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Summary

In this decision, the Court of Appeal upheld the challenge by the claimants to the decision in this case of the High Court (see R (Fratila and Tanase) v Secretary of State for Work and Pensions [2020] EWHC 998 (Admin)). In a majority decision, the Court of Appeal held that regulations excluding ‘pre-settled status’ as a valid right to reside for benefit purposes were unlawful, and quashed those regulations.

The claimants were Romanian nationals who came to the UK in 2014 and 2019 respectively. In 2019, each was granted limited leave to remain in the UK under the European Union (EU) Settlement Scheme (also known as ‘pre-settled status’). Both claimants applied for universal credit (UC) but were refused on the grounds that their pre-settled status was not a sufficient right to reside to enable them to access means-tested benefits, as a result of amendments made by the Social Security (Income-related Benefits) (Updating and Amendment) (EU Exit) Regulations 2019.

The claimants argued that the exclusion of the pre-settled status right to reside was is in breach of the EU right not to be discriminated against on the ground of nationality in comparison with UK nationals, as at Article 18 of the Treaty on the Functioning of the European Union. That argument had been rejected by the High Court, on the basis that any discrimination against them was indirect and was justified. Departing from that, the court held that the regulations were unlawful and ordered that they be quashed. Firstly (and contrary to the argument of the Secretary of State), once a claimant had a right to reside under domestic law (as here, via the EU Settlement Scheme), then discrimination in breach of Article 18 was not permissible, and the separate European rules conferring right to reside (Directive 2004/38/EC, which did not provide the claimants with a right to reside) were not a complete set of rules for benefit entitlement.

Secondly, discrimination under Article 18, once established, was unlawful and (as direct discrimination) was not capable of justification. Article 18 was breached here as the regulations introduced discrimination on the basis of nationality, in that European nationals who had been granted a right to reside under domestic law were refused benefit on right to reside grounds. In the lead decision, Lord Justice McCombe, drawing on a line of authority from the Court of Justice of the European Union (CJEU), said: ‘Accordingly, by direct application of the CJEU decisions, as interpreted in our own courts, a discrimination of the present type is prohibited by EU law and the question of justification does not arise’ (paragraph 71 ). Lord Justice Dingemans, in the minority, considered the discrimination to be indirect and therefore capable of justification, and to be justified.

The Order of the court quashes both the legislation which provides that having ‘pre-settled status’ is not a sufficient right to reside for the purposing of accessing means-tested benefits and the decisions of the Secretary of State for Work and Pensions refusing the claimants UC. However, the court granted a short stay to 26 February 2021 (during which time the Secretary of State did not have to implement the judgment.)

Comment from CPAG

The Secretary of State has appealed to the Supreme Court, and also requested a further stay. Despite Brexit, the effect of the quashing of the legislation is that, once the stay is lifted (and subject to any further appeal), anyone with pre-settled status satisfies the ‘right to reside’ test for access to means-tested benefits. See also the legal test cases pages on CPAG’s website. 

For the Supreme Court's decision, see our caselaw summary Fratila and another v Secretary of State for Work and Pensions [2021] UKSC 53.

Summary

The Supreme Court unanimously held that amendment regulations providing that pre-settled status under the European Union (EU) Settlement Scheme was excluded from conferring an effective right to reside for entitlement to universal credit (UC) were not unlawful on grounds of discrimination under European law. In so holding, it allowed the appeal of the Secretary of State against the contrary decision of the Court of Appeal in this case (Fratila and Tanase v Secretary of State for Work and Pensions and another [2020] EWCA Civ 1741, 18 December 2020).

The claimants were Romanian nationals whose only right to reside in the UK was by virtue of their pre-settled status, and had been refused UC. The Court of Appeal had accepted their argument that the exclusion of that right to reside in the context of entitlement to UC was discrimination on grounds of nationality, in breach of Article 18 of the Treaty on the Functioning of the European Union (TFEU), and quashed the amendment regulations introducing that exclusion. The Supreme Court reversed that, in the light of the decision of the Court of Justice of the European Union (CJEU) in CG v Department for Communities in Northern Ireland, Case C-709/20, reported as [2021] WLR 5919 (15 July 2021). That in effect held, in a separate case but with identical arguments, that in such a case whether the EU citizen had been subject to discrimination on grounds of nationality fell to be assessed not under Article 18 of the TFEU, but under Article 24 of the ‘Residence Directive’ (2004/38/EC). For that to apply, the claimant had first to reside in compliance with the Directive – ie, to have a right to reside in the first place.

