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Decision in brief

Application of earnings rule at regulation 8 of the Social Security Benefit (Computation of Earnings) Regulations 1996 – tribunal wrongly based finding that each month’s actual earnings were to be used (under regulation 8(1)(b)(i)) rather than averaged on a work cycle of a year (under regulation 8(3)) on a consideration that it was not ‘irrational’ for the Secretary of State not to have used the yearly cycle under regulation 8(3) – error of law for the tribunal to review the rationality of the Secretary of State’s decision when it should have decided afresh and for itself whether to use the discretion to apply regulation 8(3)

Summary

The claimant had a prosthetic eye and other difficulties with her vision, as well as anxiety and depression. Her appeal against the decision that she was not entitled to personal independence payment (PIP) was dismissed by the First-tier Tribunal. The tribunal made findings of fact that the claimant would have been able, over time, to adjust to having had an eye removed, on selected information from the RNIB website but without putting that to the claimant or giving her a chance to comment. 

Judge Stout allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred in failing to make adequate findings of fact regarding the claimant’s visual ability and not observing fairness in the way it used the website information. That arose from having made selective use of the information on the RNIB website and in not having given her a chance to comment on it. 

In its statement of reasons, the tribunal presented the information taken from the website as the expert view of the medical member. Judge Stout said: ‘It is well established that where a tribunal uses its specialist knowledge or expertise to decide an issue, fairness will normally require it to give the parties an opportunity to comment on its thinking and to challenge it: R (L) v London Borough of Waltham Forest [2003] EWHC 2907 (Admin), [2004] ELR 161. See also MB v Department for Social Development (II) [2010] NICom 133, C1/10-11(II) at [14] and Harrow LBC v AM [2013] UKUT 0157 (AAC), [2013] ELR 351. That, it seems to me, is even more important where, as appears to have happened in this case, the specialist tribunal is not truly using its own expertise but material from a website that it has not shared with the appellant. The fact that the tribunal has made selective use of the website material, ignoring the passages from the website that support the appellant’s case as to her need for assistance, increases the unfairness in this case’ (paragraph 11). 

Comment from CPAG

The tribunal’s error in the way it used information taken from the website is clear enough. It might have been described more explicitly as a breach of the rules of natural justice (although the result would have been the same).

Decision in brief

Regulation 48 of the ‘ADP Regulations’ applied and no barrier to taking the change into account in this situation – given failure to do so, tribunal were obliged to apply regulation 48, and so its decision including reflecting increased entitlement from a certain date in light of the change was not unlawful

Comment from CPAG

This decision would seem to be based on the application in a redetermination of regulation 48 – ie, where the claimant already has entitlement and Social Security Scotland is aware of a change of circumstances. It would not appear to be directly relevant in a redetermination/appeal where the claimant has no ongoing entitlement, even though their circumstances have changed.

Decision in brief

Start date of PIP award where claimant initially had a ‘negative determination’ of PIP claim and termination of DLA (for failure to attend medical), but that was subsequently reversed on appeal and PIP award made – regulations 13 and 17(2)(b) of the Personal Independence Payment (Transitional Provisions) Regulations 2013 apply, so as to make the start date of PIP award from the date of the termination of the DLA award – RS v SSWP (PIP) [2016] UKUT 85 (AAC) wrongly applied by tribunal, as that applied the general rule in regulation 17 (under which the start date was after a 28-day period in which the DLA award continued), and was not purporting to lay down a universal rule and was subject to the exception in 17(2)(b)

Summary

In this case from Northern Ireland, the claimant had leg injuries, pain in h.is lower back and right hip, and used a walking stick, although with consequent elbow and wrist pain. He failed the work capability assessment (WCA). His appeal to the First-tier Tribunal was rejected; among the tribunal's findings was that he could mobilise in an unrestricted way if he 'resorted to using a wheelchair'. The tribunal considered that reasonable as it considered that he had adequate upper body function.

Commissioner Stockman allowed the claimant's further appeal and remitted the case for a fresh First-tier Tribunal. The tribunal had erred in not making sufficient findings of fact regarding how far the claimant could mobilise in a wheelchair (paragraph 53). However, the Commissioner did not find that it was unreasonable for the claimant to use a manual wheelchair, which is one mode of mobilising included in Activity 1 of the WCA. He rejected an argument that the tribunal should have had reference to practical matters, such as whether the claimant would be able to afford a wheelchair and whether the claimant's home would have to be adapted or whether he had sufficient space to store a wheelchair. In so holding, he expressly disagreed with the decision of Judge Gamble in DM v SSWP [2012] UKUT 376 (AAC).

