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Summary

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

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

Comment from CPAG

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

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

Summary

In this decision, the High Court rejected an argument that the failure to include contributory employment and support allowance as a qualifying benefit for entitlement to a community care grant from the social fund was a breach of her human rights.

The claimant was entitled to contributory employment and support allowance (ESA) but not to income-related ESA. Her claim for a community care grant was refused on the basis that she was not, as required by Direction 25 of the Social Fund Directions, entitled to a qualifying benefit (which included income-related ESA, but not the contributory form). She argued that this was a breach of her human rights, in that it constituted unlawful discrimination against her under Article 14 of the European Convention of Human Rights (prohibition on discrimination) read together with Article 8 (right to respect for private and family life).

Dismissing the application, Deputy Judge Brennan QC noted that the Secretary of State conceded that the facts of the case fell within Article 8 (paragraph 17). However, he held that Article 14 was not engaged, as no discrimination under the Article was made out. Contrary to the claimant's argument, there was no discrimination against her on the basis of 'property', as her proprietary right to contributory ESA was not interfered with (paragraph 22). Further, there was no discrimination on the grounds of the claimant having 'other status' as referred to in Article 14. The claimant did not have a personal characteristic that formed such a status. Article 14 did not outlaw discrimination on any ground whatsoever, and the treatment of the claimant (ie, so that she was entitled only to contributory ESA) simply reflected her work record and national insurance contribution record, without sufficient personal characteristic to bring her within the Article (paragraphs 25-30). Even if there was unlawful discrimination, the deputy judge considered it justified. Applying the test of whether the discrimination was 'manifestly without reasonable foundation, that is to say irrational', as applied by the Court of Appeal in Humphreys v Commissioners for Her Majesty's Revenue and Customs [2010] EWCA Civ 56, he held that it did not meet that test (paragraphs 31-36).

Decision in brief

Test pre-28 January 2013 amendment - at this time, although the test did require inability to remain at a work station by standing and by sitting, it did not consider ability to remain at a work station by means of alternately standing and sitting - MC v SSWP [2012] UKUT 324 (AAC) disapproved in that regard - but from 25 July 2013, wording of test amended so as also to consider a combination of standing and sitting.

Summary

The claimant had mental health problems which led to her having difficulties in getting around unaccompanied and which led her to behave 'occasionally in an unreasonable manner when in the presence of other people'. She was assessed as having limited capability for work, but not as having limited capability for work-related activity and so was put in the work-related activity group. On appeal, it was argued that she should be treated as satisfying the test on the basis that, were she not, there would be a 'substantial risk' to her health from having to carry out work-related activity. The First-tier Tribunal dismissed her appeal, although there was no specific evidence before the tribunal as to what 'work-related activity' the claimant could do without such risk. The tribunal merely found that 'she may be required to attend for occasional interviews and comply with any reasonable requirement made of her in that context.'

Allowing the claimant's further appeal, Judge Gray held that the tribunal, erred in making assumptions about what was to be expected of the claimant rather than relying on evidence. The judge also rejected the submission of the Secretary of State that because there was nothing in the regulations that specified what work-related activity the claimant could be expected to undertake, those activities cannot be stated. Rather, held the judge, 'in order to exercise his judgement and make that decision the Secretary of State must have had some work related activity in mind' (paragraphs 11-14). Decisions that the Secretary of State must provide sufficient information about work-related activity (AH v SSWP [2013] UKUT 118 (AAC) and MN v SSWP (ESA) [2013] UKUT 0262 (AAC)) were noted in support of that (paragraphs 7 and 14).

In so holding, the judge disagreed with the finding in AK v SSWP (ESA) [2013] UKUT 435 (AAC) (file number CE/3916/2012) (9 August 2013) that it in the absence of evidence from the Secretary of State about work-related activities, the First-tier Tribunal could rely on typical examples that were within its knowledge and hold that if the claimant could safely undertake those activities, then there would be no 'substantial risk'. That seemed to Judge Gray to be 'looking at matters from the wrong end of the telescope'; even if the tribunal could identify some activities, that was 'insufficient' to conclude that there was no substantial risk, because the actual activities the claimant would be required to engage in 'may be of a very different order' (paragraphs16-17). The tribunal in the present case was not entitled to make an assumption as to what work-related activity would be required (paragraph 27). A tribunal faced with either no information or generalised information about work-related activities that decided not to adjourn to get case specific information could take one of two routes: decide that the Secretary of State had not shown that the claimant did not have limited capability for work-related activity or make a decision stating in terms what work-related activity would not result in substantial risk, and stating that more onerous commitments would be likely to result in substantial risk, with that being taken into account by the Secretary of State in framing any requirements (paragraphs 26-33).

Summary

In this decision, the Court of Appeal considered the Secretary of State's appeal against the judicial review decision of the Upper Tribunal in MM & DM v SSWP [2013] UKUT 259 (AAC). The Upper Tribunal had held that the work capability assessment placed claimants with mental health problems at a substantial disadvantage by reason of the failure to obtain further medical evidence at an early stage in the process and that the Secretary of State was under an obligation to make 'reasonable adjustments' under the Equality Act 2010 to remedy that. The Tribunal then directed the Secretary of State to investigate and assess such adjustments - ie, before any formal finding of unlawful discrimination was made.

