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Decision in brief

Where put in issue by claimant – ML v SSWP [2013] UKUT 174 (AAC); [2013] AACR 33 right to say that mere fact of the DLA award does not necessarily mean a mobilising descriptor applies – but ML v SSWP is not authority for simply disregarding the DLA award – the evidence behind the award matters and may be relevant for the mobilising descriptors (paragraph 5) – in this case the evidence behind the DLA award was potentially relevant and the DWP ought to have produced it (or been directed to do so) under rule 24 of the tribunal procedure rules (paragraph 7)

Decision in brief

Earnings payable in arrears falls to be attributed forward from the date of receipt rather than backwards over the period in respect of which it was earned (paragraph 15) - local authority approach to the contrary is wrong

Note from CPAG

Guidance in Housing Benefit General Information Bulletin HB G8/2014 (13 August 2014) says the decision must be followed but that ‘ministers have decided that the best approach would be to clarify the situation by an amendment to regulations to state that earnings should be attributed over the period they are earned. We aid to do this as soon as possible in the autumn.’

Decision in brief

Question of whether claimant is in support group can be considered at time termination for time-limiting is to be made – therefore appeal can be made against termination for time-limiting on basis that claimant should be in support group – but if claimant has not raised issue on revision or supersession or in grounds of appeal, it may well be appropriate to strike out an appeal against termination for time-limiting (paragraphs 20–38)

Decision in brief

Rules in the Pension Schemes Act 1993 provide for GMP to be paid on ‘pensionable age’ which in 1993 meant aged 60 for a woman – that has, by an admitted oversight by the DWP, not been amended to reflect progressive equalisation of pension ages for men and women – but the law as it stands must be applied – effect in this case was that a woman claimant had her additional pension reduced at age 60, which meant that the additional retirement pension she inherited from her husband when he died was reduced over a year before she became entitled to state retirement pension

Decision in brief

Whether it needs to be considered by a tribunal depends on all the circumstances of the case – PC v SSWP (ESA) [2014] UKUT 1 (AAC), SP v SSWP (ESA) [2014] UKUT 10 (AAC) and others approved – where it does need to be considered, tribunal deciding that it does not apply should explain why, not just say it was not satisfied that it did apply

Decision in brief

Fact that previous certificates had been issued showing nil recoverable benefit did not prevent another one being issued showing recoverable benefit after the previous ones had expired – certificates of recoverable benefits are time limited and cease to have any legal force on the date stated in them for their expiry

Summary

The claimant had a number of conditions, including depression and panic attacks. She was held to have failed the work capability assessment, and appealed. The evidence before the First-tier Tribunal included a report from the claimant's NHS cognitive behavioural psychotherapist, which included the statements that the claimant had been advised to as far as possible reduce her contact with stressful situations as this has aggravated her depression, and that before returning to work, 'coping skills and support networks' would first have to be in place. The tribunal held that she did have limited capability for work, but held that she did not have limited capability for work-related activity. Its reasons were that the claimant's evidence was considered vague and contradicted by other evidence, and that she could attend interviews because she had been able to meet the tribunal, her NHS psychotherapist and the approved healthcare professional who had examined her.

Judge Mark allowed the claimant's further appeal, and substituted a decision that she was to be treated as having limited capability for work-related activity, as she satisfied the 'substantial risk' rule at regulation 35(2) of the Employment and Support Allowance Regulations 2008. The tribunal had erred in its reasoning in that on the facts there was nothing vague about the claimant's evidence and it was not clearly contradicted. Regarding the finding that the claimant's ability to meet her psychotherapist indicated she was capable (without substantial risk) of work-related activity, the judge said: 'I am wholly unable to understand the rationality of this conclusion. There is a world of difference between attending regular therapy sessions with a psychotherapist and having to attend interviews with DWP employees at the jobcentre' (paragraph 18). Further, there was no evidence from the DWP about the ability of its jobcentre staff to deal with somebody with the claimant's mental health problems and no evidence that steps would be taken to provide the sort of coping skills and support networks referred to by her psychotherapist. Therefore, the tribunal had no facts on which to base its opinion that the claimant was capable (without substantial risk) of work-related activity (paragraph 21).

The Secretary of State should, held the judge, have provided evidence about the sort of activity that the claimant could have undertaken without substantial risk. The scope of the evidence will depend on the facts of the case, but where a claimant has mental health problems and risk was clearly at issue, 'the Secretary of State has a duty under regulation 2(4) of the Tribunal Procedure (First-tier Tribunal)(SEC) Regulations 2008 to provide evidence' about that (paragraph 24-the rule concerns the duty of parties to the appeal to assist with dealing with a case fairly and justly and co-operating with the tribunal). Previous authority on the duty of the Secretary of State to provide sufficient evidence in such cases (AH v SSWP [2013] UKUT 118 (AAC); ML v SSWP [2013] UKUT 174; MT v SSWP [2013] UKUT 545) was cited and approved (paragraphs 27-29). Finally, on the facts of this case there was no evidence supplied about the relevant training or qualifications of the staff at the jobcentre or the arrangements that would be put in place to provide the required 'coping skills and support network'. The judge concluded that it was 'more likely than not' that 'the likely approach of the DWP to the claimant, if she were found not to have limited capability for work-related activity, would have posed a substantial risk to her mental health at a time which was plainly a crisis time for her'. There was, therefore, no point in remitting the case to a new tribunal, and the judge substituted a decision that the claimant satisfied regulation 35(2) and so was to be treated as having limited capability for work-related activity (paragraphs 32-36).