The Commissioner considered that the practical approach, with reference to the claimant's circumstances as suggested in DM v SSWP, departed from what he considered to be the correct 'functional' approach suggested by Judge Jacobs in GS v SSWP [2010] UKUT 244 (see Bulletin 218, p15). There, regarding descriptors concerning manual dexterity and ability to do and undo buttons, Judge Jacobs had held (at paragraph 13) that' ... the tribunal was wrong to consider the practicalities of dressing, the type of shirt and so on', and also that (at paragraph 14), 'The First-tier Tribunal should focus on the claimant's functional ability to perform the particular aspect of the activity covered by a descriptor'. For Commissioner Stockman, focusing on functional ability was correct, and that when it came to considering reasonableness that 'should be judged purely in the context of its potential use to enhance functional ability. Matters which go beyond functional ability cannot be relevant to the question of whether wheelchair use is reasonable in the context of the "Mobilising" descriptor' (paragraph 40). This meant that reference to matters Uke whether there were steps to the claimant's front door or whether he had sufficient storage space for a wheelchair were not directly relevant, and that to the extent DM v SSWP suggested that it was relevant to consider the practicality or suitability of a wheelchair from the perspective of a claimant's living arrangement, the Commissioner disagreed (paragraph 41).

That left how to assess whether wheelchair use was reasonable. Firstly, it was important to recall that under regulation 19 of the Employment and Support Allowance Regulations 2088, SI No. 794, a claimant's ability was assessed as using any aid or appliance 'which is normally worn or used'. For the Commissioner, that means whether a wheelchair would 'normally be used by a person with the appellant's degree of walking disablement' (paragraph 43). In the absence of actual or recommended use by the claimant, that should be assessed by considering whether or not the claimant had been referred for assessment for use of a wheelchair under NHS arrangements and whether that assessment recommended wheelchair use for the claimant. If so, practicalities regarding things like home adaptations are part of the assessment, but did not themselves need to be addressed for the purpose of the WCA descriptor (paragraphs 44-47). Only once it is accepted that a claimant could reasonably use a wheelchair does it fall to be considered whether the claimant's physical ability to use one (eg, with reference to her/his upper body strength but also things Hke respiratory, cardiac or neurological conditions) come into play (paragraphs 49-50). In this case, the tribunal had failed to make adequate findings about the distance for which the claimant could propel himself in a wheelchair.

Comment from CPAG

Regulation 19(4) was amended from 28 January so as to consider any aid or appliance, not only which was 'normally' worn or used but also those which could 'reasonably be expected' to be worn or used. It is, therefore, clear that the legislation involves a reasonableness test throughout. But the tension between this decision and GS v SSWP on the one hand and DM v SSWP on the other, on the question of whether practicalities and the claimant's own circumstances can be considered, will probably require further resolution. In the meantime, it may be borne in mind that the present decision is not formally binding in Great Britain; however, given its close alignment with GS v SSWP (which is), that seems unlikely to resolve things- and it has been highlighted by the Upper Tribunal. Tribunals can either apply the purely functional approach of the present decision, or the broader practical approach of DM v SSWP. For now, it would be wise for claimants first to see if they can bring themselves within the (admittedly narrower) functional approach. Commissioner Stockman's suggestion of considering the outcome of an NHS assessment for a wheelchair may be helpful there.

Summary

In this decision, the Court of Appeal upheld authority from the Upper Tribunal that a worker registration certificate issued to an A8 national was not retrospective in effect; rather, it was prospective in effect.

The case arose from the claim for jobseeker's allowance (JSA) of a Polish claimant for whom it was critical that a worker registration certificate issued on 1 May 2009 validated the prior period of his employment since 21 January 2009. (It was critical, as at the relevant time an A8 national had to have completed a year's registered work for an 'authorised employer' before being able to get JSA, and in the claimant's case he needed to have the time before 1 May 2009 included in order to meet that requirement. The requirement was repealed from 30 April 2011).

