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Summary

This decision rejects a challenge that the rules under which payment of DLA in hospital, including for disabled children, ceases after 28 days are in breach of the claimant's human rights under the European Convention on Human Rights ('the Convention').

The claimant was a severely disabled child aged three. He had to go into hospital and after he had been there for 84 days, payment of DLA ceased (under regulations 8, 10, 12A and 128 of the Social Security (Disability Living Allowance) Regulations 1991, SI No.2890). It being accepted that the decision under those provisions was correct, the cessation of payment was challenged on the grounds that the regulations were in breach of the claimant's human rights under the Convention, namely under a combination of Article 1 of Protocol 1 (protection of property) read with Article 14 (prohibition of discrimination), and under Article 8 (respect for family life).

Judge Ward rejected all those challenges. Regarding Article 14, applying the approach in R (RJM) v SSWP [2009] 1 AC 311, the judge accepted that the rules treated the claimant on the basis of his 'status' as a disabled person under 16 entitled to DLA who has to be an in-patient for more than 84 days, as compared with a similar person who does not need to be in hospital for that time (paragraphs 32-35).

So the Article was capable of application to the claimant. However, applying Humphreys v Revenue and Customs Commissioners [2012] UKSC 18; [2012] 1 WLR 1545, the judge held that the difference in treatment had an 'objective and reasonable justification'. The judge had reference to material from Hansard in which ministers explained the policy regarding cessation of payment in hospital, and held that it was based on a legitimate aim of securing economic well-being (paragraph 42). Also, the approach was proportionate to that aim. The judge said, 'I accept that it is permissible in this context for the legislature to draw "bright lines", so as to make distinctions between categories of persons on a relatively broad brush notwithstanding that this might lead to hardship in particular cases' (paragraph 44). The judge accepted the official rationale that patients' disability-related needs were met in hospital by the NHS, and held that even if he were wrong to accept that and that there were a small number of children whose needs in hospital were not fully met, 'that is merely one facet of how a bright line rule operates in practice' (paragraph 46).

The judge also rejected an argument that the claimant, as a very young child, was entitled to different treatment than older children in hospital (ie, more positive treatment), under the principle established in Thlimmenos v Greece (2001) 31 EHRR 15. The 'bright line' rule also dealt with this argument in this context, and in any case the judge was not convinced that the evidence showed that there was a significant difference between the position of very young and older children in this regard (paragraph 54). Finally, regarding Article 8, even given the evidence in this case of the significant extra pressure and difficulties on the family following the cessation of payment of DLA, the judge considered that, 'Family life did continue to be exercised albeit with additional difficulties... can it be said that the State, by failing to continue payment of DLA beyond 84 days, was failing to exhibit respect for that family life? In my view it cannot' (paragraph 58). In any event, any such failure was, in the judge's view, justified as 'no more than necessary' to achieve the aim of securing economic well-being and striking a fair balance between the rights of the individual and the public interest (paragraph 60).

Summary

The claimant was a Polish national with a child aged four. Her applications for child benefit and child tax credit were refused by HMRC. The child benefit was refused on the grounds that the claimant had not shown she was responsible for the child. She was asked to supply documents showing that the child was attending school and registered with a GP. This the claimant did; but as events subsequently showed, these were stored by HMRC in electronic files that related to her parallel appeal against the refusal of child tax credit, a case in which HMRC revised its decision to award tax credits. This information was not accessed by the child benefit section at HMRC, and the claimant's appeal proceeded to the First-tier Tribunal. The tribunal, unable to resolve the issues about the apparently (but not really) missing documentation, rejected the appeal, saying that it did not find the claimant a reliable witness.

Judge Wikeley allowed the claimant's further appeal, substituting a decision that the claimant was at all times responsible for her child, and so remitting the case to the child benefit office for entitlement to be determined afresh on that basis. The tribunal had erred in two ways, firstly by failing to focus properly on the real test, namely that of responsibility for a child for child benefit purposes. The relevant law there (at section 143(1 )(a) of the Social Security Contributions and Benefits Act 1992) was that usually this was shown by the claimant having the child 'living with' her/him. However, instead of looking at that, it wrongly treated the question as though it was 'purely one to do with the production of appropriate documentation (effectively an information requirement)... ' (paragraph 14). Secondly, the tribunal failed to exercise its inquisitorial function and make sufficient findings of fact. No questions were asked about the claimant's domestic arrangements or how the child was looked after. Also, the tax credits appeal was apparent on the notice of appeal, yet no questions were asked about that - which obviously would have assisted as it had already been settled in the claimant's favour. It was unrealistic to have left that to the claimant, as someone unrepresented and having to deal with an unfamiliar bureaucracy and legal system in a second language. The tribunal failed to ask the right questions (paragraph 15).

