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Summary

The claimant was a male to female transsexual. While still a man, she married a woman with whom she still lived. She underwent gender reassignment surgery. She did not apply for a ‘full gender recognition certificate’ under the provisions of the Gender Recognition Act 2004, as that required her first to annul her marriage, something she refused to do. Accordingly under the law she was still regarded as a man, and was therefore refused entitlement to state retirement pension when she subsequently applied for it at the age of 60, the age at which a woman was entitled. That decision was upheld in the First-tier and Upper Tribunals.

The Court of Appeal unanimously rejected the claimant’s further appeal, which was based on an argument that the refusal to grant her a retirement pension at age 60 was in contravention of EU law in the form of Council Directive 79/7/EEC on equal treatment for men and women in social security. The effect of the Gender Recognition Act 2004 had been to make relevant provision regarding the rights of transsexuals, and, as at the time of her retirement pension claim the claimant had not brought herself within it (ie, by declining to annul her marriage), she was lawfully not regarded as a woman. The Court noted that when the relevant provisions of the Marriage (Same Sex Couples) Act 2013 come into force the claimant will be able to obtain a full gender recognition certificate without having to annul her marriage; but those provisions are not retrospective and therefore will not give her any right to a pension from age 60 (paragraph 2).

In so holding, the Court considered previous decisions about transsexuals and retirement pension from age 60, namely that of the European Court of Justice in Richards v Secretary of State for Work and Pensions (C-423/04) [2006] ICR 1181, and that of the Court of Appeal in Timbrell v Secretary of State for Work and Pensions [2010] EWCA Civ 701 [2010] ICR 1369. Both were about claims before the coming into effect of the Gender Recognition Act, and so both succeeded on the basis that there was at the relevant time no basis by which their acquired gender could be recognised in law. The Act had made ‘fundamental difference’ to this by providing that was no longer the case (paragraphs 7–12); and the requirement in the Act that any subsisting marriage be annulled prior to the issue of a full gender reassignment certificate was justifiable, with reference to the wide margin of appreciated to be afforded to the relevant State and the proportionality of the requirement (paragraphs 13–16).

Decision in brief

Regulation 9(1)(d) of the Housing Benefit Regulations 2006 (SI No.213) provides such a person is treated as not liable for rent – it does not matter that the ex-partner is a joint landlord of the claimant rather than a sole landlord – ‘mischief’ preventing approach in Bristol CC v JKT [2016] UKUT 517 and general trend of applying the ‘anti-avoidance’ purpose of regulation 9(1) approved – intent of the rule is to prevent the mischief of the public purse funding family arrangements when a landlord parent who would benefit has responsibilities to accommodate the child in any event

Decision in brief

The mark referred to has to be ‘meaningful’ so as to be capable of conveying some meaning – random doodling or scribbling is not sufficient, but the mark could be a name or signature, or be in the form of a symbol, such as a tick that could indicate agreement – it is not a test of intellectual capacity and the claimant’s literacy is not in issue – SM v SSWP [2015] UKUT 617 (AAC) cited and approved

Decision in brief

2015 claim made in Spain should have been referred to the DWP in UK under European law (in particular under Article 45 of EC Regulation 987/2009 and Article 50 of EC Regulation 883/2004) – subsequent referral to DWP following further claim in 2016 does not change that date of claim for ESA should be taken as date of the original (2015) claim for invalidity benefit in Spain

Decision in brief

No error in tribunal proceeding without adjournment – claimant represented by ‘responsible representatives’ who included tribunal decision awarding PIP in their submission but did not request adjournment to get the PIP evidence – tribunal entitled to assume that the representative knew the case which was to be presented and had lodged the documents necessary to support it

Summary

The claimant did some temporary work in November 2015, but did not receive payment for that work until 15 December. In the meantime, the work had ceased and he had claimed UC, with the first assessment period being 1 to 31 December. The payment of wages on 15 December was overlooked, but later corrected on revision, resulting in an overpayment of UC which the claimant was liable to repay. The claimant’s appeal again the revised decision and the decision that he must repay the overpayment was dismissed by the First-tier Tribunal.