The Court held that, 'A registration certificate when received has no retrospective effect as to the status of the employer as an 'authorised employer'. Its effect is exclusively prospective' (paragraph 41). Provisions regarding prosecution of an employer who employed an 48 national without sight of an application for a certificate in the first month were compelling pointers against retrospectivity, and the Court did not consider such a result disproportionate (paragraphs 38-50). In effect, the Court upheld the decisions of the Upper Tribunal on this matter, in particular that of Judge Ward in SSWP v ZA [2009] UKUT 294 (AAC) (Bulletin 216, p16 - wrongly attributed there to Judge Lane).

Summary

In this decision, the Court of Appeal quashed the regulations which provided for various employment programmes and related sanctions. The Court quashed the regulations because they did not describe the programmes in the necessary detail; it maintained a previous ruling that the rules were not in breach of the European Convention on Human Rights as creating 'forced or compulsory labour'.

The appeal arose from the decision of the High Court in this case (Bulletin 230, p10) in which the work programmes and sanctions were held not to be unlawful. Allowing the claimants' further appeal, the Court of Appeal held that the relevant regulations, the Jobseeker's Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011, Si No.917, were unlawful and to be quashed. That was because they failed to comply with the primary requirement at section 17A of the Jobseekers Act 1995 that said that regulations were to provide for programmes of a prescribed 'description'. The regulations did not describe the programmes; they merely named them. Giving the lead judgment, Lord Justice Pill said, 'Simply to give a scheme a name cannot, in context, be treated as a prescribed description of a scheme in which claimants may be required to participate, within section 17A(1)' (paragraph 51). That failure rendered the regulations unlawful and so had to be quashed (paragraph 57).

The regulations were not unlawful on other grounds. In particular, had arrangements for the programme been properly made under the Act, Article 4 of the European Convention on Human Rights (precluding forced or compulsory labour) would not be engaged (paragraphs 65-67).

Note: the government acted swiftly to remake the regulations in new form and with a different title, from 6.45pm on 12 February. See Sl 2012 No.276.

Summary

This decision of a Northern Ireland Chief Commissioner holds that, in the context of child benefit, the right-to-reside test is directly discriminatory in terms of nationality, and is therefore unlawful under European Union legislation. It also suggests that 'economic or social integration' is a distinct route to a right to reside - ie, as an alternative to those specified in the rules.

The claimant was Latvian - ie, an 'AB' national. Following a short stay in 2004, she came with her husband to Northern Ireland in 2005 and shortly after commenced employment, in which (apart from a 17-day period) she remained. However, she was at no point working for an 'authorised worker' and so (under the rules then in operation, since discontinued) she could not be treated as a 'worker' for the purpose of right to reside. She claimed child benefit in 2006 and was refused on the basis that she did not have the right to reside. Her appeal to the appeal tribunal was rejected. Allowing the claimant's further appeal, Chief Commissioner Mullan held that, provided she satisfied the usual rules other than right to reside, the claimant was entitled to child benefit. As it applied to child benefit, the right-to-reside test (contained at regulation 27(3) of the Child Benefit (General) Regulations 2006, SI No.223, was directly discriminatory on grounds of nationality, and was therefore in breach of Article 3(1) of EC Regulation 1408/71 (since replaced by EC Regulation 883/04) (paragraph 59). The appeal tribunal had erred in failing to consider and apply that (paragraph 73).

The Chief Commissioner's reasoning was based on his analysis of the decision of the Supreme Court in Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11 (16 March 2011) (Bulletin 221, p10). In that decision, the Supreme Court had rejected on the context of a claim for pension credit) an argument that the right-to-reside test constituted unlawful discrimination on grounds of nationality. The rationale was partly that in pension credit (and indeed in other means-tested benefits) the test was a 'composite' test, in that it was merely part of a wider 'habitual residence' test that was not in itself directly discriminatory. Although UK nationals would always have the right to reside, not all of them would pass the habitual residence test. But in the present decision, the Chief Commissioner distinguished that in the context of child benefit. Here, there was no wider 'habitual residence' test. Instead, the only wider test was the requirement to be 'ordinarily resident' in the UK That was a test of 'fact and degree rather than law', may be satisfied immediately on arrival in the UK and was the same for UK nationals and European nationals (paragraphs 44-54). Given the 'neutrality' of the ordinary residence requirement, it seemed to the Chief Commissioner that the right-to-reside test was the 'effective and sole residence test' for child benefit (paragraph 56). In the present case, it was the right-to-reside test that was the sole rule that prevented the claimant from being entitled to child benefit; as that test was automatically satisfied by UK nationals, it followed that in this context the right-to-reside test was directly (and so, unlawfully) discriminatory on the grounds of nationality (paragraph 59).

