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Decision in brief

Because the compression stockings were ‘therapy’, difficulties with them could not also lead to points under Activity 6 (dressing and undressing) as that is about the ‘more general’ activity of dressing and undressing, but the tribunal also erred in failing to consider whether the claimant qualified for points there as a result of difficulties dressing or undressing with ‘normal’ clothes

Decision in brief

Application of Court of Appeal decision in Harrington v Secretary of State for Work and Pensions [2023] 1 WLR 3477 – under Article 11(2)(e) of Regulation (EC) No.883/2004, on the facts the claimant’s competent state was her state of residence (ie, the UK) – that was not displaced by Article 29 (‘cash benefits for pensioners’) as that merely ensured that the claimant, as the family member of a pensioner, may be entitled to cash sickness benefits by the state responsible for the pension – but it did not have the effect of removing entitlement to cash benefits from the family member’s state of residence (ie, the UK, in this case) where they were otherwise entitled – claimant’s competent state was therefore the UK and she was entitled to carer’s allowance

Decision in brief

Tribunal had been sufficiently persuaded of adverse effects of claimant’s mental health problems to award 10 points in mobility descriptor, and that indicated that a mental health issued could have had more of an effect on daily living than the tribunal found – tribunal needed to explain more about that

Decision in brief

In rejecting appeal, First-tier Tribunal made insufficient finding of fact and gave inadequate reasons – tribunal wrongly excluded cleaning and sterilising therapy equipment from consideration of managing therapy – Secretary of State conceded that any essential clearing and maintenance of the therapy device should be treated as part of the therapy regime – although, on the facts, the time taken would still not have led to an increased award of points for that

Decision in brief

Need to consider whether ability to walk is to an acceptable standard (as explained in PS v SSWP [2016] UKUT 326 (AAC)) – ‘walking despite pain is not to an acceptable standard’

Decision in brief

Permission refused as essence of the application was a dispute over the facts and credibility findings of the First-tier Tribunal for Scotland (FTS) – need to show an arguable error of law – law restricts appeals to the UTS to points of law only (s46(2)(b) of the Tribunals (Scotland) Act 2014) – FTS is in a better position than the UTS to make judgements about factual matters and credibility – to be proper and adequate, the reasons of the FTS for its decision do not have to involve every aspect of the evidence before it – ‘The decision of the FTS has to be read as a whole, in a straightforward manner, and recognising it is addressed to parties well aware of the issues involved (AK v Social Security Scotland [2024] UT 5, para 8).’

Decision in brief

Where a claimant says that they have difficulty in doing activity due to pain, it is important to take account of that in particular regarding ability to do the activity repeatedly and within a reasonable time, and make relevant findings of fact

Decision in brief

Claimant was in receipt of personal independence payment, but due to Covid- related delays was still awaiting a work capability assessment by the time he started his course of study – consequently was no determination awarding limited capability for work (LCW) by that time under so could not be entitled (under regulation 14(1)(b) of the Universal Credit Regulations 2013) to UC as a disabled student – tribunal did not err in refusing the claimant’s appeal – ‘no way round’ the problem that the claimant did not have a LCW determination before he started his studies

Summary

The claimant was held to have been overpaid income support between dates in 2009 and 2013, due to excess capital in the form of money in bank accounts. Information about this had been obtained from the bank by the Department for Social Development (‘the Department’). However, this was in breach of authority from the claimant to obtain such evidence, which he had limited to a period from July 2013 onwards. The appeal tribunal dismissed the claimant’s appeal, holding that the evidence could be taken into account even though it had been unlawfully obtained.

Commissioner Stockman upheld the claimant’s further appeal and substituted a decision that the claimant’s human rights had been breached, that the unlawfully obtained evidence should not be admitted and, in the absence of any other evidence about the claimant’s capital in the relevant period, that the claimant had not been overpaid. The evidence was unlawfully obtained, as it was regarding a period excluded by the terms of the authority given by the claimant, and the Department was not exercising fraud investigation powers – ie, under which such evidence can lawfully be obtained without consent. The claimant’s right to private and family life under Article 8 of the European Convention on Human Rights ‘(the Convention’) had been breached.

The tribunal had referred to the decision in C53/08(DLA) as authority for its finding that improperly obtained evidence can be taken into account. But that decision was made before the coming into force of the Human Rights Act 1998, which incorporated the Convention into UK law, and so created a different context. The tribunal had erred in failing to address whether the unlawfully obtained evidence would affect the fairness of the proceedings – ie, and so potentially to breach the claimant’s right to a fair trial under Article 6 of the Convention. Substituting a decision, the Commissioner held that the loss to the public purse at stake in this case was ‘relatively minor’, that there was no ‘deliberate fraudulent intent’ by the claimant, and that the public was ‘entitled to be protected from irregular access…to their private information’ (paragraph 83). Therefore, the unlawfully obtained evidence should not be admitted and, in the absence of other evidence, the result was that the claimant had not been overpaid.

Comment from CPAG

This decision of the Northern Ireland Commissioners is formally of persuasive rather than binding authority in Great Britain. However its reasoning, founded as it is in human rights considerations, will at least be capable of direct application, although the facts of the case were clearly important in forming the Commissioner’s conclusions.

Summary

In this judicial review decision, the High Court rejected an argument that the treatment for UC purposes of maternity allowance as unearned income rather than earned income is unlawful.

