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Decision in brief

Claimant last worked on 21 July 2020 and the claim for UC was made on 24 October 2020 (ie, just over three months later) – ‘undue delay’ test regarding retained worker status and gaps between the end of work and contacting the job centre to register as a jobseeker, established in SSWP v MK [2013] UKUT 163 and subsequent decisions – on the facts, claimant took no steps prior to 24 October to notify the DWP, and there was no evidence of job search in that period – lack of DWP monitoring of that is irrelevant – in particular considering the three-month delay, there was ‘undue delay’ and claimant had therefore not retained worker status

Summary

In this decision, the Court of Appeal dismissed the appeal of the Secretary of State against the previous decision of the Upper Tribunal (SSWP v AT (Aire Centre and IMA intervening) [2022] UKUT 330 (AAC)). The Upper Tribunal had held that the right to ‘dignity’ under Article 1 of the Charter of Fundamental Rights of the European Union (‘the Charter’) continued, after Brexit, to apply in certain circumstances, so that a refusal of benefit (in this case, universal credit (UC)) was capable of breaching the right of the claimant to live in ‘dignified conditions’. The claimant was a Romanian national whose only right to reside was pre-settled, had suffered trauma and was living in a refuge, and had only child benefit as income. 

The Secretary of State challenged the Upper Tribunal decision essentially on the basis that: (1) the Charter simply no longer applied following the transition period after Brexit; (2) even if it did, there was a sufficient defence that ‘in principle’ the UK’s existing law was capable of providing sufficient support, even if it did not in practice, and that in any event it was the responsibility of local authorities to provide such support so that any alleged breach must be enforced against them on judicial review and not against the Secretary of State for Work and Pensions; and (3) that in any event the only fundamental right that could apply was under Article 3 of the European Convention on Human Rights (ECHR) (on degrading and inhuman treatment), with the facts in this case coming nowhere near to breaching that. 

The Court of Appeal unanimously rejected the Secretary of State’s arguments and dismissed his appeal. Giving the lead decision, Lord Justice Green held that, on a ‘normal interpretation’ of the terms of the Withdrawal Agreement between the UK and the European Union, the Charter continued to apply, albeit within limits (paragraph 82). The Upper Tribunal had correctly identified that the Court of Justice of the European Union (CJEU) in Case C-709/20 CG v The Department for Communities in Northern Ireland EU:C:2021:602 (15 July 2021) had applied Charter rights to someone who had rights under the Agreement. That included that, when refused one form of support, the host state must determine whether the person was in need of other support to ensure their dignity and make their residence viable (paragraph 91); and that right was a ‘continuing’ right and not one (as argued by the Secretary of State) that ended with the close of the ‘transition period’ on 1 January 2021 (paragraphs 96–97). The Charter right to dignity in Article 1 was not co-extensive with Article 3 of the ECHR, despite the possibility of some overlap, and ‘the benchmark’ for determining whether there was a breach of Article 1 was that taken by the CJEU in CG (paragraph 113). 

The Secretary of State’s ‘in principle’ argument (ie, that whether other support was actually available to the claimant was irrelevant) was inconsistent with the decision of the CJEU in CG, with Article 4 of the Withdrawal Agreement and with principles governing how fundamental rights were to be protected. Also, the UK system as presented by the Secretary of State did not seem ‘even in principle’ to be capable of protecting a person such as the claimant (paragraph 123). For example, a person only with pre-settled status was ineligible for housing and homelessness support and child benefit (the latter of which seemed to have been paid in error in this case). Although a claimant with a child might theoretically be entitled to local authority support under section 17 of the Children Act 1989, the Upper Tribunal had correctly held that whether that did indeed prevent a breach of the claimant’s Charter rights depended on the evidence in the individual case. The Court of Appeal went on to conclude that the arrangements under the Children Act were ‘subject to serious legal and financial constraints’ and that, on the evidence, allocation of responsibility to local authorities did not meet the test for meeting the continuing duty to ensure the claimant’s Charter rights were effective (paragraph 169). The Upper Tribunal had also been right to say that an ‘individualised assessment’ of the claimant’s position was required in every case and that was mandated by the CJEU decision in CJ. That court had referred to a need to check that the claimant and the children for which they are responsible are not exposed, by the refusal of support, to ‘an actual and current risk’ of violation of their Charter rights. Here, ‘risk’ involved an element of forward looking, so that it did not only arise when it actually occurred, and other state support was only to be taken into account ‘if they are available there and then’ (paragraphs 153–156). 

Comment from CPAG

In effect, this decision leaves the decision of the Upper Tribunal in this case intact, and consequently the legal position of claimants with rights under the Charter unchanged. See the article in Bulletin 297, p7 for more.

For further details see our test case update: Destitute EU nationals with PSS can rely on EU Charter of Fundamental Rights to obtain universal credit.

