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Summary

This decision of a three-judge panel of the Upper Tribunal (Judges Ward, O'Connor and Wright) dismisses an argument that the abolition on 14 June 2007 of the rule which allowed backdating of IS (to the date of the asylum claim) following the granting of refugee status was unlawful. The Upper Tribunal held that the change did not breach European Union law or breach the claimant's human rights.

The claimant claimed asylum either in 1997 or 2005 (the facts were not clear), and after an appeal, was granted refugee status on 9 July 2008- Ie, after the abolition of backdating. Therefore, despite her request for backdating, under domestic UK law her entitlement to IS could not be backdated to before 19 July 2008.

The claimant argued that the refusal of backdating was in breach of EU law, in essence because her recording as a refugee merely declared her to be a refugee for all past periods, throughout which she had fulfilled the refugee criteria in the Geneva Convention. Given that, she argued, the refusal of backdating was in breach of Article 28 of Directive 2004/83/EC. The Upper Tribunal considered that neither the Geneva Convention nor the Directive required backdating of IS to be allowed. It considered in particular that Article 23 of the Geneva Convention (which required granting of the same treatment to refugees 'lawfully staying' zin the country as to nationals of the country) did not have retroactive effect; rather, it applied only once it had been recognised the refugee was 'lawfully staying' in the country, and so the right was 'only forward-looking' (paragraph 44). Regarding Article 28 of the Directive (which provides that member states shall ensure those with refugee status shall receive the same necessary social assistance as that provided to nationals of the member state), again the Upper Tribunal considered that a right 'that looks forward only from the point the Member State has granted "refugee status"... ' (paragraph 50). Reviewing the wording of the Article, its definition and relevant authorities, the Upper Tribunal held that it had no retroactive effect (paragraphs 51-71).

Regarding the alleged breach of human rights, which was that she had been unlawfully discriminated against, it was common ground that the Upper Tribunal could not provide the claimant with a remedy even if her arguments on that were correct (remedy would require further appeal), so the argument was dealt with briefly. The Upper Tribunal considered that even on the assumption that, as argued by the claimant, her claim for backdated IS fell within the ambit of Article 1 of Protocol 1 to the European Convention on Human Rights, that being a refugee is a 'status' under Article 14 and that she could show a comparator group by comparison which she was discriminated against, any discrimination was 'plainly justified'. That was because all the rules changed to on the abolition of backdating was to become one 'that conforms with the UK's international obligations' under the Geneva Convention and the Directive. The judges could not see how it could be argued that it was 'manifestly without reasonable foundation' (which was the relevant test) for the UK to bring the rules into line with those law (paragraphs 72-4).

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.