The judge commented that this was a case about, 'the right hand of Her Majesty's Revenue and Customs (the Child Benefit Office) not knowing what the left hand of HMRC (the Tax Credits Office) was doing. More worryingly, it is a case about the right hand not taking the very simple step of accessing highly relevant information held by the left hand (or at least held on a shared HMRC computer system)' (paragraph 1 ). Also, there was a need for the tribunal to 'take a reality check' (and step back from issues about information requirements) and explore whether there was any further evidence on the central question of whether the claimant was looking after the child (paragraph 20).

Summary

The claimant was a German national. She worked in the UK between 1985 and 2000, and had a daughter with a British national in 2000. The daughter acquired British nationality. Following breakdown of the relationship, the claimant returned to Germany in 2002 and worked there in 2003-06. In 2006 she came back to the UK, with her daughter, intending to live here, having an offer of employment in the UK. But circumstances prevented her from taking up the offer. She was unable to find suitable accommodation and in October 2006 was awarded jobseeker's allowance (JSA), before being diagnosed with breast cancer in December 2006 and claiming income support. Despite evidence that the job offer remained open, her claim was refused on the basis that she failed the right to reside test.

A three-judge panel of the Upper Tribunal (Judges Jacobs, Storey and White) upheld the claimant's appeal, holding that she did have the right to reside. This was on the basis that she was a worker under Article 39 of the EC Treaty (as applied at the relevant time). In particular, she had a right of free movement under paragraph 3(a) and (b) of Article 39 to 'accept offers of employment actually made' and to move freely for that purpose. The Upper Tribunal was satisfied that the claimant had received an offer of employment before leaving Germany and that at least one of the purposes of coming to the UK was to accept that offer (paragraph 31). It considered, on the 'exceptional' facts of this case, that she remained a worker at the time of her claim for income support, as circumstances had conspired to prevent her from being able to take up the offer of employment for a considerable period; but the offer had not been withdrawn, something which it considered significant (paragraph 42).

The Upper Tribunal rejected the arguments of the Secretary of State that the claim for JSA had brought her worker status to an end, and that allowing the claimant a right to reside would create a whole new class of right to reside. There was no 'mutual exclusivity' in holding a job offer and claiming JSA where there was a delay in taking the job up (paragraph 43). There will often be a short delay before taking up a job offer, but only very unusually would that not happen before the expiry of three months (paragraph 41 ). She was not a jobseeker for IS purposes (and so not excluded from entitlement), as she remained a person who had entered the UK as a person holding an offer of employment (paragraph 48). As to creating a whole new class of right to reside, the Upper Tribunal commented that all it was doing was to apply Article 39 to the unusual circumstances before it; usually someone coming to the UK would take up the offer within three months (or the offer would be withdrawn), and did not see its conclusions applying, 'other than in unusual circumstances analogous to those faced by the claimant in this case' (paragraph 61).

Summary

In this decision, an argument that the rule under which a disabled person can be entitled to HB on two homes, where the new property is being adapted, was in breach of human rights grounds as it excluded redecoration was rejected.

The claimant was seriously disabled, required kidney dialysis and needed accommodation in clean and good order to avoid infection. Because of that, he was unable to move into his new dwelling for a period of time even though he was liable for rent on it, as it had been left in a bad state and required redecoration. His application for HB on both his old home and his new home while it was being redecorated was rejected. The First-tier Tribunal rejected his appeal, in particular because in R(H) 4/07 there was binding caselaw to the effect that under the relevant rule (at regulation 7(8)(c)O) of the Housing Benefit Regulations 2006, SI No.213), the adaptation that was provided for related only to a change to the fabric or structure of the property, not to redecoration.

