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Summary

This case concerned entitlement to the care component of disability living allowance (DLA), where the claimant and her mother (both British nationals) were resident in the UK, but her father was working as a self-employed person in Belgium. In the Upper Tribunal decision in this case (AH v SSWP [2020] UKUT 53 (AAC)), Judge Jacobs had held that Belgium was the competent state for payment of sickness benefits (such as the care component of DLA), and therefore the claimant was not entitled to DLA, as the relevant European co-ordination rule provided that the state in which the family member was working was the competent state. 

The Court of Appeal unanimously allowed the claimant’s further appeal. The competent state was the state in which the claimant (and her mother) was resident, and that was not altered by the fact that her father was working in another member state. The relevant European rules were in Regulation (EC) No.883/2004. Article 11 provided that there could be only one competent state. Initially at least, Article 11(2)(e) provided that the UK was the competent state for the claimant, as the state of residence. Giving the lead decision, Lord Justice Lewis held that, firstly: ‘…the appellant falls within Article 11(3)(e) and she is subject to the legislation of the member state of residence, that is the United Kingdom. The appellant is, therefore, an insured person as she satisfies the conditions required under the legislation of the competent member state (the United Kingdom) to have the right to benefits’ (paragraph 41). 

The next question was whether there was any rule of priority by which the claimant fell instead to be subject to the legislation of another member state. In the Upper Tribunal, it had been held that there was – at Article 21 – and that, as a result, Belgium was the competent member state. But that was incorrect: ‘The wording and purpose of Article 21 do not suggest that that article was intended as a rule of priority which displaces the legislation that would otherwise be applicable applying Article 11 of the Regulation. Article 21 is not expressed as a rule of priority unlike other articles of the Regulation such as, for example, Article 32. Rather, Article 21 is intended to prevent an insured person, and his or her family members, from being denied cash benefits because they are resident in a state “other than the competent state”. Thus, for example, if an insured person is employed in one member state, so that is the competent state, that person and his or family members will be entitled to sickness benefits under the legislation of that state. They do not lose their entitlement under the legislation of that state because the insured person, or the family members, are resident in a different state. The competent state remains responsible for providing the cash benefits payable in accordance with its legislation’ (paragraph 44). The history of the relevant provisions also indicated that: ‘... it is the legislation of the state of residence that has priority in cases involving payment of cash sickness benefits such as the care component of disability living allowance’ (paragraph 45). Further, ‘... there is nothing to indicate that the European Union legislature was intending to effect a significant shift so that a family member would no longer be entitled to receive cash benefits in the state where he or she resided (as was formerly the case) but instead would receive cash benefits from the state where the parent worked or was self-employed’ (paragraph 49). Therefore, the claimant was entitled in her own right to the care component of DLA, and the UK (as the state of residence) was the competent state, with no priority arising from any rights derived from her father in the state in which he was self-employed.

Summary

The claimant was entitled to ‘old-style’ contributory ESA. Following conviction,  he was in prison between 3 January 2020  and 21 December 2020. He was disqualified from receiving payment while in prison,  but no decision was taken to terminate his entitlement during that time (termination  had been possible, based on being treated  as not having limited capability after being disqualified for more than six weeks). On his release from prison, the claimant applied for payment of his ESA to be reinstated. Instead,  it was decided in a supersession decision  that he had lost entitlement to his ESA while  in prison (ie, after more than six weeks of disqualification), so would now have to make a new claim – ie, a claim for ‘new-style’ ESA under the UC system. His appeal was upheld by the First-tier Tribunal, who held that he had not been disqualified from ESA while in prison and so payment could resume on release. 

Judge Rowland held that, on a supersession for change of circumstance the claimant had indeed lost entitlement to contributory ESA while in prison, but also that the Secretary of State must also (ie, without a new claim) decide the claimant’s entitlement to ESA from 22 December 2020. It was an error for the Secretary of State not to have done that when carrying out the supersession. Although the tribunal had erred in its reasons as to why the ESA had not terminated while in prison (it wrongly held that imprisonment was not a ‘penalty’ for the purposes of disqualification and therefore subsequent loss of entitlement), it was nevertheless the case that his entitlement had not been brought to an end by the Secretary of State during that time, and so at the time of the supersession he still had a current award, and simply could not make a ‘new’ claim. Further, the supersession had to consider his entitlement not only during the past period in prison but also his entitlement subsequent to his release – ie, down to the date of the supersession decision itself. The claimant might still be entitled to old-style ESA at the date of the supersession decision (although that was probably no longer the contributory form, as his period of limited capability for work had been broken while in prison and so the relevant contribution years had changed. But it was possible he was entitled to the income-related form).  

