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Decision in brief

Although apparently provided for under section 9(2)(a) of the Tribunals, Courts. and Enforcement Act 2007, it is prevented by rule 40(2)(a) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (which allows review only on an application for permission to appeal).

Decision in brief

GP issued a Med 3 'fit note' very soon after decision under appeal - tribunal should have taken the Med 3 into account in considering on appeal whether there was any work the claimant could do without substantial risk - tribunal needed to consider 'what the very issue of the certificate implied about the impact of the conditions, taken as a whole, on the claimant's ability to work' (paragraph 8)

Decision in brief

Ends after 13 weeks or when the limited capability for work determination is made, whichever is the later, does not end automatically after 13 weeks where no limited capability for work determination has been made - SSWP v NC (ESA) not in error

Summary

The claimant was entitled to income support (IS), HB and council tax benefit (CTB). After starting full-time work, she notified the change promptly to the Jobcentre that administered her IS; she also said that she had informed the local authority at the same time (both by telephone and completing a form). Complications then arose because of the failure of both the DWP and the local authority to act, and an overpayment arose. The claimant appealed , arguing that the HB and CTB overpayment were not recoverable from her, as they had been caused by official error and she could not reasonably be expected to have realised that an overpayment was occurring. The First-tierTribunal allowed the appeal, the judge accepting that she was a credible witness and accepting her evidence that she had notified the local authority, even though the local authority said that it had no record of that.

Although finding that, on the facts of the case, the tribunal's decision was in error in failing to identify that the appeal had at one point lapsed, Judge Poynter re-made the decision and held that the overpayments were not recoverable from the claimant. They had been caused by official error and the claimant could not reasonably have been expected to realise that she was being overpaid. The tribunal judge had not erred in law in deciding that, on the facts of this case, it was probable that the claimant had notified the local authority.

The judge rejected the local authority's argument that to have accepted the claimant's account was 'perverse' as no tribunal could reasonably have concluded as it did, and it was based on an unjustified assumption that the claimant acted as she said she had. Although it was true there was a tension between the claimant's account and that of the local authority, resolution of such conflicts was 'quintessentially a matter of fact' for the First-tier Tribunal (paragraph 52). Although it was indeed an error of law to make a perverse decision, the decision in this case was not perverse. The local authority's argument here 'amounted to an assertion that no tribunal could reasonably have come to the view that Islington's procedures ever worked less than perfectly. That is not the case. Islington's procedures.sometimes fail to operate correctly ... the same is true of every other local authority; and of the DWP and HMRC; and indeed of the FTT, the Upper Tribunal and of every other human institution' (paragraph 53). It was up to the judge to decide what had happened. It was true, as argued by the local authority, that it was not uncommon for claimants to omit to notify the local authority of changes that they had told the DWP about. But it was also the case 'that many claimants do notify both the DWP and the local authority of changes in circumstances as soon as reasonably possible after those changes occur. The question in this case was whether it was more probable than not that the claimant had done so' (paragraph 56).

Summary

The claimant was transferred from incapacity benefit to ESA (ie, was found to have limited capability for work), but was placed in the work-related activity group. The decision maker considered that although the claimant scored insufficient points, she was to be treated as having limited capability for work on the basis of the exceptional circumstance rule. The claimant, who was represented by a solicitor, appealed on the basis that she should be in the support group, arguing that either a relevant descriptor applied or that the exceptional circumstance rule for limited capability for work-related activity applied. The First-tier Tribunal dismissed the appeal, and also revisited the limited capability for work part of the decision. The tribunal decided that although the claimant did indeed have limited capability for work, it was on the basis of scoring sufficient points rather than the exceptional circumstance rule.

Judge Jacobs dismissed the claimant’s further appeal. In so doing he held that the tribunal was entitled to reconsider the claimant’s limited capability for work (ie, the points scored under Schedule 2 of the Employment and Support Allowance Regulations 2008, SI 2008 No.794), even though she had appealed about the support group (ie, limited capability for work-related activity under Schedule 3 of the Regulations). ESA was a single benefit with all aspects of entitlement dealt with in a single decision, and the limited capability for work-related activity part of the decision could not be severed from other parts of the decision (paragraphs 11–15). Further, in this case, the tribunal was obliged to deal with the limited capability for work part of the decision. Under section 12(8)(a) of the Social Security Act 1998, a tribunal ‘need not consider any issue that is not raised by the appeal…’. That leaves, in essence, discretion to consider such issues. However, in this case the fact that the claimant contended that descriptors in the limited capability for work-related activity assessment (at Schedule 3) applied to her obliged the tribunal also to consider if in fact the limited capability for work assessment was satisfied via the points score at Schedule 2 – as if a Schedule 3 descriptor applied then it followed that the points score in Schedule 2 must also have been satisfied. It would have been different if the claimant had argued only that she had limited capability for work-related activity via the exceptional circumstances rule – in that case the tribunal would not have been obliged to consider Schedule 2 (paragraphs 17– 26).