The Chief Commissioner went further. If he was wrong that the right-to-reside test for child benefit constituted direct discrimination, it fell to be considered whether it constituted unlawful (ie, unjustified) indirect discrimination. In Patmalniece, the Supreme Court held that it did not. The indirect discrimination was justified as a measure preventing exploitation of the UK benefits system. But, at least in the judgment of Lord Hope, the leading judgment in that case, that was founded on the principle that a person would be entitled to benefit were s/he to have 'economic integration' or a 'sufficient degree of social integration' (paragraphs 41-52 of the decision in Patmalniece). Emphasising that, in the present decision the Chief Commissioner considered that the 'tenor' of caselaw authority was that an 'exception must exist' to the standard right-to-reside categories, that this exception is for those who have achieved economic or social integration and that the apparent concession of the Secretary of State that economic or social integration was sufficient (as outlined at paragraph 42 of Lord Hope's judgment in Patmalniece) was 'in-many ways, remarkable ... ' (paragraph 68). For the Chief Commissioner, to avoid unlawful indirect discrimination, economic or social integration had to be an 'alternative' route to a right to reside. Although he could not be definitive on what might amount to such integration in the UK, on the facts of this case, which included continuous residence in Northern Ireland for 23 months immediately before the claim and almost continuous employment, the Chief Commissioner considered that the claimant niust have achieved social integration there (paragraph 72).

Comment from CPAG

Thanks to Patricia Carty of the Law Centre Northern Ireland, the claimant's representative, for sending us this decision. Being one of the Northern Ireland Commissioners, it is of persuasive but not formally binding authority in Great Britain. At time of writing, it was understood that the Secretary of State was seeking permission to appeal to the Northern Ireland Court of Appeal.

It remains to be seen whether, and to what extent, it will be followed by (for example) the Upper Tribunal. The finding regarding direct discrimination will in any case not apply to means-tested benefits (which include 'composite' tests involving a habitual residence test, and so are on all fours with Patmalniece), but arguably could be applied to child tax credit (which does not have a habitual residence test). The finding that 'economic or social integration' could constitute a distinct right to reside is potentially capable of general application, but may well need to be tested further, and it is undoubtedly a yet more difficult argument. For more details on both arguments, see the article in our Welfare Rights Bulletin 234, p11.

Note: this decision was overturned by the Court of Appeal, see our caselaw summary The Commissioners for Her Majesty's Revenue and Customs v Spiridonova [2014] NICA 63.

Summary

In this decision, the High Court rejected the claimant's challenge against decisions refusing to make interim payments of benefit and child tax credit to her, pending resolution of her appeals against decisions refusing her initial claims. The claimant was a Gambian national with a child who was a UK national. She had a complex history of claims and challenges, which included a judicial review application of 30 April 2012 in the High Court on a very similar issue, albeit regarding different decisions (Bulletin 229, p14).

For the purposes of the present decision, however, the only relevant decisions were now those of 29 November 2012, refusing to make interim payments of income support, and of 26 October 2012, refusing to make interim payments of child tax credit and child benefit. In both cases, the claimant had been refused entitlement on right to reside grounds, and now had current appeals against those decisions pending. It was not suggested that the decisions refusing to make interim payments were unlawful under domestic law; it was accepted that the only means of challenge open to the claimant was on the basis that to give effect to the right of her daughter as a European Union (EU) citizen to reside in the UK, she should be given interim payments pending resolution of the appeals (paragraphs 76-7).

Mr Justice Hickinbottom rejected the claimant's challenge. On the facts of the case, it was not the case that failure to make interim payments put her daughter's rights, as an EU citizen, to reside in the UK in jeopardy. Because of that, there was no need to for the judge to rule on whether, had there been such jeopardy, interim payments should have been made. The judge did accept that, given that the daughter was four years old, the claimant was her primary carer and there was no available substitute, the daughter's rights to reside in the UK would be in jeopardy were the claimant compelled to leave the UK (and hence EU territory- ie, because she was Gambian) (paragraph 94).