The key was that the claimant had an extant award of contributory ESA at the time of the supersession decision – ie, because (for some reason) the Secretary of State had not brought entitlement to an end in prison after the claimant had been disqualified for six weeks. Because of that, it was simply not possible  for the claimant to make a new claim. Judge Rowland said: ‘A decision that the award should be superseded because the claimant had not been entitled to contributory employment and support allowance during a period that had ended before the supersession decision was made cannot justify a decision that he had no entitlement during a later period or at the date of the decision merely because he had not made a new claim. A person who has a current award of a benefit cannot be expected to, and is neither obliged nor entitled to, make a new claim for the same benefit, even if payments have been suspended.  A supersession decision must therefore determine entitlement up to the date of the decision itself without a new claim having  been made’ (paragraph 27).

Comment from CPAG

Although the term is not used in  the decision, this is an example of a circumstance in which a so-called ‘closed period supersession’ should be carried out – ie, a supersession which can encompass a loss of entitlement for a limited past period, where entitlement has not actually been brought to an end, and has arisen again (or  at least may have arisen again) by the date of the supersession.

Summary

The claimant claimed ‘old-style’ contributory ESA in March 2018. He said that he was due to start getting an occupational pension, and was instructed to report when the pension started to be paid. He did not do that. The ESA continued unadjusted until the DWP noticed on 12 August 2018 that the pension had started to be paid in late March 2018. A decision was issued that the claimant had been overpaid ESA from that point and that it was recoverable from him on the basis that he had failed to disclose the commencement of the pension. On appeal to the First-tier Tribunal, he argued that the ESA office had a computerised real-time information (RTI) feed from HM Revenue and Customs (HMRC) which would have told them about commencement of the pension, and so that  he had not failed to disclose. His appeal was dismissed.

Judge Church dismissed the claimant’s further appeal. The First-tier Tribunal had not erred in holding that he had been under a duty to disclose the commencement of his occupational pension, he had failed to carry that out, and that had been the cause of the overpayment, which was therefore recoverable from him under the terms  of section 71(1) of the Social Security Administration Act 1992. There was no dispute that the claimant had not in fact reported the commencement of the pension. HIs argument before the Upper Tribunal was that there had been evidence before the First-tier Tribunal that an ‘RTI scan’ indicating the pension was available to the ESA office well in advance of the August date on which the Secretary of State said the office became aware of it, so that the claimant could not have ‘failed’ to disclose something already known to the office. Further, the First-tier Tribunal had  erred in failing to make a finding of fact about when the office became aware of the pension, and in failing to analyse the chain of causation regarding the overpayment.

Rejecting those arguments, Judge Church took into account evidence (which had been before the First-tier Tribunal) about the DWP internal arrangement for use of the RTI scan from HMRC. That was that a data feed is received from HMRC, but the scan itself is not commenced until that the feed is accessed and the scan run by inputting DWP data – which in this case was not until 28 August 2018. Although the tribunal had not made  a specific finding on the date the office became aware of the pension starting, it was sufficiently clear overall that the tribunal considered that to have been on 12 August 2018. Information that was available to office via the data feed was not the same as information known to them as a result of the scan, which was not conducted until August. On causation, the judge cited relevant caselaw authority (in particular, SSWP v SS (SPC) [2013] UKUT 272 (AAC)), to the effect that  the existence of a computer interface could, even in cases where the claimant had strictly speaking failed to disclose, mean that some other cause (such a DWP failure to act on information) had caused the overpayment. But that was entirely dependent on the particular facts and what in common sense terms had caused the overpayment. In the present case, the judge considered that there had been no DWP failure: ‘The First-tier Tribunal found as a fact that the claimant was told that he needed to notify the Secretary of State when he  started receiving his pension, and the First-tier Tribunal did not find that the Secretary of State had knowledge of the pension coming into payment prior to 12 August 2018. On this basis I am not persuaded that the claimant was, prior to the Secretary of State gaining actual knowledge of the payments on 12 August 2018, relieved of his obligation to notify the Secretary of State of the commencement of the payments, or that the Secretary of State came under a duty to investigate all sources  of information to which he had access (including the “RTI” data) to ascertain whether payments had started’ (paragraph 50).