Judge Mesher rejected the claimant's further appeal. The tribunal was correct in applying R(H) 4/07 and (despite an understandable argument that excluding redecoration did not fully allow for all possible adaptations) there was insufficient reason to think that R(H) 4/07 was wrongly decided (paragraph 14). That left the submission that the regulation was in breach of the claimant's human rights under the European Convention on Human Rights. The judge rejected that. Any such argument had to be based on the contention that the rule was in breach of Article 14 of the Convention (prohibition of discrimination) taken with Article 1 of Protocol 1 (protection of property). HB was a possession for these purposes (paragraph 22). However, the judge doubted that the difference between how he was treated and how other disabled claimants who could come within the regulation ware treated amounted to a difference based on some 'other status' or 'personal characteristic', as required. The rule already made provision for disabled claimants (paragraph 23). Even if that were wrong, however, the judge considered any difference in treatment to be justified, as being neither 'manifestly without reasonable foundation' - which, applying his own decision in LH v SSWP (IB) [2012] UKUT 288 (AAC), the judge considered to be the correct test regarding benefits - nor an unfair or disproportionate response (paragraphs 26-29).

Summary

The claimant appealed against decisions that she was not entitled to jobseeker's allowance as she was living together as husband and wife with another person, and that there was a recoverable overpayment. A number of documents in the appeal papers had been redacted (eg, the fraud investigator's log had substantial passages redacted) and a witness statement was quoted from without the witness's name being given. The tribunal rejected the appeal.

Judge Sir Crispin Agnew of Lochnaw Bt QC allowed the claimant's further appeal and remitted the case to a new tribunal. The tribunal had erred in that it had allowed the Secretary of State to rely on the evidence of an anonymous witness, and it was not clear that special circumstances meant that was permissible. The tribunal had, therefore, breached the rules of natural justice and a right to a fair hearing under Article 6 of the European Convention on Human Rights (paragraph 5). Judge Agnew said: 'I am of the opinion that it is not lawful for the Secretary of State to rely on the evidence of an anonymous witness without the express consent of the tribunal, which should only be given in exceptional circumstances' (paragraph 9). Although hearsay evidence (eg, what a witness told the fraud investigator) is admissible, that will only be so if the person who made the statement is named. It is a fundamental principle of a fair hearing that a person is entitled to know the name of their accuser (paragraphs 10-11 ). Anonymity could be granted to a witness only in exceptional circumstances. The basic approach was that the witness's name should be revealed unless it can be shown that out of necessity the witness should be anonymous. In this case, the tribunal had relied on the evidence in anonymous form without giving any thought to the weight to be given to it. That in itself was an error of law (paragraphs 12-16).

Regarding redacted documents, it was not unlawful for the Secretary of State to supply documents for papers to be sent to the claimant that contained redactions. But in that case he should also provide unredacted copies of the documents in a sealed envelope to be available to the judge of the tribunal. It was then for the claimant's representative to object to the redaction or ask for information about what is redacted, and the tribunal judge will then decide whether to disclose the redactions (paragraphs 17-18). However, the Secretary of State 'should be careful about what is redacted and not use it as a matter of course. In the present case large tracts of the Fraud-Investigator's Observation Log are redacted and that immediately raised a concern [sic] about what is being excluded and whether or not it might be of value to the defence' (paragraph 19).

Summary

This decision of a three-judge panel of the Upper Tribunal resolves a split in the caselaw regarding the treatment of dyslexia for DLA, in particular about which 'bodily function' is impaired and whether attention provided in school is outside the scope of DLA, as otherwise there would be unintended 'double provision' from public funds. The decision holds that it could be considered that it is the function of the brain that is impaired, and that attention provided in school can count towards entitlement.

A three-judge panel was convened because of divergent views taken in previous caselaw. On the one hand, Judge May had held in CDLA/427/2006 that no bodily function had been identified as impaired, as the interpretation of writing had nothing to do with the bodily function of seeing, and that educational provision at school is out of the scope of the DLA rules as the cost of such provision, as for DLA, is derived from public funds and Parliament cannot have intended such double provision. On the other hand, in CDLA/1983/2006, Judge Jupp had held at paragraph 18 of the decision (approving another decision in CDLA/3204/2006) that 'ultimately, it may not matter whether dyslexia is considered as part of the bodily function of seeing or alternatively as part of the bodily function of the brain and what matters is substance, not labels... the functions of the brain are included within the term "bodily function".' In the present decision, Judges Charles, Stacey and Gamble agreed with that and disapproved the approach in CDLA/427/2006 (paragraphs 37-8).

Regarding public provision, the judges also disapproved the approach of Judge May in CDLA/427 /2006 and the similar approach he took regarding medical attention provided by a district nurse in CDLA/2349/2010. The judges held instead that 'Parliament did not intend that, of itself, and so without relevant regulations or other statutory provision being made, that publicly funded relevant attention, care or assistance should be discounted when entitlement is being determined' (paragraphs 30- 1 ). With regard to assistance given at school, which the present decision was specifically concerned with, the correct approach focused 'on all of the assistance relied on and thus that given to a child at home and at school' (paragraph 51).