In the Supreme Court, the parties agreed that (by virtue of Articles 86(2) and 89(1) of the Withdrawal Agreement, which has domestic effect by virtue of section 7A of the European Union (Withdrawal) Act 2018), the judgment of the CJEU in CG ‘will have binding force in its entirety on and in the United Kingdom’ (paragraph 8). Further, it was a common ground that the claimants did not reside in the UK in accordance with the Directive at the time of their claims for UC – ie, they did not have a right to reside under the Directive. ‘They cannot therefore,’ said Lord Lloyd-Jones in the judgment for the court, ‘rely on the EU principle of non-discrimination to claim a right to equal treatment in respect of entitlement to universal credit’ (paragraph 12).

The court refused to consider a new argument for the claimants, submitted in the light of the decision of the CJEU in CG, that before refusing entitlement the Secretary of State was obliged to consider whether the claimants’ rights under the Charter of Fundamental Rights of the European Union (including the right to live in ‘dignified conditions’) would be breached. Lord Lloyd-Jones said: ‘While an appellate court will always be cautious before permitting a new point to be raised for the first time on appeal, it would clearly be inappropriate to do so where, as in the present proceedings, the new case would raise issues of fact which have not been determined… I would add that while the CJEU in CG drew attention to the possible relevance of the Charter to the particular circumstances of that case, it is immediately apparent from paragraph 92 of the judgment of the CJEU that CG’s situation was materially different from that of the respondents to the present appeal’ (paragraph 14)

Comment from CPAG

The court held, conclusively as domestic authority, that the claimants had not been discriminated against under the TFEU or the Directive. However, arguments based on the reference in CG to rights under the Charter of Fundamental Rights of the European Union and on discrimination under the Human Rights Act remain possible, although as yet untested. See the article in Bulletin 286, p8.

Summary

ln R (Rutherford and another) v Secretary of State for Work and Pensions [2016] EWCA Civ 29, the Court of Appeal had previously held that it was a breach of the claimant's human rights (via unlawful discrimination on grounds of disability) not to provide for a bedroom required for an overnight carer of a disabled child. Although regulation 813 provided for an extra bedroom for an overnight carer of a disabled adult, it did not extend to a child requiring overnight care. The Supreme Court held, in R (Rutherford and another) v Secretary of State for Work and Pensions, that there was no reasonable justification for the difference in treatment, there being no 'sensible reason' for distinguishing between adults and children in need of overnight care (paragraph 46). Setting out the lead decision, Lord Toulson added that there was 'an ironic and inexplicable inconsistency' in the approach of the Secretary of State, in that he referred to the best interests of the child in one context, but then provided in the present context that disabled children were treated less favourably. The Secretary of State's appeal against the decision of the Court of Appeal was therefore dismissed (paragraphs 47-49).

In R (Carmichael and Rourke) v Secretary of State for Work and Pensions (previously part of the Court of Appeal's decision in R (MA and others) [2014] EWCA Civ 13; [2014] PTSR 584 -Bulletin 239, p10), the claimants were adult partners who could not share a bedroom because of disability. The problem here was that although regulation 813 provided that disabled children were not expected to share a bedroom, that did not extend to adults clearly unable to share because of disability. The Court of Appeal had previously dismissed the claimant's application. The Supreme Court allowed the claimants' further appeal (thus finding that the appellants were unlawfully discriminated against), applying similar reasoning to that in the Rutherford decision (paragraph 46).

The other claimants in the case formerly known as MA and others were dealt with by the Court in R (Daly and others) v Secretary of State for Work and Pensions. The circumstances of the claimants were various, but all involved disability. However, the Supreme Court distinguished these cases from those in the Rutherford and Carmichael cases in that in the latter cases, unlike in these cases; there was a 'transparent medical need' for an extra bedroom (paragraph 42). In Daly and others, the Supreme Court dismissed all the claimants' further appeals. The Secretary of State's approach was not to provide a general exemption for disability, but to rely on the discretionary housing payment (DHP) scheme to allow coverage of full rent in individual cases. The correct legal test was whether that approach was 'manifestly without reasonable foundation' (paragraphs 28-38). It was reasonable for there to be no 'blanket' exemption for disability (paragraph 41), and in the individual cases, in which the Court did not see an 'objective' need for an extra bedroom, it was 'not unreasonable' for full coverage to be considered under the DHP scheme (paragraphs 50-55).