The judge also held that in this case the tribunal was not obliged to warn the claimant that it was minded to reconsider the limited capability for work issue. In some cases that was appropriate and perhaps necessary; in this case, however, the claimant was represented by competent solicitors and the tribunal was entitled to assume that the solicitors understood the legislation and had advised the claimant accordingly. That was different from a situation where there was an unrepresented claimant or one with an inexperienced representative unfamiliar with the legislation (paragraph 27).

Summary

The claimant was in receipt of tax credits as a single person. HMRC discovered that she was still living in the same house as her husband and issued revised decision notices declaring her entitlement to be nil – ie, because she should have been claiming as a couple. She appealed and explained that in no way did she maintain a relationship with her husband, was in a new relationship but did not live with her new partner, and had been unable to leave the matrimonial home due to financial constraints. HMRC responded that they should have made a joint claim as they had children, a joint mortgage and bank account, the husband paid the mortgage and had made loan applications from the shared address. The First-tier Tribunal dismissed the claimant’s appeal, holding that ‘under Income Support regulations’ a couple (that is, a married couple) were stated to be members of the same household, and on the evidence there was a shared household, and the couple were not separated.

Judge Wikeley allowed the claimant’s further appeal, and substituted a decision that on the facts the claimant was entitled to tax credits as a single person. The tribunal had erred in applying the wrong test – ie, in adopting the social security (income support) test for married couples. That did refer to being members of the same household; however, the test for tax credits did not (paragraph 40). In fact, the relevant test for whether people married to each other are a couple for tax credit purposes is at section 3(5A)(a) of the Tax Credits Act 2002, and says that such people are a couple if they are neither ‘separated under a court order’ nor ‘separated in circumstances in which the separation is likely to be permanent’. The judge accepted that whether there was a single household could be a highly significant consideration in deciding whether a couple not separated under a court order were likely to be permanently separated; however the judge said that if the emphasis put on that by Judge Lane in HMRC v TD (TC) [2012] UKUT 230 (AAC) was intended to suggest that a shared household necessarily and inevitably meant that the couple were not separated, then he must respectfully disagree (paragraphs 28–30).

Rather, the test of separation ‘must focus on the relationship between husband and wife, and a married couple may be separated whilst living in the same household, whether or not they have a court order to that effect’ (paragraph 36). On the facts of this case, the judge accepted that although sharing a household the claimant was likely to be separated permanently from her husband, and therefore she was entitled to tax credits as a single person.

See the article in Bulletin 240, pX.

Summary

In this decision it was held that the rule (at regulation 20(2)(a) of the Housing Benefit Regulations 2006, SI 2006 No.213) in which, in a shared care case, a child is treated as ‘normally living with’ the person who is getting child benefit for her/him, with the result that the other parent cannot include the child in her/his HB claim, is not unlawful.

The claimant asked that his son be included in his family for HB purposes, on the basis that he had exactly equal shared care for him as the son spent 26 weeks of the year with him, and he had a residence order for the son. Although none of that was disputed, his request was refused on the basis that the claimant was not in receipt of child benefit for his son. The claimant’s appeal against the decision was dismissed by the First-tier Tribunal, who rejected his argument that the rule at regulation 20(2)(a) unlawfully discriminated against men in contravention of Article 14 of the European Convention on Human Rights read with Article 1 of Protocol 1.

Judge Wright rejected the claimant’s further appeal, holding that although fathers in equal shared care cases were indirectly discriminated against by the child benefit linking rule at regulation 20(2)(a), that discrimination was justified (and so not unlawful) as it was not manifestly without reasonable foundation (paragraphs 5 and 49). The leading case on indirect sex discrimination in the UK social security scheme was that of the Supreme Court in Humphreys v Her Majesty’s Revenue and Customs [2012] UKSC 18; [2012] AACR 46. Although that was not about a child benefit linking rule, it was relevant regarding the lawfulness of a ‘no-splitting’ of benefits rule in which benefit goes to only one parent in a shared care case. In Humphreys, it was held that if there was indirect sex discrimination it will be justified (ie, not unlawful) unless it is manifestly without reasonable foundation (paragraphs 29–32). Reviewing the evidence, Judge Wright was satisfied that the child benefit linking rule at regulation 20(2)(a) indirectly discriminated against men, but also that (given various factors including the purpose of HB, administrative convenience and that, as in Humphreys, it was state support for children could rationally be seen as separate from the way in which children spend their time) the rule was not manifestly without reasonable foundation (paragraphs 33–48; 49–64).

