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CS v SSWP (JSA)

[2018] UKUT 218 (AAC)

Jobseeker’s allowance (JSA) - sanction – failure to participate in work scheme – alleged refusal to confirm identity

Summary

The claimant incurred a sanction for failure to participate on a placement under the work programme. He had turned up as requested, but when asked by the provider to confirm the accuracy of information regarding his identity on a computer screen (including his national insurance number and benefits) he refused, citing data protection concerns. The provider refused to allow the claimant to proceed to participate in the scheme. The First-tier Tribunal refused his appeal, rejecting the claimant’s argument of a breach of the Data Protection Act, and holding that by refusing to confirm the details on the computer he had, without good cause, failed to participate in the scheme.

Judge Hemingway allowed the claimants’ appeal and remitted the case to a new tribunal. He was not persuaded by any of the claimant’s arguments about data protection concerns. Such concerns could have been pursued through the appropriate enforcement channels provided by the Data Protection Act, and against that background he was not justified in refusing simply to confirm the accuracy of the details on the computer screen (paragraph 13). Neither did the tribunal err in considering conduct before commencement of actual activity on the scheme relevant, or in considering the requirement to confirm identity reasonable (paragraphs 15 –17).

However, the tribunal did err in failing to enquire into whether the claimant offered, or would have offered if asked, an ‘alternative but still satisfactory’ way of confirming his identity. For example, he might have had a passport or driving licence. Without enquiring into whether the claimant offered, or would have offered, such an alternative way of confirming his identity, the tribunal did not have a proper evidential basis for concluding that the claimant had refused to confirm his identity, as distinct from a refusal to confirm the accuracy of the details on the computer screen (paragraph 18).

Comment from CPAG

The claimant’s concerns about data protection did not amount to ‘good cause’ for not participating; however, that is not necessarily the same as a refusal to confirm identity, and that (plus the failure of the tribunal to make findings about that) is what saved the claimant in this case.

Jurisdiction
Upper Tribunal
On
Appeal reference
CJSA/3075/2016
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

LG v SSWP (ESA)

[2019] UKUT 220 (AAC)

Employment and support allowance (ESA) - trusts – whether discretionary or not – liferent trusts with power to advance capital

Summary

The claimant had learning disabilities. She was entitled to income-related ESA. Her late mother had set up a ‘liferent’ trust for her. Under the terms of the trust, the claimant had a right to receive any income from the trust funds. Although she had no enforceable right to any other payments, the trustees had a power to make additional payments of capital from the fund if they chose to do so. The First- tier Tribunal found that all the payments from the trust fell to be taken into account.

Judge Poole QC set the decision aside and remitted the case to a new tribunal. The tribunal had erred in failing properly to apply the relevant provisions, which were at Schedule 8 paragraph 16 and regulation 112 of the Employment and Support Allowance Regulations 2008, No.794. They provide, respectively, that ‘voluntary’ payments of income are among the income to be disregarded, and that voluntary payments not made at regular intervals are to be treated as capital. In so holding, the judge considered whether (as argued by the claimant) the trust should be regarded as a ‘discretionary’ trust, with the payments from it ignored. It was argued that the claimant had no control of the actual amounts she received or of the timings of the payments. Further, with reference to the official guidance at paragraph 28502 of the Decision Makers’ Guide (DMG), if the income was paid at the discretion of the trustees, it should be treated as a voluntary payment.