Comment from CPAG

Note that although on the facts the existence of a computer interface did not avail the claimant, the judge did not depart from other authority holding that in other cases such arrangements might be relevant. For more on the possible effect of computer interfaces and failure to disclose, see the article in Bulletin 295, p7.

Summary

The claimant had third-party deductions made from her income-related employment and support allowance (ESA) for fuel and water debts. The Court of Appeal considered an appeal by the Secretary of State against the preceding decision of the High Court in this case ([2022] EWHC 2392 (Admin), 23 September 2022). In that decision, the High Court held that the official guidance regarding third-party deductions for fuel and water debts from legacy benefits was unlawful, in that it failed to make clear to decision makers that claimants should be offered the opportunity to make representations and/or provide relevant information before the third-party deduction decision was made. The Court of Appeal unanimously rejected the Secretary of State’s further appeal.

All the Secretary of State’s arguments were dismissed. Those arguments included that the High Court had misapplied the approach taken to fairness in Bank Mellat v HM Treasury [2013] UKSC 38; [2013] UKSC 39, where the Court of Appeal had considered the scope of the common law duty to give advance notice and an opportunity to make representations to an individual against whom it was proposed to exercise a draconian statutory power. Giving the lead opinion in the present decision, Lord Justice Edis rejected that and said: ‘In my judgement, the regulations, by framing the decision making as they do, require a consideration of the interests of the individual claimant and their family. Under the guidance, however, the decision maker has the option  of contacting them, or of investigating their benefit records, but the guidance allows a decision to be made where the claimant or their family has been given no opportunity  to supply information beyond what the utility company puts in the spreadsheet. This appears to me to be obviously unfair’ (paragraph 66). Other arguments, which included that the judge in the High Court had misread the guidance and had made two perverse findings of fact, were also dismissed.

Comment from CPAG

As per the decision of the High Court, in strict terms this decision is regarding relevant deductions in the legacy benefit scheme and not in the universal credit scheme (where the rules are differently worded). It remains arguable that the principle upheld in it should also apply in that scheme.

Summary

The claimant had been entitled to disability living allowance (DLA) at the highest rate of the mobility component (for an indefinite period) and the lowest rate of the care component. On transfer to personal independence payment (PIP), the decision maker refused both components. That was upheld on appeal (after a face-to-face hearing) by the First-tier Tribunal, which included in its decision that it did not consider the claimant to be a credible witness on the basis of various alleged internal inconsistencies in his evidence.

Judge Hemingway allowed the claimant’s further appeal, and remitted the case to a fresh tribunal. On the facts of the case, the tribunal had erred in effectively treating the claimant’s claim for PIP as an entirely fresh claim, and ignoring the content and evidence of the previous award of DLA. Applying CH and KN v SSWP (PIP) [2018] UKUT 330 (AAC), reported as [2019] AACR 11, although it was not always essential for a tribunal to refer to the previous DLA award, depending on the facts it may be in the particular case. In the present case, there was a ‘stark difference’ in the previous award of the high rate of the mobility component of DLA for an indefinite period and the tribunal’s refusal to make any award of the mobility component of PIP. The tribunal ‘was required, as a component of its overall duty to give adequate reasons for its decision, to explain that divergence’ (paragraph 10).

In obiter comment, the judge also addressed two other issues raised in the appeal. Firstly, the claimant’s representative argued that the tribunal had erred in not putting its concerns about alleged inconsistencies in the claimant’s evidence to the claimant in the hearing. Judge Hemingway noted that in CIS/4022/2007 it was said that, subject to the requirements of natural justice, ‘there is no obligation on the tribunal to put a finding as to credibility to a party for comment before reaching a decision’. If, by contrast, the claimant in the present case was arguing that a tribunal always had a duty to put a concern about any inconsistency to the claimant, that was ‘simply unrealistic’. There is no such duty in every case. ‘The key,’ said the judge, ‘is whether a failure to put such points or concerns would breach the rules of natural justice and that is a matter of fact, degree and evaluation’ (paragraph 13). Secondly, the judge raised the question of whether there is always a specific duty on the tribunal to explain how it had applied the criteria (regarding the ability to carry out tasks repeatedly, safely, reliably and in a reasonable manner) in regulation 4(2A) of the Social Security (Personal Independence Payment Regulations) 2013 No.377. Although not trying to lay down hard and fast rules, the judge considered that it would not always be fatal not do so, but ‘since the criteria is, generally speaking, of importance and often of real significance in at least some PIP cases, an awareness of the criteria and a statement to the effect that it has been applied, is likely to be good practice in virtually all cases’ (paragraph 16).