Judge Jacobs held that the tribunal had not erred in law, and so rejected the claimant’s further appeal. Regarding receipt of the earnings, what mattered as far as the UC legislation is concerned ‘is when a payment is made’. If made within an assessment period, it is treated as income for that period, and so the decision maker ‘correctly fixed the claimant’s assessment period’ so as to treat the earnings as income in respect of that period (paragraph 8).

Liability to repay the overpayment was governed by section 71ZB of the Social Security Administration Act 1992. There, liability did not (unlike for most social security benefits) depend on claimant misrepresentation or failure to disclose. Neither was there reference to official error or what was reasonable to expect the claimant to have realised (paragraph 10). A claimant can appeal about the amount of an overpayment of UC but nothing else. The cause of the overpayment was irrelevant on an appeal under section 71ZB (paragraphs 11–12).

Summary

The claimant was refused housing benefit, being considered to have notional capital of £102,830 for the sale of her former home. The claimant appealed and argued to a First-tier Tribunal that she had paid it to her children. The tribunal rejected the argument that most of the money was paid to clear a debt to her daughter and refused her appeal. A subsequent claim was rejected on similar grounds (with application of the diminishing notional capital rules) and the claimant’s appeal against that was rejected, on the grounds that the facts found by the earlier tribunal were res judicata – ie, could not be disturbed on a new claim. Later, another new claim was met with the same response both by the local authority and a further First-tier Tribunal. On this occasion, the claimant changed her account, saying that in fact she had spent the money on gambling and providing medical evidence of treatment for compulsive gambling.

Judge Jacobs held that the most recent First- tier Tribunal had erred in law, because it took the same approach as the preceding tribunal in applying the principle of estoppel per rem judicatum (sometimes called res judicata) to this case. That was wrong because, as had been made clear in CH/704/2005, that principle ‘has little application to the determination of social security claims generally and none to the determination of housing benefit claims’ (paragraph 7). Although decisions of tribunals are final (subject to supersession, appeal, etc.), the determinations embodied within them are not conclusive. So the determinations about the claimant’s actions made by first tribunal were not conclusive for the purposes of a subsequent claim. A decision on a claim can be changed on revision or supersession, and ‘there is no reason why errors should not equally easily be corrected in new claims’ (paragraph 7).

That was not to say that the earlier decisions were irrelevant to the new claim. It might be difficult for a claimant to persuade a local authority or tribunal to take a different view from that previously taken, ‘particularly where the claimant has admitted lying and, as it would seem in this case, committing criminal offences by making false statements for the purpose of obtaining benefits’ (paragraph 8). However, the possibility that a claimant was an untruthful person telling the truth on this issue must be recognised. The tribunal ought to have considered whether the claimant was now telling the truth and, if so, what the legal implications were (paragraph 8). The case was remitted to a fresh tribunal consider afresh what the facts were.

Comment from CPAG

This decision does not alter the basic position that decisions are final, subject to revision, supersession or appeal. The judge was concerned here with the contention that the estoppel/res judicata principle applies to the determination of claims – ie, to the determination of claims for a different, subsequent period to that in a previous decision.

Summary

The claimant was entitled to child tax credit. She made a claim for universal credit (UC) – mistakenly, she later said, as she believed that in fact she was making a claim for personal independence payment. She withdrew the UC claim, but in the meantime her tax credits had been terminated. The claimant appealed to the First-tier Tribunal, which allowed her appeal.

Judge Jacobs held that the tribunal had erred in law, set the decision aside and substituted a new decision such that the decision to terminate the tax credits award following the claim for UC was correct. The transition from tax credits to UC was governed, in these circumstances, by regulation 8 of the Universal Credit (Transitional Provisions) Regulations 2014 (SI No.1230). That provides for termination where a claim for UC is made and ‘the Secretary of State is satisfied’ that the claimant meets the ‘basic conditions’ for UC in section 4(1)(a) – (d) of the Welfare Reform Act 2012.