The Court of Appeal unanimously rejected the Secretary of State's challenges to the Upper Tribunal's findings about the work capability assessment and claimants with mental health problems. But it upheld a challenge that the tribunal had no power to direct the-Secretary of State to investigate and assess the necessary adjustments. It was the case, as the Secretary of State argued, that under section 21 (3) of the Equality Act 2010, any challenge regarding reasonable adjustments had to involve seeking to establish discrimination against at least one disabled person - it was not sufficient for interveners to do so. However, although interveners had been involved, there were also at least two disabled claimants with relevant claims in this case, so it was not the case that the Upper Tribunal had no power to grant relief in the judicial review (paragraphs 48-57). Regarding other arguments, the Secretary of State had not established that the finding of substantial disadvantage was either perverse or unfairly reached, and the tribunal had properly identified relevant disadvantages as potentially relating both to the actual determination or outcome of the benefit claim, and the process leading up to it (paragraphs 66 and 70-77).

However, the Court accepted that the tribunal had overstepped its powers in issuing directions to the Secretary of State. It was not for the tribunal to determine for itself what constitutes a reasonable adjustment or to supervise the process of evidence gathering; that would be, said Lord Justice Elias in the lead judgment, to involve the tribunal in 'determining policy issues, which is constitutionally improper... it is not for the court to step into the Secretary of State's shoes and to require the Secretary of State to incur public funds in ways he or she might consider inappropriate' (paragraph 82). It was perfectly proper for the tribunal to adjourn to allow further evidence to be submitted on the reasonableness issue; but actually doing so was a matter for the Secretary of State, and so the tribunal's directions to do so were quashed (paragraphs 83-4).

Summary

In this decision, the Court of Appeal rejected the Secretary of State’s challenge to the earlier decision of the High Court, Jwanczuk, R (On the Application Of) v Secretary of State for Work and Pensions [2022] EWHC 2298 (Admin). In that decision it had been held that the requirement for bereavement support payment (BSP) for the claimant’s deceased spouse to have paid sufficient national insurance contributions was in breach of human rights law as discrimination in the case of a late spouse who had been unable to work for their entire life. 

The claimant’s late wife had suffered from severe disability since birth and had never been able to undertake paid employment. The claimant had been refused BSP on the basis that section 31 of the Pensions Act 2014 required the late spouse to have met an NI contribution condition involving payment of class 1 or 2 NI contributions. In the High Court, Mr Justice Kerr accepted the claimant’s argument that the decision of the Northern Ireland Court of Appeal in O’Donnell v Department for Communities [2020] NICA 36, although not binding in Great Britain, fell to be applied as it was not ‘clearly wrong’. In that decision, the similar Northern Ireland rule was held to be unlawful in such a case (ie, where the late spouse had been unable to work for their entire life), as it was in breach of the prohibition of discrimination at Article 14 of the European Convention on Human Rights (ECHR). The remedy for the breach was to read the legislation as if, in such a case, the NI condition did not apply. The Secretary of State appealed against the decision of the High Court. 

The Court of Appeal unanimously rejected the Secretary of State’s further appeal. All the Secretary of State’s arguments were dismissed, including that the High Court had wrongly followed the decision in O’Donnell, that the claimant did not have an ‘other status’ for the purpose of Article 14, that the alleged discrimination was not justified and that the only available remedy was a declaration of incompatibility between the Pensions Act and the ECHR. Giving the lead decision, Lord Justice Underhill said regarding the application of O’Donnell: ‘In my view a judge of the High Court should be even slower than this court to reach a different conclusion from an appellate court in Scotland or Northern Ireland on an identical issue about the meaning or effect of UK legislation’ (paragraph 49). There was no difficulty with regarding the claimant’s late wife’s disability leading to a lifelong inability work (and so pay the requisite level of NI contributions) as a sufficient ‘other status’ for Article 14. On justification, applying the Bank Mellat questions set out in Bank Mellat v Her Majesty’s Treasury (No.2) [2013] UKSC 39, reported as [2014] 1 AC 700, there was no doubt as to the legitimacy and rationality of the national insurance requirement. So the key issue in this case boiled down to that of proportionality between the measure and the severity of its effect. The Northern Ireland Court of Appeal in O’Donnell had considered the failure to make an exception for the situation at issue to fail the requirement for proportionality, and so was not justified. Although LJ Underhill considered some of the reasoning there debatable, he said: ‘I do not think it right to develop the points further, still less to express any concluded view, because I do not believe that this comes close to being a case of the exceptional kind where it would be right for this court to decline to follow O’Donnell’ (paragraph 105). On remedy, the Secretary of State’s essential point was that to permit a reading of the legislation that excluded the NI condition was to go against the grain of the legislation as a whole. Again, the court considered there was some force in that, but nevertheless (said LJ Underhill): ‘The Northern Ireland Court of Appeal has decided as a matter of ratio that the relevant statutory language can be read down in the way that Kerr J did, and I see no compelling reason which would justify our reaching a different conclusion’ (paragraph 110).

Decision in brief

Entitlement stopped when claimant claimed tax-free childcare (refused) – decision in HMRC v RS (CTC) [2021] UKUT 310 in this case now formally not a final decision – but present decision agrees with it, so that following termination claimant could not in August 2019 make a new claim for tax credits on the basis that the savings (or transitional protection) rule at Article 7(6) of SI 2015 No.634 applied to him as he had a tax credits award for the previous tax year – the rule requires the new claim to be ‘for the next tax year’ (ie, not to a part tax year) – the transitional protection therefore ceased once tax credit entitlement was terminated – however, ‘I should make it clear I am not expressly deciding that the protection afforded by Article 7(6) only applies in the context of renewal claims…in the absence of full argument on the point, I do not exclude the possibility that there may be other types of case which fall within the remit of Article 7(6)’ (paragraph 53)