Comment from CPAG

Although the remarks about alleged inconsistencies in a claimant’s evidence and regulation 4(2A) are obiter (and so not strictly binding), many will consider them uncontroversial and of general application. Also, however, many will think that the caveat regarding the need for natural justice in dealing with alleged inconsistencies will apply in many such cases, certainly wherever the inconsistency might reasonably be ascribed to confusion or illness.

Summary

The claimant was entitled to disability living allowance (DLA) at the highest rates of both the care and mobility components from 2008. In 2018, following a change in circumstances, the DWP decided to supersede the award on the basis that the claimant had ceased to be entitled to DLA at any rate from 9 September 2012, a year after he underwent an operation. A decision about a recoverable overpayment was also made regarding dates between September 2012 and May 2017. The claimant’s appeals against those decisions were rejected by the First-tier Tribunal.

Judge Poynter allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred in failing to consider that the 2018 decision was a decision on a supersession, rather than a simple decision on entitlement. That was important because there were rules both on the grounds for a supersession and on the effective dates for supersessions (ie, when they come into effect) that the tribunal had missed. That was important because, as the judge had observed in RH v SSWP (DLA) [2015] UKUT 453 (AAC) in the analogous context of revisions, the law did not allow the Secretary of State to reduce or remove a claimant’s entitlement retrospectively unless certain safeguards were observed.

The general rule, at section 10(5) of the Social Security Act 1998, is that the effective date of a supersession is the date on which it is made. So, for example, a supersession made in March 2018 becomes effective in March 2018, not before. That applied to DLA supersessions for a change in circumstance that was not advantageous to the claimant and related to the disability conditions. However, one of the exceptions to that general rule, set out in regulation 7(1)(b) and (2)(c)(ii) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 No.991, concerns decisions not advantageous to the claimant following a change of circumstance which the claimant did not notify but, under specified regulations, knew (or could reasonably have been expected to have known) should have been notified. If that is made out, then the effective date of supersession is the date the change ought to have been notified – ie, potentially years previously. However, the tribunal had failed to attend to the conditions in regulation 7 and so had failed to properly address how the claimant knew, or should have known, his responsibilities under the law. It had also failed to address the criteria about the date on which he ought to have notified the change. These were material errors, the judge considered, as ‘special rules about the effective date of certain superseding decisions in DLA cases are there to provide safeguards for claimants and it would not normally be right for the Upper Tribunal to diminish the protection of those safeguards by upholding the decision of a tribunal that had ignored them’, and ‘the reason that safeguards are necessary is that issues around whether a claimant’s condition has improved often involve matters of judgment or opinion rather than matters of primary fact’ (paragraphs 22–23).

Comment from CPAG

The decision should serve as a useful reminder of the safeguards not only to tribunals but also to decision makers. Although the regulation invoked by the judge concerns disability benefits other than personal independence payment (PIP), a similar (although not identically worded) safeguard applies to PIP (Part II of Schedule I to the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 No.381).

Summary

The claimant was refused personal independence payment (PIP). On appeal, some points were awarded by the tribunal, but not enough to bring about entitlement to benefit. That included the award of four points regarding the mobility component, on the basis of the tribunal’s finding that the claimant could walk for more than 50 metres but not more than 200 metres. On further appeal, the claimant argued via her representative that that was an error of law by being based on a mistake of fact. The claimant’s representative at the Upper Tribunal supplied evidence obtained via Google Maps (not submitted to the First-tier Tribunal by the claimant’s different representative there) that the tribunal had significantly mistaken the distance between the claimant’s home and the local shops and so misjudged her walking ability.

Judge Church allowed the claimant’s further appeal and remitted the case to a fresh tribunal. He accepted that the claimant’s new evidence demonstrated a material error of fact by the tribunal, which rendered its decision erroneous. The new Google Maps evidence could, in the context of the case, be admitted by the Upper Tribunal.