In this case, the tribunal found that the DWP, following receipt of the UC claim, had notified HM Revenue and Customs (HMRC) of that by way of a ‘stop notice’ – ie, which caused HMRC to terminate the award of tax credits. Judge Jacobs agreed that it was a requirement for the Secretary of State (ie, the DWP) to be satisfied that the UC basic conditions were met. It was insufficient (for termination of the tax credits award) merely for the DWP to have issued the stop notice. Rather, the tribunal ‘needed some evidence to link the stop notice itself to the Secretary of State being satisfied about the basic conditions. All that was required was an explanation of the system that led to the notice being issued’ (paragraph 9). In fact, the First-tier Tribunal had not been provided with that, and should have given directions for that omission to be remedied. But having been supplied with an explanation of the system by the DWP himself, Judge Jacobs now felt able to hold that the termination of the tax credits was correct. The subsequent withdrawal of the UC claim after the issue of the stop notice ‘could not rewrite history by pretending that the claim was never submitted in the first place’.

Comment from CPAG

It is disappointing that this decision does not include what explanation the DWP offered of how the system ensures that the Secretary of State is satisfied about the basic conditions being met before the stop notice is issued. The judge did not decide on whether the claimant could have protected herself by withdrawing the claim before the stop notice was issued, as that did not arise on the facts. But the reasoning of the decision would appear to allow that possibility. For more, see the article ‘Defective claims revisited’ in Bulletin 267, p8.

Summary

The claimant was the father of a child. He separated from the child’s mother in 2011. The mother received child tax credit (CTC) for the child, but by 2013/14 the child was spending broadly equal amounts of time living with each parent in turn. Following the issue by a court of an interim residence order (subsequently rescinded) that the child live with the claimant but with extensive contact with the mother amounting to shared care, the claimant submitted a claim for CTC citing the court order. HM Revenue and Customs (HMRC) decided that, on the basis of the court order, the father had main responsibility for the child, awarded him CTC from January 2014 and terminated the mother’s entitlement from the same date. The mother appealed to the First- tier Tribunal, who allowed her appeal, saying that there were no valid grounds for removing her entitlement and holding that because of the shared care neither the claimant nor the mother had main responsibility for the child.

Judge Wikeley allowed the claimant’s further appeal in so far as he held that although the original HMRC decision was wrong in being based exclusively on the existence of the interim maintenance order (PG v HMRC and NG (TC) [2016] UKUT 216 (AAC), reported as [2016] AACR 45), the tribunal had failed to make any finding as to which parent had main responsibility for the child, a finding which (as per CTC/4390/2004) is mandatory, not optional (paragraphs 21–22).

However, he did not set the tribunal decision aside. On the facts of the case, HMRC had decided that the tribunal decision had no direct impact on the father’s entitlement for that year, and had ultimately not attempted to recover (as an overpayment) any CTC from the whole of the 2013/14 year from the mother. As the judge noted, ‘we appear to have arrived at a situation in which HMRC has apparently given effect to separate decisions which mean that both parents have been found to be entitled to CTC’ for the tax year concerned, even though strictly only one person can be found to have main responsibility for a child at any one time. HMRC’s ‘pragmatic approach’ was perhaps understandable given the conflict-ridden history of the proceedings, and HMRC had exceptionally been able to countenance parallel payments for separated parents for the same period in other cases (DG v HMRC and EG (TC) [2016] UKUT 505 (AAC) cited) (paragraph 27). Exercising discretion as to whether setting the decision aside could be of any practical benefit to any of the parties, the judge decided not to do so (paragraph 28).

Summary

The claimant was subject to a reduction in his eligible rent due to the application of the bedroom tax to an allegedly spare bedroom in his house. However, the claimant disputed that, mainly on the grounds that the room was unsafe to use due to asbestos-related risks. In rejecting the claimant’s appeal, the First-tier Tribunal found that (following remedial work) the room had been safe to use from January 2014, even though a surveyor had not confirmed that until October 2014.

Although Judge Mitchell set the tribunal’s decision aside for error of law (the tribunal had given inadequate reasons why the room was usable before October 2014), he substituted a decision to the same effect – ie, that the claimant was subject to a reduction under the ‘bedroom tax’ from January 2014 (paragraphs 42–49). In so deciding, the judge had to consider whether the allegedly spare room was capable of counting as a ‘bedroom’ under the relevant rule – ie, regulation B13 of the Housing Benefit Regulations 2006, SI No.213.