On the evidence, the trust was a ‘liferent’ trust with a power to advance capital and was not a ‘purely discretionary’ trust (paragraph 17). To identify the properties of a trust, it was necessary to consult the trust deeds or document, and the ‘way in which trustees administer trust funds does not change the character of the trust’ (paragraph 18). In this case, the terms of the trust expressly created a liferent trust, which gives the right to receive for life the benefits of a property or assets without the right to dispose of that property or asset. Accordingly, the claimant had a right to receive any income from the trust funds. However, trustees did have the choice as to whether to pay her additional capital. ‘The trust,’ held the judge, ‘is therefore not purely discretionary’ (paragraph 19). He went on to consider what was a ‘voluntary’ payment. He noted there was ‘no general exemption’ which stated that payments from a liferent or discretionary trust were to be left out of account, and that instead the payments must fall within a specific disregard (paragraph 22). He had reference to R v Doncaster Borough Council ex p Boulton [1993] 25 HLR 195, where it was held that ‘voluntary’ in this context did not mean ‘without compulsion’ but rather a payment without anything being received in return. In this case, the judge considered that the trustees did receive something in return for the payments of income from the trust, ‘which was a discharge of their legal obligation arising under the trust to pay liferent income to the claimant’ (paragraph 29). Therefore, the payments of income from the trust were not voluntary. However, the capital payments were voluntary. The official guidance in the DMG was consistent with this: ‘capital advances in excess of the liferent income are money paid at the discretion of the trustees, and fall to be treated as voluntary’ (paragraph 30). If paid at regular intervals, they were to be disregarded as income under paragraph 16 of Schedule 8; if not made at regular intervals, they were to be regarded as capital under regulation 112.

Comment from CPAG

This decision has some important findings about the relevance of the terms of the trust deed as distinct from the actions of the trustees in general, and about liferent trusts in particular. However, it does not disagree with the official guidance that payments of income from a discretionary trust should be regarded as voluntary and therefore ignored.

Jurisdiction
Upper Tribunal
On
Appeal reference
CSE/49/2019
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

OM v HMRC (CTC)

[2019] UKUT 263 (AAC)

Working tax credit (WTC) - self-employed – meaning of ‘on a commercial basis’ – limited number of financial transactions

Summary

The claimant was self-employed both as a legal advisor and a motor car dealer (as the judge noted, an ‘unusual combination’). He had been in receipt of both WTC and child tax credit for a number of years but latterly had found it difficult to make a profit from his work. HM Revenue and Customs (HMRC) decided to terminate his entitlement to WTC, on the basis that he did not satisfy the requirement to count as self-employed for the work to be ‘on a commercial basis’ or for the work to be ‘regular and organised’. The First-tier Tribunal rejected his appeal, noting that despite working over 30 hours a week, he was only making a profit of £49 per week, and that overall there was evidence of just seven financial transactions in the year.

Judge Hemingway held that the tribunal had erred in law, although on the facts did not set the decision aside as HMRC had made a final decision on his entitlement under section 18 of the Tax Credits Act 2002 which the claimant had not challenged, but which he now must in order to change it. The tribunal erred partly in saying that the issue before it was to determine if the work was ‘profitable and commercial’, so suggesting that if it was not profitable, it could not be commercial. As was pointed out in JW v HMRC [2019] UKUT 114 (AAC), self-employment did not of itself require profitability. So although profitability might be a relevant factor to consider, ‘it cannot be said that profitability is actually a requirement and it was not strictly speaking correct to say, as this tribunal did, that that was one of the issues it was required to decide with respect to entitlement’ (paragraphs 18–19).

Further, the tribunal erred in concluding that the work was not ‘regular and organised’ because of the limited number of financial transactions which had occurred in the relevant tax year. The judge did not agree with the implication that it ‘necessarily follows that a business is not regular and/or organised simply because there are a limited number of actual financial transactions’. If a business was properly administered and regular in the sense of, for example, regular attempts to obtain business or generate a profit, then that part of the test could be met notwithstanding a limited number of actual transactions (paragraph 19).

Comment from CPAG

This decision expressly approves the finding in JW v HMRC that profitability is not essential for work to count as self-employment in WTC. It further rules out an approach which in effect requires a sufficient number of actual financial transactions for the work to count as ‘regular and organised’. Neither decision holds that profitability and the number of transactions are actually irrelevant.