The Court took a similar approach in R (A) v Secretary of State for Work and Pensions, this time regarding a woman living in a 'sanctuary scheme' home. The Court of Appeal had held that the bedroom tax rules unlawfully discriminated against the claimant on grounds of sex. Allowing the Secretary of State's appeal, Lord Toulson accepted the argument that the individual facts in such cases would vary, with consequently varying results regarding whether claimants 'really needed to stay in that particular property', even though sanctuary scheme accommodation was required (paragraphs 59-64). Ultimately, the reliance placed by the Secretary of State on individual evaluation for payment of DHPs was not 'manifestly without reasonable foundation' (paragraph 66). Consequently the application of the bedroom tax involved no unlawful discrimination. However both Lady Hale and Lord Carnwath dissented from the judgment in this particular case.

Comment from CPAG

The finding of unlawful discrimination against disabled children needing overnight care and adult partners unable to share because of disability is very welcome, although the failure to regard women needing sanctuary accommodation as needing to remain in their accommodation is disappointing in equal measure (it is understood that the claimant in A is applying for leave to appeal to the European Court of Human Rights). Claimants who could benefit from the decision should apply immediately to their local authority for the decision to be applied to them. However, at time of writing in Housing Benefit Urgent Bulletin HB U3/2016, local authorities had been advised by the DWP that as the regulations were not actually struck down, the rules should continue to be applied until the DWP gets round to changing them. In CPAG's view this is wrong, as the decision clearly finds the regulations in breach of human rights requirements.

Summary

In this decision the Court of Appeal rejected a challenge to the decision of the High Court in R (MA and others) v Secretary of State for Work and Pensions [2013] EWHC 2213 (QB). The result is that the lawfulness of the 'bedroom tax' as applied to disabled people has again by upheld by the courts.

The claimants were a number of disabled adults with varying circumstances, but who had been subject to the bedroom tax. The issues considered by the Court were: (1) whether the bedroom tax constituted unlawful discrimination against disabled people, as in breach of Article 14 of the European Convention on Human Rights ('the Convention) read with Article 1 of Protocol 1 (protection of property; and (2) whether the bedroom tax was made in breach of the Secretary of State's public sector equality duty under section 149 of the Equality Act 2010 to have 'due regard' to the need to eliminate discrimination and advance equality of opportunity for disabled people. The Court unanimously held that the bedroom tax breached neither Article 14 or the public sector equality duty.

Regarding Article 14, the Court held that the alleged discrimination was indirect discrimination (or so-called Thlimennos discrimination, the distinction between the two was unnecessary here) (paragraph 4 7) and so was capable of justification. The relevant test for deciding if it was not justified was if the measure is 'manifestly without reasonable foundation' (paragraph 49). Giving the lead decision, the Master of the Rolls said that, looked at in isolation, the relevant rule (regulation B 13 of the Housing Benefit Regulations 2006) plainly discriminates against disabled people who have a need for an additional bedroom by reason of their disability (paragraph 39). But it was not realistic to look at regulation 813 in isolation; it had to be considered as part of a 'package for dealing with the problem of under-occupation', that included certain exemptions from the bedroom tax and reliance on discretionary housing payments (DHPs) for others (paragraph 40). Looked at in this way, and taking into account the Secretary of State's stated reasons for the bedroom tax, the discrimination was justified (and so not unlawful) (paragraph 71). The Court accepted that the category all disabled people who needed an extra bedroom by reason of their disability 'may be relatively large, not always easy to recognise, may be open to abuse and (in some cases at least) will require monitoring'. Also the DHP fund has been increased and the relevant guidance altered (paragraph 72). The Secretary of State was entitled to the view that it was not practical to add such a category of claimant to the exemptions from the bedroom tax, and the Court did not accept that exempting disabled children who needed an extra room but not disabled adults who needed an extra room was irrational or without objective or reasonable justification - the best interests of children were a primary consideration (paragraphs 73-79).

On the public sector equality duty, it was established that the principal question was not whether the decision was justifiable, but whether in the process leading to the making of the decision, the decision maker had 'due regard' to the relevant considerations (paragraph 83). The Court considered that the history of the evolution of the bedroom tax policy showed that the Secretary of State had 'well understood that there are some disabled persons who, by reason of their disabilities, have a need for more space than is deemed to be required by their non-disabled peers', and that the scheme had been considered 'in great detail' by the Secretary of State and by Parliament. Also, the adequacy of the DHP scheme had been considered and kept under review. The process did not breach the Secretary of State's public sector equality duty (paragraph 92).

Comment from CPAG

The Court's reasoning makes clear its view that the position of disabled adults who require an extra bedroom is not to be equated with that of disabled children who need an extra bedroom (provision regarding which is now made in regulation 813). At time of writing, a further appeal to the Supreme Court, was under consideration.