The 2006 regulations do not define ‘bedroom’. However, the judge considered that although (given that this was a social sector tenant) the local housing allowance (LHA) rules did not apply, ‘the LHA provisions’ treatment of unsuitable rooms is worth mentioning’. Those rules define a ‘room’ as ‘a bedroom or room suitable for living in’ (paragraph 36). But in the end the judge considered that he did not need to decide whether such a definition should apply regarding what is a bedroom under the bedroom tax rules. Existing authority, in particular SSWP v Nelson [2014] UKUT 525 (AAC), demonstrated that a ‘bedroom’ needs to possess certain characteristics, and that included avoiding ‘obvious safety risks’ (M v SSWP [2017] UKUT 443). It could not be assumed, held the judge, that, ‘potential renters would be willing to move into properties with unsafe bedrooms’ (paragraph 45). On the facts of this case, the asbestos had been effectively cleared from the bedroom in January 2014. The room was in fact safe, and so could count as a bedroom from that time, even though the claimant was not aware of that until the following October (paragraph 47).

Comment from CPAG

The judge explicitly left undecided the question of whether the bedroom needed to be ‘suitable for living in’, as in the LHA rules. Although previous caselaw and the present cover at least some of that ground, the question could arguably be the subject of a future decision.

Summary

As a child, the claimant was entitled to DLA. As required by law, at that stage the DWP appointed someone to act for her – in this case, her mother. As she neared the age of 16, the claimant was subject to the transfer to PIP process. The claimant was refused PIP and (through her mother) appealed. The First-tier Tribunal, proceeding on the assumption that the mother was the claimant’s appointee, decided to proceed in the claimant’s absence and at the hearing heard only from her mother. The tribunal dismissed the appeal. The claimant, assisted by a representative, appealed to the Upper Tribunal arguing that the tribunal acted unfairly by failing to consider adjourning with directions for the claimant to attend and give evidence.

Judge Mitchell rejected the claimant’s further appeal. He considered that, if the claimant’s mother was in fact her appointee for PIP purposes, he ‘could see no real prospect of these arguments succeeding’. He then considered whether the claimant’s mother was indeed her appointee for PIP purposes, and held, on the facts, that she was. The DWP explained to the judge that although there was a mandatory appointment of an appointee for a child DLA claimant (under regulation 44 of the Social Security (Claims and Payments) Regulations 1987 (SI No.1968), there was no direct equivalent for PIP (which cannot be claimed by a ‘child’ – ie, someone aged under 16). However, as a matter of process, in the lead-in to a transfer to PIP, the DWP considers whether to make a new appointment on the basis that the child is ‘unable to act’ for her/himself, under a separate power at regulation 33. If such an appointment is made, this regulation 33 appointee is automatically transformed into a similar appointee for PIP purposes (by virtue of regulation 28 of the Personal Independence Payment (Transitional Provisions) Regulations 2013, SI No.387).

The Secretary of State conceded that she could not supply records regarding the process of conversion of the claimant’s mother from her DLA appointee to her PIP appointee, but did supply records indicating that this did occur. The Secretary of State argued that under principles of presumption of regularity, the DWP should be regarded as having carried this process out correctly. Considering the evidence (which included the mother’s recall of a visit about this), the judge held the claimant’s mother was properly to be regarded as her appointee for the PIP appeal – ie, following conversion of the DLA appointment to a PIP appointment under regulation 28 of the Transitional Provisions regulations. If the presumption of regularity did apply, there was nothing from the claimant to rebut it; if the presumption did not apply, on the balance of probabilities, the conversion was in any case made (paragraphs 33–34). Further, there was no error in taking the mother’s evidence at face value: it had not been suggested to the tribunal that her knowledge of her daughter was imited, and in fact she argued the contrary. However, in concluding remarks the judge said that he would ‘strongly recommend’ that in other such appeals the DWP ‘properly explain and, if necessary, evidence the basis for any appointment’ (paragraphs 35–36).

Comment from CPAG

It remains the case that tribunals are able to take evidence from children, but of course must consider if that is right, and in practice are often reluctant to do so. Ultimately, what is right will depend on the individual facts.