Summary

The claimant was considered to be living together with another person 'as if they were civil partners' (ie, cohabiting as a couple with someone of the same sex) and, as the alleged partner was in full time work, not entitled to IS. The claimant was a woman who owned her home jointly with another woman, 'Ms R'. They had a joint mortgage and a joint account for that. They both lived in the house. However, the claimant said she was not in a couple with Ms R, and had not had a relationship since the death (in 1976) of her husband. She described Ms R as a friend and companion. Ms R said that she had become more of a carer for the claimant as her health had deteriorated. The First-tier Tribunal rejected the claimant's appeal, on the basis that there was evidence of a shared household and a degree of financial interdependence which went far beyond friendship.

Judge Levenson allowed the claimant's further appeal and substituted a decision that the claimant was not a member of a couple. The tribunal, as the Secretary of State conceded, had not given adequate reasons for not accepting the claimant's explanations as to why she was living in the same house as Ms R (paragraph  16). Also, the tribunal had not approached the question of whether the claimant was cohabiting correctly. He noted the recent decision of Judge Jacobs in PP v Basildon District Council [2013] UKUT 505 (AAC), which had pointed to problems with the traditional 'signposts' of cohabitation, and emphasised the importance of an emotional relationship to the concept.

Judge Levenson did not disagree with that, but said: 'However, the very fact that a party denies that there is an emotional relationship in itself severely undermines the notion that there is such a relationship and in my opinion it would requirevery strong evidence indeed (and more than just disbelieving the claimant or witness) to displace that denial' (paragraph 31 ). Furthermore, the judge considered that public acknowledgement of the relationship was essential. For cohabitation to be shown, 'a committed emotional loving relationship must be established and publicly acknowledged ... an unacknowledged relationship cannot be the equivalent of marriage or a registered civil partnership which are, in their very nature, public acknowledgement of an emotional relationship ... it is for those alleging [cohabitation] to prove that there is a publicly acknowledged committed emotional loving relationship' (paragraph 33).

Summary

The claimant had problems with his legs and knees, and could not read. He failed the work capability assessment. On appeal, it was argued that he should be treated as passing the assessment (ie, as having limited capability for work) on the basis that the ‘substantial risk’ exceptional circumstance applied in his case. Dismissing his appeal, the First-tier Tribunal noted that following the death of his wife in 2001 the claimant appeared to be socially isolated and that going to work, where he would meet others, would be good for his mood and it was not unreasonable to expect that.

Judge Jacobs allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred in failing to deal with the claimant’s case, which was about his physical health problems and the attendant risk regarding that should he be held to fail the work capability assessment – there was no evidence about the claimant’s mental state at all (paragraphs 7–8). Most fundamentally, the tribunal misunderstood the nature of the substantial risk rule, at regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008, SI 2008 No.794. That rule, said the judge, ‘is concerned with risk, not benefit. The tribunal should have investigated and considered what risk, if any, would be involved in finding the claimant fit for work…If a substantial risk is established, the provision applies. And it applies even if it is accompanied by some chance improvement in the claimant’s condition. It is not permissible to ignore that risk or to decide that it is a price worth paying for that eventual benefit’ (paragraph 10).

Decision in brief

Comparator accommodation – applying R(IS) 12/08 and Ahmed v Secretary of State for Work and Pensions [2011] EWCA Civ 1186, a strict approach was needed to construe what was the accommodation which was occupied before the acquisition by the claimant – in this case, a period of 22 months before leaving unsuitable rented accommodation and buying the purchased property could not be ignored, and so the tribunal was right to use that as the comparator property (paragraphs 35–41) – that property was physically much the same as the purchased property – although moving in to their own home gave the family more independence and some psychological benefits, that was a universal feature of all people including non-disabled people, and so could not render the purchased property more suitable to the special needs of a disabled person (paragraph 42)

Decision in brief

Claims and tribunals – local authorities are not free to follow their own procedures when administering claims for council tax benefit or housing benefit – Kettering Borough Council illegally demanded that the claimant should provide further information within less than half the minimum one month prescribed by regulations – tribunal wrongly struck out appeal for failure to comply with a direction – circumstances under which that is justified will be exceptional – in this case the failure to comply did not prevent the making of a fair and just decision – tribunal has an enabling role and if a claimant sets out her/his case and waits for the tribunal to give its decision that is legitimate and not a basis for striking out

Decision in brief

Full evacuation or voiding not required - sanitary pads are aids that may result in their being no need for a change of clothing - almost any change of clothing would count (but pads are not clothing) - fact that claimant loses control because of mobility problems in getting to the toilet does not preclude application of the continence descriptor.