The judge first noted that rule 15(2)(a) of the Upper Tribunal Rules provides wide powers that the Upper Tribunal may ‘… (a) admit evidence whether or not – (i) the evidence would be admissible in a civil trial in the United Kingdom; or (ii) the evidence was available to a previous decision maker.’ Regarding the demonstration of a mistake of fact causing an error of law, he referred in particular to the decision in E and R v The Secretary of State for the Home Department [2004] QB 1044. There, Carnwath LJ had said: ‘…First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been “established”, in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal’s reasoning.’ Judge Church then noted that to show that a tribunal has made a mistake of fact, it will usually be necessary to present new evidence to the appellate authority. In Ladd v Marshall [1954] 1 WLR 1489, Denning LJ said at p1491: ‘In order to justify the reception of fresh evidence […], three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.’

Moving on to the case in hand, the judge held that, given broad discretion for the Upper Tribunal to admit evidence under rule 15 of the Upper Tribunal rules, the Ladd v Marshall principles ‘need not be applied strictly’, and the decision whether to admit the new evidence, ‘will be made on the basis of what the Upper Tribunal determines justice requires’ (paragraph 31). Although it might be argued that a ‘professional representative’ before the First-tier Tribunal could have obtained the Google Maps evidence, it should be remembered that: ‘the social security system is designed, in the words of Lady Hale in Gillies v Secretary of State for Work and Pensions [2006] UKHL 2 (reported as R(DLA) 5/06), to “ensure, so far as it can, that everyone receives what they are entitled to, neither more nor less”’ (paragraph 32). For this very reason, the Secretary of State supported the appeal, ‘having no interest in sustaining a decision on a claimant’s entitlement that was based on incomplete evidence’. The judge was therefore satisfied that, bearing all that in mind, the new evidence should be admitted, that all four tests in E and R were satisfied, that the tribunal’s factual error amounted to a material error of law (paragraphs 33–35).

Comment from CPAG

Given the wide discretion to admit new evidence in rule 15 of the Upper Tribunal rules and the focus on correct entitlement to be applied in social security appeals, the admission of new evidence to the Upper Tribunal should be possible in many cases. However, the weight and materiality of that new evidence will always be important in establishing whether there was an error of law. It would seem that a failure by a representative to supply the evidence to the First-tier Tribunal need not be fatal, but the particular facts may be significant here.

Summary

In 2018, the Secretary of State made a series of decisions removing the claimant’s entitlement to personal independence allowance (PIP) and before that to disability living allowance (DLA) going back to 2003, and raising recoverable overpayments amounting to nearly £100,000. On appeal, the First-tier Tribunal, at the outset, told the claimant that he could consider his entitlement even from before 2003 and (depending on the facts) potentially make an overpayment decision about that period too, and asked the claimant if he wanted to seek independent advice. After a short adjournment in which the claimant spoke to members of his family, he decided to proceed. The tribunal upheld the overpayment decisions and further held that he had been overpaid DLA since 1998.

Judge Wikeley allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred by breaching the rules of natural justice. On the facts of the case, said the judge, ‘as a matter of natural justice the tribunal, if it was contemplating that it might go back beyond 2003, should have imposed an adjournment to another day, irrespective of whether the claimant wanted “to get on with it”’ (paragraph 32). The judge emphasised that he was not deciding on whether or not there had in fact been overpayments, or whether or not they were recoverable, rather it was that the tribunal erred in not ordering an adjournment in order to give the claimant a proper opportunity to respond to the possibility of the tribunal making a significantly more adverse decision.

In so holding, the judge was influenced by a number of facts in the case. The tribunal had a ‘compelling’ set of facts and reasons for its decision, which included that the claimant had become a ‘fully self-caring’ student in 1998, regularly travelled to football matches, and been appointed to teaching positions in 2003. But it was also the case that the claimant was unrepresented, that it was ‘no trifling matter’ to extend the overpayment period back almost four years, and that the tribunal was aware that there was still the possibility of the claimant being prosecuted for fraud (paragraph 28). He agreed with the Secretary of State that the claimant had needed a proper chance to think about his own condition more than 20 years ago, and to get advice about his legal position – in particular the issue of whether his PIP award could properly be revised on the basis of misrepresentation (paragraphs 26–27, 34–37). The judge had reference to several authorities on the need for tribunals to observe natural justice and adopt a cautious approach in this context, including C15/08-09 (DLA), CDLA/884/2008 and BTC v SSWP (PIP) [2015] UKUT 155 (AAC).