Jurisdiction
Upper Tribunal
On
Appeal reference
CTC/2494/2018
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

MP v Department for Communities (PIP)

[2019] NICom 55

Personal independence payment (PIP) - tribunals and medical evidence – review/audit procedure of official medical report resulting in alteration of report

Summary

The claimant was awarded the standard rate of the daily living component of PIP, but not the mobility component. When the case reached the First-tier Tribunal, it increased the award of the daily living component to the enhanced rate but refused to make an award of the mobility component. In the course of the appeal, it emerged that the official medical report (prepared by Capita) had been subject to an audit and had been altered (actually, to the claimant’s advantage, by increasing the points score for daily living). The tribunal refused to adjourn to get further details of the audit and the change.

Chief Commissioner Mullan held that the tribunal had erred in law and remitted the case to a fresh tribunal. The tribunal had erred in failing to put its observations of the claimant’s walking ability to her for comment, and so breaching the rules of natural justice. The tribunal had also erred in failing to adjourn as it refused the request on the basis that it was an attempt to ‘ambush’ the Department at the hearing, when in fact the issue of the audit of the report had been raised by the claimant’s representative well in advance of the hearing.

Although the Chief Commissioner was not strictly required to consider the substantive ground (ie, that the tribunal had erred in not having investigated the changes made to the medical report), he thought it right to issue guidance for future cases. That included the following (paragraph 64): the Department is ‘under a duty to co-operate with the tribunal’ and must also ensure an ‘equality of arms’ between the Department and the claimant; where an appeal raises a challenge to the validity of the official medical report involving an assertion that the report has been subject to audit and/or amendment, ‘there will usually be a requirement on the appeal tribunal to adjourn to investigate the matter further’; this was an issue of ‘fairness to the appellant’, and to that it extent it may not matter that the disclosure may not make a difference to the outcome. Applying that to the present case, the tribunal had also erred in failing to make further enquiries about the possible amendment to the report.

Comment from CPAG

This is a decision of the Northern Ireland Commissioners, and as such is not strictly binding in Great Britain. However, it draws on authority from the Upper Tribunal (in particular, CDLA/4127/2003, PF v SSWP (ESA) [2013] UKUT 634 (AAC) and AG v SSWP [2009] UKUT 127 (AAC)) and will be of persuasive authority.

Jurisdiction
Northern Ireland Commissioners
On
Appeal reference
C13/18-19(PIP)
Date of decision
Date published by CPAG
Read the judgment on the Department for Communities website

SB v SSWP (PIP)

[2019] UKUT 274 (AAC)

Personal independence payment (PIP) - mobilising – using a car – overall and holistic assessment required

Summary

The claimant was refused entitlement to the mobility component of PIP. This was because the claimant considered that he could mobilise so as to be able to plan and follow the route of a journey using his car. The tribunal did not consider how the claimant might fare if seeking to follow the route of a journey on foot or using public transport.

Judge Hemingway allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred firstly in failing to address the medical evidence before it, including a letter from the claimant’s GP, suggesting the claimant’s ability to drive was impaired more than it considered was the case, resulting in a failure to adequately explain its findings (paragraph 8). Further, in comments strictly obiter (not essential to the decision), the judge considered that rather than an exclusive focus on the ability to mobilise in a car, what was required was ‘an overall and holistic assessment encompassing a claimant’s ability to follow the route of a journey through various ways, including driving, travelling on foot and utilising public transport, with neither, of themselves, being determinative’ (paragraph 10). The judge agreed with the Secretary of State’s representative that tribunals should not limit themselves to considering, solely, an ability to follow the route of a journey using a car.

The judge did not agree that a failure to consider a claimant’s ability to use public transport ‘of itself’ amounts to an error of law. That was because the guidance in the official PIP assessment guide that a person should only be considered to follow an unfamiliar journey if s/he could use public transport was merely guidance, not the law (paragraph 10). However, the judge went on to say that an overall and holistic assessment was required, and also repeated that the tribunal should also have considered the possibility that even if a car could be used, parts of the journey might still have to be undertaken on foot, as held in JB v SSWP (PIP) [2019] UKUT 203 (AAC) (another decision of Judge Hemingway).