Comment from CPAG

In another recent decision, RV v SSWP (ESA) [2014] UKUT 56 (AAC) (4 February 2014), the same judge found (at paragraph 11) that in that case, which concerned a claimant with deep vein thrombosis, the tribunal was able, in the absence of evidence from the Secretary of State, to 'rely on its own knowledge, if adequate', provided that it told the claimant what that knowledge was and gave her an opportunity to comment on it. See also the article in Bulletin 293, p5.

Summary

The claimant was a Lithuanian national. He came to the UK in May 2005. He worked for varying amounts of time between then and 2010, sometimes in short-term work and self-employment, but did not work in registered employment for a year or more - ie, he remained subject to the restrictions that applied to AS nationals until 30 April 2011. In February 2011, he claimed JSA and was refused on right to reside grounds. His appeal to the First-tier Tribunal included arguments that the restriction on AB nationals retaining worker status unless they had completed a year's registered work (the 'derogation' from the retained worker status provision) was unlawful, and that he had completed five years with a right to reside as a self-sufficient person with comprehensive sickness insurance, and so acquired a permanent right to reside. The tribunal rejected his appeal.

Judge Ward allowed the claimant's further appeal, but substituted a decision that the claimant did not have a right to reside. The tribunal had erred in holding that it had no jurisdiction to consider the validity of derogation point, and in not property explaining its reasoning on the self-sufficiency point. However, the judge did not decide the derogation issue, as on the facts he considered that the claimant could not in any case have retained the status of worker, primarily because there was too long a gap between ceasing work and the JSA claim under consideration.

On the self-sufficiency point, the test under Article 7 of the Directive was whether the claimant had 'sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness cover in the host Member State'. For the judge, that meant that the claimant must have 'resources' and, where he intended to rely on the acquisition of permanent residence after a period of five years of self-sufficiency, those resources would need to be adequate for the five years. The judge said: 'In my view the question, whenever asked, remains: was the person at the beginning of year 1 - and in principle at any other times in the period able to show sufficient resources to meet the test? I do not accept that a person who could not meet the test on that basis could simply lie low for five years and through a combination of luck and an unusually frugal lifestyle avoid being any kind of burden to the social assistance system and then argue that they have retrospectively shown that they had throughout the resources to be self-sufficient' (paragraph 84). As to 'resources', that could mean, for example, an occupational pension, maintenance payments or capital. In the claimant's case, apart from the limited periods when he was in employment under a worker's registration certificate, he was reliant on uncertified short-term employment and 'unproven' self-employment. For the judge, that was 'inconsistent with the degree of reliability necessary to represent resources to see him through the five-year period needed to achieve the right of permanent residence' (paragraph 89). Further, work gave rise to a right to reside as a worker, and a worker could not 'assert that his earnings as a worker entitle him to be treated as a self-sufficient person' (paragraph 92). For comprehensive sickness insurance, the claimant relied on his access to free NHS treatment. But the judge considered that insufficient (except in cases where the cost of NHS treatment was met so that the UK did not bear the cost). He considered himself bound (and in any case agreed with) the Court of Appeal in FK (Kenya) v SSHD [2010] EWCA Civ 1302, which held that NHS treatment was not sufficient, as itself constituting a burden on the social assistance system (paragraph 101-5).

Note: regarding comprehensive sickness insurance, this decision is followed in SSWP v LL (SPC) [2014] UKUT 136 (AAC). But in SA (Pakistan) v SSHD (an immigration case), leave to appeal to the Court of Appeal has been granted so that the Court may consider whether to make a reference to the ECJ on this point.

Summary

The claimant was registered blind. She suffered from retinitis pigmentosa, and although she had some visual ability indoors with ambient lighting, her vision out of doors was extremely poor. She was awarded the low rate of the mobility component, but was refused the high rate on the grounds that she did not satisfy the blind or severely visually impaired criteria. That was because she did not satisfy the relevant criteria as set out on the 'Snellen scale', a test applied indoors with specific ambient lighting. The First-tier Tribunal allowed the claimant's appeal on the basis that she would pass the criteria when outdoors. The Secretary of State appealed.

Judge Sir Crispin Agnew of Lochnaw Bt QC allowed the Secretary of State's appeal and substituted a decision that the claimant was not entitled to the high rate of the mobility component. The relevant rule was at regulation 12(1A) of the Social Security (Disability Living Allowance) Regulations 1991. The tribunal had erred in applying an out of doors test. It had been held in SSWP v MS (DLA) [2013] UKUT 267 (AAC) (file number CDLA/1899/2012) that the Snellen test was an objective test and that the claimant therefore either satisfied that test and qualified for the high rate, or did not. The judge agreed with that (paragraph 19), and as the claimant did not satisfy the Snellen test, she did not qualify.