Comment from CPAG

The judge was keen to set out his reasoning ‘as this type of case plainly continues to pose problems for tribunals in practice’ (paragraph 22). It is of a piece with C15/08-09 (DLA), CDLA/884/2008 and BTC v SSWP (PIP) [2015] UKUT 155 (AAC) in advocating a cautious approach to tribunals considering making a less favourable decision than the one under appeal. The finding of a need to impose an adjournment to another day is consistent with such an approach, but also stems from the particular facts of the case, including in particular an unrepresented client and a very serious extension of the overpayment period involved.

Summary

In this decision, the Upper Tribunal held that the two-year past presence test in DLA was unlawful, in that it discriminated between children who had been living in the UK and those who had been living abroad (and were thus unable to satisfy the test). The past presence test itself was not unlawful, but instead should be applied as one requiring presence for 26 weeks in the last 52 weeks, rather than 104 in the last 156. 

The claimants were parents of disabled children who were British nationals. The parents had lived and worked in the UK, but the children had been born abroad. On return to the UK, the children’s claims for DLA were both refused for failure of the past presence test. On appeal, it was argued for them that this was in breach of Article 14 (prohibition of discrimination) of the European Convention on Human Rights, and that the Upper Tribunal’s decision in FM v SSWP (DLA) [2017] UKUT 380 (AAC); [2018] PTSR 1036; [2019] AACR 8 was wrongly decided. The First-tier Tribunal rejected those arguments in both cases.

Judge Ward allowed the claimants’ further appeals and substituted a decision that the claimants were both entitled to DLA from the point that they satisfied the 26-week past presence test. The extension of the 26 weeks in the last 52-week period to one of 104 weeks in the last 156 involved an unjustified difference in treatment of the claimants (compared to children living in the UK throughout who would satisfy the increased period), and was therefore unlawful discrimination under the Article 14 read with Article 1 of Protocol 1 (right to property) of the Convention and was to be disapplied. The judge declined jurisdiction regarding the claimants’ separate argument that the increase in the period of the past presence test was in breach of the public sector equality duty. Although indicating a difference from FM, which held that the increased past presence test did not involve such a breach, adopting the obiter reasoning in A-K v SSWP (DLA) [2017] UKUT 420 (AAC); [2018] 1 WLR 2657, such arguments had to be raised on judicial review, which had not been done here.

Regarding discrimination, the judge held the different treatment of children coming from abroad could not be justified in the context of the increase of the past presence test. The aim of the increase, held the judge, was ‘driven by the need to save money…no coherent explanation has been put forward for extending the past presence test from six months to two years (the rationale put forward, somewhat tentatively, for a two-year period had previously been put forward as justifying the six-month period) and the lack of such explanation supports the view that the more onerous condition was set to save money by reducing the number of those who could qualify, by making them wait’ (paragraph 140). Saving money could be a legitimate aim but, applying R (DA) v SSWP [2019] UKSC 21, the measure could be discriminatory if ‘manifestly without reasonable foundation’, and deciding that involved a ‘proactive’ test of reasonableness (paragraph 143). Although children aged under three were exempt from the increase in the past presence test, those aged three to 16 were not, and the judge held that in the money-saving aim: ‘there was a lack of consideration of the interests of children aged three to 16 …These were complex and substantial, including by way of the knock-on effects on other benefits and the impact on the family in dealing with disability with a reduced level of assistance’. This lack of consideration was a breach of Article 3 of the United Nations Convention on the Rights of the Child, which although not formally binding in the UK contributed to the judge’s conclusion that the Secretary of State had failed to show that the increase was proportionate to the aim (paragraph 158). The result was that the increase in the past presence test to 156 weeks in the last 104 was to be disapplied, leaving intact the pre-existing period of 26 weeks in the last 52.

Summary

The claimant suffered from alcohol dependency which affected his functioning in various ways, both physically and mentally. His application for PIP was refused. That decision was upheld by the First-tier Tribunal (FtT), which although finding the claimant to be a credible witness who had alcohol dependency, nevertheless also refused to accept his evidence on a number of points, and considered his drinking to be a ‘lifestyle choice.’