Comment from CPAG

Although strictly obiter, the recommendation of an ‘overall and holistic assessment’ of the ability to plan and follow the route of a journey would seem very difficult to depart from. Clearly, the judge considers that the crucial importance given to the ability to use public transport by the PIP assessment guide is an overstatement (a point he also made in JB v SSWP); but a tribunal that fails to consider public transport as part of the ‘overall and holistic assessment’ would surely be erring by given it too little importance. See also the article on p6 of Bulletin 273.

Jurisdiction
Upper Tribunal
On
Appeal reference
CPIP/1094/2019
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

JB v SSWP (PIP)

[2019] UKUT 279 (AAC)

Personal independence payment (PIP) - failure to attend medical – appeal after attended rearranged medical

Summary

The claimant was refused PIP after failing, without good reason, to attend her medical. Following mandatory reconsideration, she appealed. Before the appeal was heard, a new medical was arranged as the DWP now accepted she had good reason for not attending (she was ‘put back on the PIP journey’, to use the DWP language). However, although a medical report was prepared indicating that the claimant would score nil points, no formal decision on entitlement was made. When the First-tier Tribunal considered the claimant’s appeal, it took into account the medical report and decided that she was not entitled to PIP.

Judge Wikeley allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred in failing to make adequate findings of fact and in giving inadequate reasons for its decision. There was no error in the tribunal proceeding, as no actual new decision had been taken on the claimant’s entitlement after the rearranged medical, and so the appeal had not lapsed (AI v SSWP (PIP) [2019] UKUT 103 (AAC) (also by Judge Wikeley)). The tribunal had not erred in taking the medical report (ie, from the rearranged medical) into account. Although a tribunal was barred from taking into account changes of circumstance after the date of the decision under appeal, evidence produced at a later date could still shed light on how matters stood at an earlier date, and on the facts of the present case, the tribunal ‘was probably entitled’ to take the view that the claimant’s condition was ‘probably little different’ between the date of the decision and the date of the medical (paragraph 13).

The judge considered that ‘in the great majority of cases’ where the Upper Tribunal finds that a tribunal erred in a case like this, the correct approach will be to remit the case to a fresh tribunal, rather than remit to the Secretary of State for a decision. Although it was true that at no stage in this case had a decision maker actually made a decision as to which PIP descriptors applied, the extreme delay that had already occurred, the fact that the Secretary of State had had ample time to make such a decision after the rearranged medical, and that the First-tier Tribunal was ‘better placed’ than the decision maker to make a fair decision all supported remission to a fresh tribunal (paragraphs 18–22).

Comment from CPAG

The fact that (despite the issuing of the medical report) there was still no formal new decision on entitlement after the rearranged medical was crucial to the appeal not lapsing and the First-tier Tribunal retaining jurisdiction. In similar cases, given that any such history will have involved considerable delay, the judge’s recommendation, in the event of the tribunal erring in law, of remittal to a new tribunal rather than to a decision maker is likely to apply.

Jurisdiction
Upper Tribunal
On
Appeal reference
CPIP/1172/2018
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

JS v SSWP

[2019] UKUT 303 (AAC)

Employment and support allowance (ESA) - failure to attend medical – good cause of not attending – relevance of previously missed medicals

Summary

On the morning of the claimant’s medical regarding her ESA, her husband telephoned to report that she had fallen and was going to hospital. In the event the claimant did not consider it necessary to go to hospital, but later wrote that she was always having falls and sent some photographs of her injuries. The decision maker did not consider that the claimant had good cause for failing to attend the medical, and referred to a ‘pattern of avoidance’ as the claimant had missed five previous medicals for various reasons. The First-tier Tribunal dismissed the claimant’s appeal, giving a number of reasons including by making reference to the previously missed appointments. That showed, said the tribunal, that the claimant must have known the importance of attending and of having a good reason for not doing so.