Summary

The claimant claimed JSA on 1 December 2011 . However, her request that it be backdated to 12 September 2011, the date of her 18th birthday, was refused. When at that time her parents had contacted HM RC to report her turning 18, they asked whether she was entitled to any other benefit at that time, and were told by HMRC that there were none. The claimant made her claim only when, later, she found out from what was then the Directgov website that she might be entitled to JSA. The claimant's appeal to the First-tier Tribunal against the refusal of backdating was rejected.

Judge Williams allowed the claimant's further appeal and substituted a decision that her claim be backdated to 12 September 2011. The tribunal had erred in failing to properly apply regulation 19(5)(d) of the Claims and Payments Regulations 1987, SI No.1968 (wrongly cited as 19(5)(e) in the decision transcript). That provided that there could be up to three months' backdating of JSA where the claimant could not reasonably be expected to have claimed earlier and s/he was given information by an officer of the DWP, 'or of the Board' which led her/him to believe that a claim for benefit would not succeed. The reference to the 'Board' was a reference to what is now known as HMRC. Both the DWP and the tribunal had failed to note that, and that failure was an error of law (paragraphs 6-8). The DWP guidance on this rule was wrong in failing also to refer to information from HMRC; and the Secretary of State had indicated to the judge that guidance to officials is to be amended (paragraphs 4-5, 10).

That left the question as to whether, in this case, the claimant could reasonably have been expected to make the claim earlier. Although the facts were not entirely clear, the judge accepted that a combination of erroneous information from HMRC and DWP meant that backdating under regulation 19 should be made to the date sought, 12 September 2011 (paragraph 9).

Summary

In this child support case, the First-tier Tribunal had proceeded with a hearing in the absence of a respondent in the appeal, namely the non-resident parent, even though it was aware that it had the wrong address for him and that notification of the hearing had been sent to that wrong address, as the Child Support Commission told the tribunal that he had notified itof a new address. In its reasons, the tribunal said that it was 'most probable' that he knew of the hearing because post 'would most likely have been passed to him or forwarded on to him', and even if not, it was 'overwhelmingly likely that he knew there was an on-going appeal'.

Judge Jacobs held that tribunal had erred in law. On the facts of this case, by proceeding in the non-resident parent's absence, the tribunal had made an unwarranted finding that he had been notified of the hearing, and (even without that) had broken the rules of natural justice by proceeding. The initial rule engaged here was at rule 31 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, SI No.2685. That provided for a hearing in a party's absence where the tribunal was 'satisfied' that the party had been notified of the hearing or that reasonable steps had been taken to notify her/him, and that it was in the 'interests of justice' to proceed. The judge accepted submissions that the tribunal's finding that the party had 'probably' been notified was unsound as there was no reason to assume that the notification had been passed on, and that it was irrelevant that the party knew of the appeal, as the requirement was to notify him of the hearing (paragraph 13).

Further, held the judge, there was natural justice. The issue was whether the absent party had a fair hearing. Having considered rule 31, the tribunal, 'should have considered whether its conclusion allowed it to give a fair hearing'. Here, the tribunal knew it had the wrong address and showed no concern for the fact that the party had notified the Commission of his new address, suggesting he was not trying to avoid contact. Overall, the judge accepted an argument that there was more the tribunal could have done to ensure a fair hearing; not to have done so was an error of law (paragraph 13).

Summary

In or around May 2019, the claimant received around £27,000 under an ACAS settlement of her employment tribunal proceedings. That comprised sums for loss of employment, statutory redundancy pay and for injury to feelings arising from alleged discrimination. Her claim for UC was refused. She was later told by the DWP that the refusal was for excess capital and so ‘your claim was closed’. In November 2020, she made a new claim for UC and declared that her capital was now at £10,700. She was awarded UC but with the capital leading to assumed income of £82.65 for each monthly assessment period. Following mandatory reconsideration, the claimant appealed, with her substantive argument that, as the capital was not taxable, it should be disregarded. The First-tier Tribunal dismissed the appeal, holding that the decision on the 2020 claim not to disregard any of the capital and apply the stated assumed income from it was correct. The claimant appealed, additionally arguing that the tribunal had failed to investigate the 2019 claim. 