However, the judge considered that regulation 12(1A) breached Article 14 (prohibition of discrimination) of the European Convention on Human Rights ('the Convention'). He considered the regulation clearly discriminatory in that it discriminated 'between persons who have a visual acuity that is the same in the consulting room taking the Snellen test as it is outdoors and persons that have a particular Snellen test reading in the consulting room, but whose visual acuity outside is significantly worse' (paragraphs 22-23). The judge accepted the test for whether such discrimination was unlawful (ie, not justified) was whether it was 'manifestly without reasonable foundation'. But there was nothing to suggest that the Secretary of State had really addressed the situation where a person might have better visual acuity indoors than s/he did outdoors; he held therefore that regulation 12(1A) 'has no reasonable or objective justification and is accordingly ultra vires' (paragraph 37). For the same reasons, the Secretary of State had failed in his equality duty that then existed under the Equality Act 2006 (paragraphs 40-42). However, the outcome of the appeal was still that the claimant was not entitled to the high rate. That was because the judge considered he could not construe regulation 12(1A) in a way that was compatible with the Convention (paragraph 39), and that he did not have jurisdiction to reduce or set the regulation aside; besides which there were claimants who did satisfy the regulation and needed it to get the high rate. Therefore, he had 'not made a formal decision that the regulation is a nullity', and it was 'for the Secretary of State to consider what action should be taken to amend the regulations so as not to discriminate against persons such as the claimant in this case' (paragraph 44).

Comment from CPAG

The outcome of this decision is that regulation 12(1A) stands, despite the judge's clear view that it contravenes the Convention. It would seem that the next step is up to the Secretary of State, and it is very much hoped that the decision will be to alter the regulation so as to make it compliant. Thanks to David Hornell of North Ayrshire Council, the claimant's representative, for sending us this decision.

Summary

The claimant lived in rented accommodation with another person (who happened to be his ex-partner) as joint tenants. The property consisted of one living room, two bedrooms, two bathrooms and a kitchen. The local authority having decided (eventually) that the claimant and his partner maintained separate households, nevertheless decided that as they shared a kitchen and the claimant did not have 'exclusive use' of at least two rooms, the maximum rent for HB had to be assessed under the one-bedroom shared accommodation criteria. The claimant appealed, arguing that he did have exclusive use of rooms and that therefore the one-bedroom self-contained criteria should apply instead (ie, with the result of an increased amount of benefit). The First-tier Tribunal dismissed the appeal.

Judge Wright dismissed the claimant's further appeal. The tribunal had not erred in law in deciding that the claimant did not have 'exclusive use' of rooms. In so holding, the judge was required to decide what 'exclusive use' meant in this context- ie, in the context of regulation 13D(2) of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006. But, as the judge made clear, the equivalent regulation (also 13D) in the Housing Benefit Regulations 2006, was in the same form, so the decision will also apply in that context. In particular, the judge was required to decide if 'exclusive use' meant exclusive use in the practical sense of rooms that the claimant had control over and sole use of (as contended for by the claimant) or if it meant a legal right to exclude others from the rooms (as applied by the tribunal).

The judge held that 'exclusive use' meant a legal right to exclude others from the rooms, and not just the practical situation of being able to exclude all others (paragraph 4). In so holding, he applied and approved the identical finding of Judge Wikeley in M v Chesterfield Borough Council v SSWP (HB) [2011] UKUT 156 (AAC) (Bulletin 224, p17). Although the finding in that case was obiter (ie, not necessary to the decision and so not formally binding), Judge Wright considered it correct (paragraph 25). In this case, the claimant was a joint tenant and did not have the legal right to exclude all others from the rooms, and so (in the absence of any of the exceptions applying) the one-bedroom shared accommodation criteria applied.

Decision in brief

Limited capability for work - manual dexterity (Activity 5) - inability to use 'a suitable keyboard or a mouse' - points not scored if claimant either can use a keyboard or can use a mouse - contrary finding in CL v SSWP (ESA) [2013] UKUT 4345 (AAC), which held that a claimant needs to use both a keyboard and a mouse, disapproved - to the extent that it implies the same as CL, OW v SSWA (ESA) [2010] UKUT 245 (AAC) also disapproved - functional approach is the correct broad starting point (GS v SSWP (ESA) [2010] UKUT 244 (AAC) approved) - overall structure of Activity 5 suggests intention was to require inability to use both keyboard and mouse - HD v SSWP (ESA) takes a different approach to use of 'or' in support group mobilising descriptor, but that makes sense in that particular context

Decision in brief

'Cannot either... or' wording means cannot carry out 'one or other of (a) or (b)' - so unless a claimant cannot both mobilise 50 metres and do so repeatedly within a reasonable time they should be placed in the support group (paragraphs 4-6)

Note from CPAG

See also DG v SSWP (ESA), and the article in Bulletin 239, p5.