Judge Jacobs allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal erred by giving inadequate reasons. That was partly because the reasons included things like saying that the decision maker was entitled to expect some medical evidence – the absence of such evidence did not mean that the fall was not significant. The tribunal had also erred by misusing the evidence of previously missed appointments. The tribunal judge was right to say that that was relevant but not decisive to the question of good cause. It was not wrong to say that the history was evidence of the claimant’s knowledge of the importance of attending and showing good cause. But that was not a sufficiently comprehensive treatment. In particular, it did not show the judge had considered whether the history supported the claimant’s explanation on this occasion. There was reference to the reasons for not attending on two of the previous occasions, but not all of them, and neither did the judge consider what was known of the claimant’s disabilities and whether that might support the reasons she gave (paragraphs 19–20).

More widely, in principle the significance of previously missed appointments ‘will depend on the circumstances of the case’ (paragraph 15). The explanation and evidence provided by the claimant will always be relevant. Previously missed appointments may also be relevant. For example, a claimant whose explanations refer to the same condition will not be under suspicion if there are repeated failures to attend due to agoraphobia. Similarly, variations in ability to attend from a claimant with a variable condition such as chronic fatigue syndrome will not in itself be a cause for suspicion (paragraph 16). A claimant who gives different reasons for not attending on successive occasions might (depending on the facts) have a lengthy history of failure to attend with what now seem to be dubious reasons, but could still have been delayed by bad weather or have had a domestic emergency. In short, ‘it all depends, which means that tribunals need to take care in their reasoning‘ to show whether they took account of previous failures and to show how they did so, taking account of points both for and against the claimant (paragraphs 17–18).

Comment from CPAG

See also the decision in SA v SSWP (ESA) [2019] UKUT 118 (AAC) in which there was also a history of failure to attend medicals.

Jurisdiction
Upper Tribunal
On
Appeal reference
CE/1167/2019
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

IR v SSWP (PIP)

[2019] UKUT 374 (AAC)

Personal independence payment (PIP) - failure to attend medical – need for tribunal to see appointment letter

Summary

The claimant lost entitlement to PIP having failed to attend the appointment for his medical. He said that was because he had had an epileptic fit which required an overnight stay in hospital. However, he was held not to have had good reason for not attending by both the decision maker and the First-tier Tribunal. The tribunal made reference to the fact that the claimant had not given a reason for saying he could not attend an earlier medical, and had not provided, as he had promised, medical evidence about the overnight stay in hospital.

Judge Wikeley allowed the claimant’s further appeal and substituted a decision that he did have good reason for failing to attend the medical. The tribunal had erred in not having sight of the official letter notifying the claimant regarding the medical. It was not enough that the claimant was aware of the appointment and had received the letter. As a general rule, held the judge, ‘the letter should be produced in order for the FTT to be satisfied that attendance at a consultation was a requirement and that a failure to attend had consequences’ (OM v SSWP (PIP) [2017] UKUT 458 (AAC) and MB v SSWP (PIP) [2018] UKUT 213 (AAC) cited) (paragraph 10). On the facts, the judge considered that although the claimant had not submitted evidence about the hospital stay, there was sufficient evidence about the claimant’s medical condition and disabling effects to show that he had good reason for not attending.

Further, in comments not strictly necessary to the decision (and so formally obiter and not binding), the judge considered whether the wording of the Atos letter which had advised the claimant of the appointment for the medical imposed clearly and unambiguously a legal requirement to attend. He had reference to existing authority on the necessity for a clear and unambiguous instruction to impose a legal requirement on a claimant (including Remilien v Secretary of State for Social Security [1998] 1 All ER 129, reported as R(IS) 13/98, and Hooper v Secretary of State for Work and Pensions [2007] EWCA Civ 495, reported as R(IB) 4/07). The letter sent by Atos said that ‘it was important’ that the claimant attended, and that failure to attend without good reason was likely to result in a disallowance. The judge onsidered that the plain failure to meet the test set out in existing authority was not remedied by reference to the likely consequences of not undertaking a particular course of action (paragraphs 24, 34–38).