Summary

The main issue in this judicial review case was the lawfulness of the requirement, for bereavement support payment (BSP), that the claimant’s deceased spouse had paid sufficient class 1 or class 2 national insurance contributions, given that due to disablement she had been unable to work for her entire life. The claimant simply asked the judge to follow and apply the decision of the Northern Ireland Court of Appeal (NICA) in O’Donnell v Department for Communities [2020] NICA 36 (10 August 2020). There it was held that the requirement was in breach of human rights law as discrimination on grounds of disability, and held that the relevant Northern Ireland legislation must be read so as to deem the contribution condition to have been met in such circumstances. That had not been appealed, and post-O’Donnell official guidance in Northern Ireland instructed decision makers to consider whether the deceased spouse had been unable to work throughout her/his life due to disability. The Secretary of State argued that O’Donnell should be distinguished and was in any case wrongly decided. Mr Justice Kerr allowed the claimant’s application so as to make the same result as in O’Donnell – ie, that in such cases the national insurance condition must be deemed to be satisfied.

In the present case, the claimant’s late spouse had suffered from severe disability from birth and had never been able to undertake paid employment. The claimant was refused BSP on the grounds that his late spouse did not satisfy the requirement, in section 31 of the Pensions Act 2014, to have paid sufficient national insurance contributions. Neither party argued that O’Donnell was binding authority in Great Britain. However, Mr Justice Kerr did consider that: ‘Human rights should if possible have the same content throughout the UK. If O’Donnell is not distinguishable, I would not depart from it unless persuaded that is clearly wrong, which I would find only with great diffidence’ (paragraph 47).

Although the judge accepted that he did have to consider the arguments afresh, he held that (contrary to the Secretary of State’s arguments) O’Donnell was neither distinguishable nor clearly wrong. He agreed with the NICA that for the purposes of the discrimination rule in Article 14 of the European Convention on Human Rights, the claimant had an ‘other status’ – ie, ‘the spouse of a deceased person who was severely disabled so that she was unable to work and therefore unable to pay class 1 or class 2 national insurance contributions’ (paragraph 80). He also agreed with the NICA that the discrimination in this case was the failure to treat the claimant differently from those where the late spouse had been able to work. That left the issue of whether the treatment of the claimant was nevertheless justified. It was not, for the same reasons as given in O’Donnell, namely that a ‘less intrusive measure’ could have been adopted without compromising the objective of the rule, and that the ‘severity of the measure’ outweighed the importance of the objective (paragraphs 86–88). There was nothing in the fact that the NICA was considering subordinate legislation, namely the Pensions Act (Northern Ireland) 2015: it was still an Act of the Northern Ireland Assembly and any effect of its being subordinate was ‘theoretical rather than real’ (paragraph 98). In conclusion, the judge said: ‘The NICA’s decision was not appealed. If it is departed from, that is likely to be by a higher court than mine. I find that the claim succeeds and I will make a declaration in the same words as the declaration made in O’Donnell…’ (paragraph 100).

Note: the Secretary of State appealed to the Court of Appeal. For the Court of Appeal's decision, see Jwanczuk v Secretary of State for Work and Pensions [2023] EWCA Civ 1156.

Summary

In this decision, the Court of Appeal unanimously held that the child element was not a ‘family benefit’ for the purpose of the main European co-ordination rules in EC Regulation 883/04. In so holding, the court in effect upheld the previous decision in this case by the Upper Tribunal in SSWP v MS [2023] UKUT 44. 

The claimant was a Slovakian national living and working in the UK. Her son lived in Slovakia. She was refused the child element of universal credit (UC) for him (as she did not satisfy the ‘main responsibility’ test in the domestic UC rules). She argued that the child element was severable from UC (ie, could be treated separately), so as to be regarded in itself as a ‘family benefit’ and therefore be payable by virtue of the co-ordination rules in EC Regulation 883/04. She also argued that, if unable to accept that, the court should make a reference to the Court of Justice of the European Union (CJEU). 

The court rejected that argument. The child element was not severable from UC and was not to be treated as a ‘family benefit’ for the co-ordination rule. Giving the lead judgment, Lord Justice Green’s starting premise was that ‘...properly construed by reference to its purpose and context Regulation 883/2004 does not incorporate a test of severance’ (paragraph 37). 

After reviewing the relevant caselaw, the judge concluded: 

‘... I do not detect in the jurisprudence of the CJEU either the existence of a principle of severance, or even its earliest germs. To the contrary, the caselaw is consistent with the proper inferences to be drawn from the structure and policy of Regulation 883/2004 which is that the Regulation does not undermine the essential freedom of member states to shape their own social security systems and that generalised, composite, benefits schemes are outside the scope of the regulation. In my judgment the position is sufficiently clear for there to be no need for a reference to be made to the CJEU under Article 158 of the Withdrawal Agreement’ (paragraph 52).