Judge Clough allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred in particular in making seemingly contradictory findings and not explaining how it resolved the case. ‘It is fair to say,’ she said, ‘that in the absence of reasons for the conclusions reached by the FtT in this case, particularly the contradiction of the appellant’s “credible” evidence on the matter, as well as a finding of him suffering from alcohol misuse but that his limited functionality was due to a “lifestyle choice”, it is difficult to comprehend how this decision was reached. By failing to adequately reason its findings in these regards, the FtT have materially erred in law in this case’ (paragraph 29).

The judge went on to review how alcohol dependency may affect functioning and set out some guidance for tribunals in assessing PIP entitlement in such cases. This included noting that the relevant medical term is now ‘alcohol use disorder’ (AUD), and that essential caselaw is R(DLA) 6/06 and SD v SSWP (PIP) [2017] UKUT 310 (AAC). More widely, said the judge, it was ‘ imperative that the FtT do not make finding that the appellant is alcohol dependent, and [my emphasis] that the consumption of alcohol is a “lifestyle choice” as was the case in the current appeal. These two findings are oxymoronic in nature. To say that an appellant has alcohol misuse, and that his/her alcohol consumption is a lifestyle choice, is akin to saying that the appellant has arthritis in his knees, and this arthritis, with associated pain in his knees, is a lifestyle choice: it does not make sense’ (paragraph 46).

In summary, tribunals were required to undertake a careful process of fact finding. The judge said: ‘Alcohol use disorder is a complex mental health condition, which can have very serious implications for a patient. It may lead to secondary and/or possibly unconnected medical conditions, and will have mental and/or physical impacts on an appellant. It is these impacts which may affect the appellant’s functionality in general and in relation to each of the PIP activities and descriptors. When a tribunal makes a determination of eligibility for an alcohol dependent appellant, it must be sure to very carefully consider “reliability” under regulation 4 of the PIP Regulations 2013, as well as the 50 per cent rule under regulation 7 of the PIP Regulations 2013. Both physical and mental impacts must be taken into account, and the evidence must be adequately, yet respectfully, tested before it can be said to be credible and reliable’ (paragraph 76).

Comment from CPAG

This decision does not break new legal ground regarding alcohol dependency and PIP (in essence the approach in R(DLA) 6/06 and in SD v SSWP is approved). However, it does provide a comprehensive review of the most important authority and the detailed fact finding that needs to be undertaken by tribunals in such cases.

Summary

The claimant was refused UC on the basis that she did not satisfy the right to reside test. That decision was upheld by the First-tier Tribunal. In the event, it was agreed by all parties at the Upper Tribunal that that was wrong and that the claimant did in fact have a right to reside and was entitled to UC.

However, in the course of its proceedings the First-tier Tribunal had refused to make an order requiring the DWP to provide information regarding the claimant’s estranged husband. That was despite the fact that the tribunal was made aware that the claimant was separated following domestic abuse and that there was a non-molestation order in place against the husband. The District Tribunal Judge in the First-tier Tribunal insisted that even then the claimant needed to make contact with her husband through solicitors. In the Upper Tribunal, Judge Ward did not have to formally decide whether the tribunal was in error in this regard. But he did provide obiter (non-binding) comment, in particular regarding the First-tier Tribunal’s (‘FTT’) powers to make a relevant order under rule 16 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, SI No.2685 (‘the FTT’s Rules’). The judge said:

‘As to the the FTT’s apparent reluctance to make the order sought, while it is not for me to second-guess their approach to matters of case management, it does seem to me that, speaking generally, in the context of domestic violence and a non-molestation injunction there may realistically be limitations on what a party can be expected to achieve on their own initiative, even with a degree of support, and that in such circumstances the FTT’s power to make an order under rule 16 of the FTT’s Rules may be a useful tool for enabling DWP’s data protection issues to be overcome and enabling justice to be done. I do understand that intervention by the FTT should not be a first resort and advisers seeking such orders may be well-advised to make clear in a stand-alone application not only what they are seeking and why, but what steps have been taken, unsuccessfully, to date’ (paragraph 8).