Comment from CPAG

This decision is a clear reminder to tribunals of the need for them to have sight of a letter imposing a mandatory appointment. Although the comments on the particular wording of Atos letter concerned in this case are, strictly speaking, obiter, the need for clear and unambiguous wording is well established and is also binding. 

Jurisdiction
Upper Tribunal
On
Appeal reference
CPIP/2941/2018
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

KJ v SSWP (IS)

[2019] UKUT 312 (AAC)

Income support (IS) - living together as a married couple – application of ‘signposts’ – reasoning required in tribunal decision

Summary

The claimant was awarded IS on the basis that she was a lone parent. However, it was later decided that she was living together as a married couple (and so not entitled to IS) with someone she had represented as her ex- partner. The First-tier Tribunal dismissed her appeal. Her appeal to the Upper Tribunal involved arguments that the tribunal had failed properly to apply the correct legal test, by failing to make adequate findings of fact about relevant factors and failing to deal with the emotional aspect of the relationship.

Deputy Judge Najib dismissed the claimant’s appeal. The tribunal had correctly applied the legal test and given adequate reasons for its decision. The judge did not dispute that the correct starting point for deciding whether an unmarried couple was ‘living together as a married couple’ (ie, what is sometimes referred to as cohabiting) was set out in Crake v Supplementary Benefits Commission; Butterworth v Supplementary Benefits Commission [1982] 1 All ER 498. The six factors of shared household, stability, financial support, sexual relationship, children and public acknowledgement were, as described there, ‘admirable signposts’ to help in deciding the question. Deputy Judge Najib also endorsed the need to address the emotional aspect of the relationship, as emphasised by Judge Jacobs in PP v Basildon District Council (HB) [2013] UKUT 505 (AAC).

But the tribunal had applied that authority and reflected that in the reasons for its decision. The deputy judge accepted the Secretary of State’s argument that, in the light of comments by the Scottish Court of Session in DK v Secretary of State for Work and Pensions [2016] CSIH 84, the decision was to be reached in the round. No single fact or ‘signpost’, as in Crake, was decisive, and the question was not whether a particular ‘signpost’ was or was not established but whether on all the evidence the primary question of whether two people were ‘living as a married couple’ was established (paragraph 23). It was not necessary for a tribunal to ‘give long and precise’ accounts of its reasoning regarding each of the individual ‘signposts’, and in fact there was ‘no requirement in every case for there to be a “finding” on each signpost’, as long as the tribunal had taken all the evidence into account and answered the primary question, namely whether the claimant was living with someone as a married couple. The tribunal had given a summary of the reasons why each ‘signpost’ was met, and the deputy judge was also satisfied the tribunal had given adequate consideration to the emotional aspects of the relationship (paragraphs 25–27).

Comment from CPAG

This decision is not authority that the ‘signposts’ in Crake and the ‘emotional aspect’ in PP are not at the core of the correct legal test for deciding cohabitation. Rather, it holds that a tribunal is not required to give detailed reasons about each signpost or factor, as long as it has given adequate consideration to them and taken all the relevant evidence into account. (Note that since 2 December the statutory test is whether the two people are living together ‘as a married couple or civil partners’.)

