimant did not satisfy the national insurance number (NINO) requirement and so could not be entitled to HB. Regarding the NINO requirement, that was set out at section 1 (1A) and (1B) of the Social Security Act 1998. In particular, subsection (1A) required that, 'no person whose entitlement to any benefit depends on his making a claim shall be entitled to the benefit unless subsection (1B) below applies in relation both to the person making the claim and to any other person in 'respect of whom he is claiming benefit.' For the judge, the words that applied to the claimant were 'the person making the claim', and the person making the claim cannot also be a 'person in respect of whom' the claim is made. That was important, as that meant that the exception from the NINO requirement for children 'in respect of whom' HB was claimed, at regulation 4(1)(b) of the Housing Benefit Regulations 2006, SI No.213, could not apply in this case (paragraph 25). On the facts of the case, the claimant neither had, nor had applied for, a NINO at the time of the claim, and so did not meet the NINO requirement.

Regarding the question of the liability of the claimant to pay rent, the relevant rule was at regulation 8(1)(c). That provided that a person was to be treated as liable if s/he was someone who 'has to make the payments if he is to continue to live in the home because the person liable to make them is not doing so and... he is some other person whom it is reasonable to treat as liable to make the payments'. The tribunal erred in not addressing this properly. Specifically, it had erred in not addressing properly the questions as to whether the person liable to make the payments was not making them, and whether the claimant had to make the payments if she were to continue to live in the home. The tribunal had not made sufficient findings of fact about either of these questions. However, the judge considered that there was no need to remit these matters to a new tribunal, as in any event the claimant was not entitled to housing benefit because she did not meet the NINO requirement (paragraphs 10-18).