However, the challenge fell 'at the first hurdle', as the claimant in fact conceded that she will never in practice leave the UK due to economic pressure, as she was receiving payments under section 17 of the Children Act from the local authority which would 'inevitably prevent her and her daughter facing destitution and homelessness' (paragraph 97). Even without such a concession, Judge Hickinbottom said he would have found so himself, as the claimant had a council house, money in the form of section 17 payments and child support and the right to work (paragraph 96). It followed that in this case, 'EU law is simply not engaged at all', and that therefore the judge left open the question of what relief may or should be available in an appropriate case (paragraphs 103 and 113).

Summary

The claimant suffered from agoraphobia. On conversion of her income support award to a claim for ESA, she was held to fail the work capability assessment. She appealed but the First-tier Tribunal dismissed her appeal, holding that she scored only nine points under descriptor 15(b) ('is unable to get to a specified place with which the claimant is familiar, without being accompanied by another person').

Judge Turnbull allowed the claimant's further appeal and remitted the case for consideration by a new tribunal. He considered it possible that she may also have scored six points under descriptor 16(c) ('engagement in social contact with someone unfamiliar to the claimant is not possible for the majority of the time due to difficulty relating to others or significant distress experienced by the individual'). The tribunal had erred in apparently assuming that, provided the claimant had the ability to engage with others, the fact that her anxiety could only be allayed by having a friend or relative within easy reach could not bring her within that descriptor (paragraph 14). The evidence was that the claimant could not go out of the house on her own and had to get a taxi to the hospital or doctor's surgery, but could not go to crowded places because of anxiety about feeling faint. The judge accepted that difficulty 'in simply getting alone to the destination' was not covered by activity 16, if the claimant could then engage in social contact without difficulty (paragraph 11). However, the descriptors also referred to where such engagement was precluded because of significant distress experienced by the individual', and it was possible that the effect of having to leaving home unaccompanied, or to enter unfamiliar buildings, caused distress which then prevented the claimant from being able to engage in social contact. For the judge, if the claimant was 'anxious about being in places where she might get into difficulties if she was unaccompanied by a friend or relative and fainted, and that anxiety prevented her from engaging with others, that would in my judgement be capable of bringing her within 16(c), although the "majority of the time" requirement would of course need to be satisfied' (paragraphs 11-14).

The judge also considered that the tribunal should have considered whether there was a 'substantial risk' to the claimant's health were she found not to have limited capability for work, in which case, under regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008 , SI No. 794, she should be treated as having limited capability for work. For the judge, in a situation where regulation 15(b) was the only one satisfied, a tribunal will 'almost inevitably' need to consider regulation 29(2)(b), and the same was probably true where other descriptors in activities 15 and 16 applied that scored only nine or six points. That was because 'inability, for mental reasons, to get to a specified place with which the claimant is familiar without being accompanied inevitably raises the question what the effect on the claimant's mental health would be if he or she were found not to have limited capability for work' (paragraph 15).

Summary

In this Northern Ireland decision, the tribunal had dismissed the claimant's appeal against his failure of the work capability assessment, holding that he did not score points in Activity 1 (mobilising). Its findings included that the claimant could repeatedly walk in excess of 200 metres without 'severe discomfort or exhaustion'.

Allowing the claimant's further appeal, Commissioner Stockman held that the tribunal had applied the wrong test. The descriptors for mobilising refer, in their post-28 March 2011 form, to 'significant' discomfort, not to 'severe discomfort'. For the commissioner, there was a 'qualitative difference' between the two: 'it appears to me that "significant discomfort" denotes a degree of discomfort which does not necessarily reach the threshold of "severe discomfort'", and the tribunal had applied the wrong test (paragraph 12).

Comment from CPAG

Although, as a decision of the Northern Ireland Commissioner, this decision is formally of persuasive rather than binding authority in Great Britain, it has been highlighted on the Upper Tribunal website, and it is strongly arguable that its finding that 'significant' may be less than 'severe' is plainly correct.

This is the decision of the Supreme Court on appeal from the decision of the Court of Appeal in this case. The Court was asked to consider the same issues as the Court of Appeal; in essence, it upheld the Court of Appeal's decision. See the article on p7 of Bulletin 237.