Jurisdiction
Upper Tribunal
On
Appeal reference
CIS/1028/2019
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

Bristol City Council v SJP (HB)

[2019] UKUT 360 (AAC)

Housing benefit (HB) - capital disregard – where property occupied by former partner – meaning of ‘estranged’

Summary

The claimant moved out of the matrimonial home, with her three children, in 2012. Her husband remained in the property. The claimant claimed HB in 2012 and 2014. The local authority maintained that she did not declare her interest in the property until 2016, by which time she was going through a divorce. The local authority decided that she had not been entitled to HB as a result of the 2014 claim and raised an overpayment for the 2012 to 2016 period. The claimant appealed, arguing that she had declared her interest in the property and that the overpayment was not recoverable from her. The First-tier Tribunal allowed her appeal, but on the basis that the former home had been occupied by a former partner from whom the claimant was not ‘estranged’, and therefore fell to be disregarded as her capital – ie, and so she had not in fact been overpaid.

Judge Sutherland Williams allowed the further appeal of the local authority and remitted the case to a fresh tribunal. The tribunal had erred in its approach to the meaning of whether the claimant was ‘estranged’, and had wrongly found that her interest in the former matrimonial home was to be disregarded as her capital, under paragraph 4 of Schedule 6 to the Housing Benefit Regulations 2006, No.213. As a result, the ‘central factual issue’ of whether the overpayment was recoverable from her had been left unresolved and would need to be dealt with by the new tribunal. The tribunal was to proceed on the basis that the claimant was estranged from her former partner at all relevant times (paragraphs 40–46).

The judge held that the claimant was not entitled to have the value of her interest in the matrimonial home disregarded under paragraph 4(b). That was because, contrary to the tribunal’s finding, she was ‘estranged’ from her former partner. Paragraph 4(b) applies in cases where the home is lived in by someone regarded as a former partner because (for example) the couple are no longer members of the same household, but not where they are estranged, divorced or where their civil partnership has been dissolved. The tribunal found that the claimant and her former partner had remained in contact ‘purposefully and effectively’ regarding things like childcare, maintenance and money matters and concluded that they were not estranged. But that was wrong. In the context of Schedule 6, held the judge, estrangement ‘implies that the reason the two people concerned are no longer living together as a couple in the same household is that the previous relationship between them has ended… the test is not limited to whether they continue to remain friendly relations or remain on good terms with one another’ (paragraph 9). That approach was founded in previous caselaw authority, in particular R(IS) 5/05 in which it was held that the question was whether the parties had ceased to consider themselves to be a couple. Drawing on that, Judge Sutherland Williams said that an estranged couple ‘may operate on a functional, non-acrimonious level, but this cannot be considered to constitute a continuation of the previous or marital relationship’ (paragraph 34).

Comment from CPAG

This decision contains a considered review of previous authority, including (in addition to R(IS) 5/05) the decisions in CPC/683/2007, CH/117/2005 and CH/3777/2007, and will be a key authority on the approach to ‘estrangement’ in the context of Schedule 6. The claimant in this case is still able to argue her original point (ie, that the overpayment is not recoverable from her) at the new First-tier Tribunal.

Jurisdiction
Upper Tribunal
On
Appeal reference
CH/624/2019
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

KD v SSWP (CUC)

[2020] UKUT 18 (AAC)

Universal credit (UC) - minimum income floor – application to seasonal work – not unlawful

Summary

The claimant worked as a self-employed gardener. There was some seasonal variation in that work (due to gardening work being scarcer in the winter). It was decided that the minimum income floor applied to him, and that as a result of the income from that he was not entitled to UC. The First-tier Tribunal rejected the claimant’s appeal. He appealed arguing, in effect, that the minimum income floor could not be applied to him as a seasonal worker, and that the application of it to him resulted in unfairness.

Judge Hemingway dismissed the claimant’s appeal. The minimum income floor was provided for at regulation 62 of the Universal Credit Regulations 2013, SI No.376. The legislation made no reference to seasonal work. Rather, in the UC context, the question was whether the claimant was ‘in gainful self-employment’, as defined at regulation 64. That also made no reference to seasonal work, and the only aspect of it that might be relevant to that is the requirement that the work is ‘regular’. Without having taken full argument on the point, the judge considered that it would be to go too far to conclude that in this context ‘regular’ meant work performed at a constant or almost constant frequency. Rather, the word would be ‘entirely appropriate to describe a business which conformed to a standard pattern even if that pattern had predictable or relatively predictable variations’ (paragraph 19). It was therefore open to the tribunal in this case to find, as it did, that the requirement for regularity was satisfied.