Note: 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

In this decision, the Court of Appeal ruled that the ‘bedroom tax’ unlawfully discriminates against female victims of domestic violence living in specially adapted accommodation, and against disabled children who require an overnight carer. However, the Secretary of State has appealed to the Supreme Court and another decision is now awaited.

The arguments concerned the lawfulness of the ‘bedroom tax’ rule (referred to by the government as the ‘removal of the spare room subsidy’) at regulation B13 of the Housing Benefit Regulations 2006, SI No.213. In particular, the Court considered whether there was unlawful discrimination in breach of Article 14 of the European Convention on Human Rights (ECHR), even in cases where discretionary housing payments (DHPs) were available to the claimants. The Court had to decide whether to apply the decision in Burnip v Birmingham City Council [2012] EWCA Civ 629, [2013] PTSR 117, which had found unlawful discrimination (despite the availability of DHPs) against a ‘very limited’ category of disabled claimants, or the decision of the Court in R (MA and others) v Secretary of State for Work and Pensions [2014] EWCA Civ 13, [2014] PTSR 584, which had held that the availability of DHPs justified the discrimination against a ‘broader category’ of disabled persons (decisions described at paragraphs 32–38).

The Lord Chief Justice, Lord Tomlinson and Lord Justice Vos unanimously held that the discrimination against the claimants could not be justified. In the domestic violence case, ‘A’ was a woman who was a victim of domestic violence, living with her 11-year-old son. They required a third bedroom adapted as a ‘panic space’ under Sanctuary Scheme arrangements, but under the ‘bedroom tax’ their housing benefit was restricted to that of a two-bedroom property. The Court held that claimants like A were ‘few in number and capable of easy recognition’ and that regulation B13 could be amended to ‘identify them as a discernible and certain class’. Therefore, the Court considered itself bound by Burnip, and not by MA. There was no objective and reasonable justification for the discrimination against female victims of domestic violence, and Article 14 was breached (paragraphs 47–56).

In the Rutherford case, grandparents caring for their severely disabled grandson required a third bedroom to accommodate an overnight carer for their grandson. However, the bedroom tax rules allow an extra bedroom for an overnight carer only of a disabled adult, not a disabled child. The Court held that the Secretary of State should have had specific regard to the best interests of children, such as the disabled grandson in this case, when devising the regulations (paragraph 72). The attempted justification of the discrimination against disabled children (compared to disabled adults) by the Secretary of State ‘did not address how the distinction could be justified by reference to the best interests of the child as a primary consideration’. The Court accepted that DHPs were intended to provide the money lost in housing benefit, but were not persuaded that that this ‘justifies the different treatment of children and adults in respect of the same essential need within the same Regulation…’ (paragraph 73). Therefore, the claimants in this case succeeded for the same reasons as in the case of A (paragraph 74).

Note from CPAG

The Court granted the Secretary of State permission to appeal to the Supreme Court. The Supreme Court heard the appeals, together with the appeal against the decision in MA, on 29 February – 2 March. 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

The claimant had epilepsy and suffered from seizures. Her application for personal independence payment (PIP) was refused on 5 July 2019, a decision that was upheld on mandatory reconsideration in October 2019; she appealed to the First-tier Tribunal on 24 August 2021. Pending the tribunal hearing, in November 2020 she suffered a further seizure, which resulted in the withdrawal of her driving licence. She had another seizure in January 2021. The tribunal was aware of the 2020 and 2021 seizures but said that they ‘did not affect the assessment of risk at the time of the decision’. In essence, they were considered simply to be changes of circumstance which post-dated the decision under appeal and so could not be considered. 

Judge Fitzpatrick allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred in incorrectly applying the rule in section 12(8)(b) of the Social Security Act 1998, which provides that a tribunal ‘shall not take into account any circumstances not obtaining at the time when the decision appealed against was made’. Although that had to be applied in any case, in the present case the tribunal had neglected to consider whether the 2020 and 2021 seizures nevertheless provided evidence about the claimant’s circumstances at the time of the decision under appeal. The ‘blanket rejection’ of that evidence by the tribunal (ie, without further consideration and explanation) was an error of law (paragraph 23). 

In so holding, the judge applied existing authority on this point. In R(DLA) 2/01 Commissioner (as he then was) Jacobs had said at paragraph 9: 

‘...it is the time to which the evidence relates that is significant, not the date when the evidence was written or given...If it relates to the relevant period, it is admissible. If it relates to a later time, it is not admissible.’ 

That was followed by Judge Ward in JS v SSWP [2011] UKUT 243, concluding that evidence coming into existence after the date of the decision could be relied on so far as relevant to show the circumstances pertaining at the date of the decision.

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).