Judge Wikeley dismissed the claimant’s further appeal, holding that the tribunal had made no material error of law. Regarding the capital, the tribunal had agreed with the decision maker that, on the relevant law (in particular, regulations 7 and Schedule 10 of the Universal Credit Regulations 2013, SI No.376), none of the compensation awarded in the ACAS settlement fell to be disregarded. The fact that it was not taxable was irrelevant under that legislation, and none of the disregards that were provided applied. The tribunal was correct. The payment for loss of employment did not fall to be disregarded under Schedule 10, and neither did the redundancy payment. Regulation 75 provided a disregard for compensation for ‘personal injury’, but that term had to be given its ordinary meaning and, as the tribunal had held, ‘damages paid to compensate injury to feelings is distinct from an award of damages for actual injury to physical or mental health (by way of, for instance psychiatric injury)’ (paragraph 27). 

The tribunal had erred regarding its approach to the 2019 claim. The tribunal had held that it had no jurisdiction regarding that as it found that the claimant had not made a claim then. In fact (as accepted by the Secretary of State before the Upper Tribunal), there was DWP correspondence on file which confirmed that a claim had been made in 2019 (and that the claimant’s 2020 mandatory reconsideration was treated as outside the absolute time limit regarding that). So, the tribunal had made a decision not supported by the evidence on that point and was in error. The correspondence showed the claimant was told that she was not entitled to UC and so her claim was ‘closed’. That was wrong as it was not a concept that appeared in the legislation and may have effectively denied the claimant a right of appeal in 2019. However, in this case, none of that rendered the tribunal’s error material to the outcome of the appeal. The tribunal had in any case made a ‘clear and indisputable’ finding of fact that the claimant had capital in excess of the UC capital limit of £16,000 in 2019 and so even if the DWP had followed the correct notification procedure and the claimant had applied in time for a mandatory reconsideration and then appealed, the outcome would have been no different (paragraph 24). 

Summary

The claimant appealed against a decision that, for the purposes of his universal credit (UC), he did not have limited capability for work-related activity, or limited capability for work. He opted to have his appeal determined on the papers. The First-tier Tribunal refused his appeal. The claimant appealed further, arguing that the tribunal had erred in making assumptions about the evidence, in particular that before getting a Blue Badge he must have been parking some distance away from the shop he normally used, and walking, and that therefore his evidence about his abilities was not credible. 

Judge Stout allowed the claimant’s further appeal and remitted the case to a fresh tribunal at an oral hearing. Firstly, the tribunal had erred in failing to give adequate reasons for its decision, as it simply stated that it had considered the relevant law and was satisfied that it had been able to proceed without an oral hearing. That was merely a statement of the rules rather than giving reasons, and so made the error identified by Judge Poynter in JP v SSWP [2011] UKUT 459 (AAC). 

Moreover, the tribunal also erred in failing to adjourn to an oral hearing, so he could respond to matters that fairness required would be put to him in such a hearing. In CC v SSWP (ESA) [2019] UKUT 14 (AAC), Judge Poole had held that in general matters natural justice did not require that matters of inference or credibility must be put to a claimant at an oral hearing. However, the caveat to that was that it would be contrary to natural justice if a case was decided on a basis which the claimant had no chance to address; so, if the matter was new and not foreshadowed in the papers, then specific matters may need to be put to the claimant for comment. Judge Stout considered that applied in the present case. The tribunal said the claimant had ‘considerably exaggerated’ his walking problems in part because of the assumptions it made about his abilities prior to getting his Blue Badge. But the tribunal had ‘just made an assumption about a matter that was not foreshadowed in the papers’ and which the claimant did not have a fair opportunity to address. Additionally, the tribunal had also inferred the claimant was exaggerating because he was not receiving the treatment it expected he would be receiving if his condition were as bad as he claimed. The risks of such an inference without further information had been pointed out by Judge Poynter in MM v SSWP (ESA) [2018] UKUT 446. In the present case, the judge again considered the tribunal had erred ‘...because it was unfair for the tribunal to draw the inferences it did...without giving the appellant an opportunity to respond to its concerns’ (paragraph 13).

Comment from CPAG

Making assumptions and drawing adverse inferences about a claimant’s evidence is especially problematic in the context of a determination on the papers, where there is no opportunity for discussion. For a wider discussion, see the article ‘You’re unbelievable! Tribunals and claimants’ in Bulletin 291 (December 2022).