Regarding whether the minimum income floor was lawful in a wider sense, the judge was referred to the decision of the High Court in R (Parkin) v Secretary of State for Work and Pensions [2019] EWHC 2356 (Admin) (Bulletin 273, p9), in which it was held that the rule was not in breach of human rights or Equality Act provisions. Although the Upper Tribunal was free to depart from a High Court judgment if satisfied that it is wrong, Judge Hemingway was not so satisfied and in fact agreed with its reasoning and followed it (paragraph 20).

Comment from CPAG

The judge indicated that he agreed with the tribunal that the legislation did not define a decision to apply the minimum income floor as one which itself carried a right of appeal. The implication is that disputes about application of the minimum income floor should be made against the resulting outcome decision on entitlement.

Jurisdiction
Upper Tribunal
On
Appeal reference
CUC/2641/2018
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website

KB v SSWP

[2019] UKUT 408 (AAC)

Universal credit (UC) - sanction – failure to apply for job – claimant considered application would be pointless

Summary

The claimant accepted a claimant commitment which included that she would apply for vacancies she was told to apply for by her work coach. The work coach identified with the claimant that she should apply for the position of a part-time coffee assistant/barista in a coffee shop. The claimant did not apply for the post. On appeal against the subsequent high level sanction, she argued that she had ‘good reason’ for not applying, as the company’s website said that it expected its employees to have a ‘passion for coffee’, and as she did not have such a passion, any application from her would surely be ‘pointless’. The First-tier Tribunal rejected her appeal.

Judge Mitchell rejected the claimant’s further appeal on this point. Although the First-tier Tribunal had erred in failing to give adequate reasons. But that was not material in this case, as on the facts no reasonable tribunal could have found that the claimant had good reason for failing to apply for the vacancy because she had formed the view that, lacking a passion for coffee, any application would be pointless (paragraph 59). Parliament had enacted (in this case, at section 26 of the Welfare Reform Act 2012) a ‘good reason’ provision without providing a definition or any express guidance about its express meaning (paragraph 58). Evaluation of whether a claimant had good reason to apply for a vacancy s/he had been directed to apply for, said the judge, is always likely to include the claimant’s dealings with her/his work coach. The claimant ‘may have had a stronger case’ if she had asked her work coach to reconsider the direction to apply for the job before herself deciding not to do so (paragraph 60).

Further, said the judge, ‘a claimant’s belief that it would be pointless to apply for a particular vacancy, being a vacancy that she had previously agreed to apply for following discussions with a work coach, cannot in my judgement amount to a good reason for failure to apply where that belief is arrived at without any subsequent consultation with the official for the time being charged with assisting the claimant to obtain work (ie, the work coach)… in general, it would not be consistent with parliament’s purpose if, following a work coach interview at which a claimant raised no concerns about the appropriateness of a vacancy, the claimant could, without fear of sanction, subsequently decide for themselves would be pointless.’ (paragraph 61).

Comment from CPAG

It remains possible that a claimant’s view of the appropriateness of a job s/he has been directed to apply for could be relevant to whether s/he has good reason for failing to apply for it. But prior discussion of such concerns with the work coach will usually be very important to this. The individual facts will be crucial. Although not commented on specifically by the judge, lack of ‘passion’ for a job may very well be a difficult basis for a ‘good reason’ argument in any such case.

Jurisdiction
Upper Tribunal
On
Appeal reference
CUC/2274/2018
Date of decision
Date published by CPAG
Read the judgment on the GOV.UK website