Comment from CPAG

Though formally not binding, Judge Ward’s comments provide a clear steer to tribunals that they should be aware of their powers under rule 16 and not simply expect claimants to exhaust all routes themselves. However, neither should rule 16 interventions simply a first resort, and advisers should set out their position clearly when applying to the tribunal for such an intervention.

Summary

The claimant was entitled to income support (IS) on the basis that she was a carer for her friend, who was entitled to the care component of disability living allowance (DLA) at either the middle or the higher rate. In July 2018, on transfer to personal independence payment (PIP), the DLA ceased and no award of PIP daily living component was made. On 15 August 2018, the claimant’s entitlement to IS was ended (from September, after the statutory ‘run-on’ period). In July 2019, the claimant’s friend was successful in her appeal against the refusal to award the daily living component of PIP, so that she was awarded the standard rate fully backdated to July 2018. Meanwhile, the claimant had not claimed UC but had relied on child tax credits and child benefit. The claimant asked for reinstatement of her IS both in July 2019 and again in September 2019 after she was re-awarded carer’s allowance (CA), backdated to July 2018. On both occasions the response from the DWP was that she must claim UC instead. Eventually, the claimant got representation and in December 2019 explicitly requested a revision of the August 2018 termination of her IS. Following a refusal to revise, the matter came before a First-tier Tribunal who refused the appeal, on the basis that the subsequent award of PIP and CA were changes in circumstance after the termination and could not be taken into account.

Judge Rowland allowed the claimant’s appeal and substituted a decision that the claimant’s entitlement to IS was reinstated from August 2018 – ie, from the date it had been terminated by the Department. That the claimant had requested her entitlement to be reinstated in July and September 2019 meant that potential problems regarding absolute time limits for an ‘any grounds’ revision did not arise. He agreed with the claimant’s representative that the awarding of the standard rate of the daily living component of PIP as applied on appeal meant that the termination of the IS fell to be revised. It was not, as had been argued by the Secretary of State, a change of circumstance after the date of the termination which therefore (per section 12 Social Security Act 1998) could not be taken into account. Rather than being a change of circumstance, the award of PIP back to July 2018 was ‘declaratory of a state of affairs that is to be taken as always having existed’ throughout the period of entitlement. So although the Department’s decision terminating IS ‘appeared to be correct’ when it was made, the subsequent award of the PIP daily living component and the related re-award of CA actually showed the decision to ‘have been wrong when it was made’ (paragraph 26). Therefore the decision did indeed fall to be revised. Further: ‘It follows that the Secretary of State was wrong to advise the claimant on 9 July 2019 and 6 September 2019 that she could claim universal credit, without also advising her that she could instead make a late (but not irredeemably late) application for revision…of the decision of 15 August 2018 ending her entitlement to income support’ (paragraph 31).

Expanding on his reasoning, the judge said: ‘Insofar as a decision is concerned with entitlement, that must be the correct approach. It was made clear by the Court of Appeal in Reilly v Secretary of State for Work and Pensions [2016] EWCA Civ 413; [2017] Q.B. 257; [2017] AACR 14 at [137] that this is the way that retrospective legislation works and it seems to me that a retrospective decision as to entitlement made by either the Secretary of State or a tribunal must operate in the same way. Indeed, this must apply not only to decisions as to a claimant’s underlying entitlement but also to decisions as to whether a benefit is “payable”, which is the term used where a claimant has not only an underlying “entitlement” but also an entitlement to receive payments’ (paragraph 27). Although the relevant IS legislation regarding entitlement for carers (at Schedule IB paragraph 4(a)(i) and (b) of the Income Support (General) Regulations 1987, SI No.1967) refers to being ‘in receipt’ of the benefit required, it was right here to treat that as equivalent to ‘payable’. Otherwise, there would have been no way of paying arrears of IS to someone in the claimant’s position, even before the introduction of UC. That would have been ‘plainly unfair’, and the judge concluded: ‘I am therefore satisfied that the words “in receipt of” in paragraph 4 of Schedule 1 to the 1987 Income Support Regulations are not to be given their literal meaning but are to be read as “entitled to receive payments of”. Such entitlement may be conferred by a decision made retrospectively’ (paragraph 30).

Comment from CPAG

The principle established here that a later backdated entitlement decision is not change of circumstance but rather is ‘declaratory of a state of affairs that has always existed’ might apply on other facts.