The claimant was not entitled to statutory maternity pay (which is treated as earned income for UC), but was entitled to maternity allowance (which is not). In the calculation of her UC, the maternity allowance was therefore deducted pound for pound from her maximum entitlement, unlike statutory maternity pay, which as earned income only 63 per cent of which would have been deducted. The claimant argued that the relevant rule treating maternity allowance as unearned rather than earned income, at regulation 66 of the Universal Credit Regulations 2013, was unlawful, on the basis that it was discrimination contrary to Article 14 of the European Convention on Human Rights or, alternatively, was irrational. (The claimant also argued that the decision in making the 2013 Regulations to treat maternity allowance in this way was in breach of the public sector equality duty in the Equality Act, but permission to apply on this ground was refused by the judge as having been made out of time.)

Mr Justice Swift rejected those arguments. Although he had doubts about whether needing to claim maternity allowance rather than statutory maternity pay constituted an ‘other status’ for the purpose of an Article 14 challenge, he was content to focus on whether there was sufficient justification for the different treatment. He considered that there was. His reasons for that concerned the fact that statutory maternity pay was paid by employers through the payroll, that that was a real-time information (RTI) system used to report such payments, and the UC system was designed around allocating RTI payments as earned income. For the same reasons, the difference in treatment was not irrational. The claimant’s reliance on the United Nations Convention on the Rights of the Child did not alter that. Even to the extent that it was a legitimate tool for considering justification for different treatment or rationality arguments, the Convention did not impact on them as it remained that a total social security payment equivalent to maximum UC remained payable.

Summary

The claimant was entitled to income-related employment and support allowance (ESA), including a severe disability premium (SDP) as a result of his entitlement to the middle rate of the care component of disability living allowance (DLA). In 2012, his entitlement to the middle rate of the care component was ended by the Department for Social Development; however, the claimant did not inform the ESA office of this and his ESA continued to include the SDP. In 2014, the Department removed the SDP and in 2015 decided the claimant was liable to repay the overpayment of ESA (ie, caused by the continued inclusion of the SDP) for the 2012 to 2014 period. The claimant’s appeal to the First-tier Tribunal was refused.

Commissioner Stockman allowed the claimant’s further appeal and substituted a decision that he was not liable to repay the overpayment. This was because the overpayment had not been caused by the claimant failing to disclose the ending of his entitlement to the middle rate of the care component of DLA. The ESA office of the Department was considered to have known about the change, and the claimant knew that it knew. The claimant was therefore not under a duty to report the change and could not have failed to fulfil that duty.

The First-tier Tribunal had rejected the claimant’s arguments that the ESA office already knew of the change, citing the decision of the House of Lords in Hinchy v Secretary of State for Work and Pensions [2005] UKHL 16, that a claimant was not entitled to rely on the Department’s systems or practices as satisfying the primary obligation to notify the Department of changes in circumstances. However, Commissioner Stockman considered that times had changed since the decision in Hinchy, and in particular that ‘…one cannot envisage a rational modern computerised system of administration of benefits, where the rate of one benefit (ESA) is conditional on entitlement to another (DLA), which does not verify the details of that other award’ (paragraph 45). Also, ‘Hinchy addressed a disjointed departmental administration in the period from 1993 to 1998 passing information about DLA awards around on pieces of card, where one branch did not know what the other was doing. The evidence in this case indicates that that system has been consigned to the past. Claimants are entitled to assume that when they receive their decision in relation to one benefit, the Department’s modern computerised systems will not just have communicated the decision to them, but also to any other branches of the departmental administration where that decision has an impact’ (paragraph 48); and ‘it is plainly time that the factual circumstances underpinning the House of Lords decision in Hinchy are distinguished in order to reflect the reasonably expected standards of 21st century benefits administration’ (paragraph 50). The claimant was therefore entitled to assume that the ESA office knew of the change.

Comment from CPAG

As a Northern Ireland decision, this decision is not formally binding in Great Britain, but may be considered persuasive. As such, it could be applied regarding the recoverability of any overpayment in Great Britain that is founded upon an alleged failure to disclose (this will not include overpayments under the universal credit system). The robust engagement with the practical consequences of the passage of time since Hinchy, and what it is reasonable to expect of claimants, are to be welcomed. However, it remains to be seen exactly how persuasive authorities in Great Britain will regard its decisive move away from the conclusions in Hinchy.

Summary

In this decision, the Court of Appeal in substance upheld the previous decision of the High Court in this case (Bulletin 273, p8). There, a challenge to the lawfulness of the equalisation between men and women of the state pension age and the raising of the pension age, based on alleged discrimination on grounds of age or sex (or age and sex combined), and of allegedly inadequate notice of the changes, was rejected. The claimants were both women who, under the changes, reach pension age at the age of 66.

In the Court of Appeal, the Master of the Rolls, Lord Justice Underhill, and Lady Justice Rose DBE unanimously rejected the claimants’ further appeal. Regarding alleged age discrimination contrary to Article 14 of the European Convention on Human Rights, although the court took a different view to the High Court in that it considered that older women might be a valid comparator group regarding the alleged discrimination, it agreed that any discrimination was nevertheless justified. It was right to regard the matter as one of macro-economic policy, and the court agreed with the High Court that ‘it is impossible to say that the government's decision to strike the balance where it did between the need to put state pension provision on a sustainable footing and the recognition of the hardship that could result for those affected by the changes’ was manifestly without reasonable foundation (paragraph 55). Regarding indirect sex discrimination or sex/age discrimination, firstly the court agreed with the High Court that the domestic law was not within the scope of European Union law. It also agreed that even if indirect discrimination under Article 14 had occurred, it was not unlawful under Article 14, as it was in any case justified as not manifestly without reasonable foundation. The evidence showed that proper consideration had been given to these measures, which ‘dealt with controversial matters of huge political weight and clearly fall within the macro-political field’ (paragraph 93).

Regarding notification, the High Court was ‘entitled to conclude as a fact that there has been adequate and reasonable notification given by the publicity campaigns implemented by the Department over a number of years’ (paragraph 120).