Summary

In this decision, the Court of Appeal upheld the challenge by the claimants to the decision in this case of the High Court (see R (Fratila and Tanase) v Secretary of State for Work and Pensions [2020] EWHC 998 (Admin)). In a majority decision, the Court of Appeal held that regulations excluding ‘pre-settled status’ as a valid right to reside for benefit purposes were unlawful, and quashed those regulations.

The claimants were Romanian nationals who came to the UK in 2014 and 2019 respectively. In 2019, each was granted limited leave to remain in the UK under the European Union (EU) Settlement Scheme (also known as ‘pre-settled status’). Both claimants applied for universal credit (UC) but were refused on the grounds that their pre-settled status was not a sufficient right to reside to enable them to access means-tested benefits, as a result of amendments made by the Social Security (Income-related Benefits) (Updating and Amendment) (EU Exit) Regulations 2019.

The claimants argued that the exclusion of the pre-settled status right to reside was is in breach of the EU right not to be discriminated against on the ground of nationality in comparison with UK nationals, as at Article 18 of the Treaty on the Functioning of the European Union. That argument had been rejected by the High Court, on the basis that any discrimination against them was indirect and was justified. Departing from that, the court held that the regulations were unlawful and ordered that they be quashed. Firstly (and contrary to the argument of the Secretary of State), once a claimant had a right to reside under domestic law (as here, via the EU Settlement Scheme), then discrimination in breach of Article 18 was not permissible, and the separate European rules conferring right to reside (Directive 2004/38/EC, which did not provide the claimants with a right to reside) were not a complete set of rules for benefit entitlement.

Secondly, discrimination under Article 18, once established, was unlawful and (as direct discrimination) was not capable of justification. Article 18 was breached here as the regulations introduced discrimination on the basis of nationality, in that European nationals who had been granted a right to reside under domestic law were refused benefit on right to reside grounds. In the lead decision, Lord Justice McCombe, drawing on a line of authority from the Court of Justice of the European Union (CJEU), said: ‘Accordingly, by direct application of the CJEU decisions, as interpreted in our own courts, a discrimination of the present type is prohibited by EU law and the question of justification does not arise’ (paragraph 71 ). Lord Justice Dingemans, in the minority, considered the discrimination to be indirect and therefore capable of justification, and to be justified.

The Order of the court quashes both the legislation which provides that having ‘pre-settled status’ is not a sufficient right to reside for the purposing of accessing means-tested benefits and the decisions of the Secretary of State for Work and Pensions refusing the claimants UC. However, the court granted a short stay to 26 February 2021 (during which time the Secretary of State did not have to implement the judgment.)

Comment from CPAG

The Secretary of State has appealed to the Supreme Court, and also requested a further stay. Despite Brexit, the effect of the quashing of the legislation is that, once the stay is lifted (and subject to any further appeal), anyone with pre-settled status satisfies the ‘right to reside’ test for access to means-tested benefits. See also the legal test cases pages on CPAG’s website. 

For the Supreme Court's decision, see our caselaw summary Fratila and another v Secretary of State for Work and Pensions [2021] UKSC 53.

Summary

The Supreme Court unanimously held that amendment regulations providing that pre-settled status under the European Union (EU) Settlement Scheme was excluded from conferring an effective right to reside for entitlement to universal credit (UC) were not unlawful on grounds of discrimination under European law. In so holding, it allowed the appeal of the Secretary of State against the contrary decision of the Court of Appeal in this case (Fratila and Tanase v Secretary of State for Work and Pensions and another [2020] EWCA Civ 1741, 18 December 2020).

The claimants were Romanian nationals whose only right to reside in the UK was by virtue of their pre-settled status, and had been refused UC. The Court of Appeal had accepted their argument that the exclusion of that right to reside in the context of entitlement to UC was discrimination on grounds of nationality, in breach of Article 18 of the Treaty on the Functioning of the European Union (TFEU), and quashed the amendment regulations introducing that exclusion. The Supreme Court reversed that, in the light of the decision of the Court of Justice of the European Union (CJEU) in CG v Department for Communities in Northern Ireland, Case C-709/20, reported as [2021] WLR 5919 (15 July 2021). That in effect held, in a separate case but with identical arguments, that in such a case whether the EU citizen had been subject to discrimination on grounds of nationality fell to be assessed not under Article 18 of the TFEU, but under Article 24 of the ‘Residence Directive’ (2004/38/EC). For that to apply, the claimant had first to reside in compliance with the Directive – ie, to have a right to reside in the first place.

In the Supreme Court, the parties agreed that (by virtue of Articles 86(2) and 89(1) of the Withdrawal Agreement, which has domestic effect by virtue of section 7A of the European Union (Withdrawal) Act 2018), the judgment of the CJEU in CG ‘will have binding force in its entirety on and in the United Kingdom’ (paragraph 8). Further, it was a common ground that the claimants did not reside in the UK in accordance with the Directive at the time of their claims for UC – ie, they did not have a right to reside under the Directive. ‘They cannot therefore,’ said Lord Lloyd-Jones in the judgment for the court, ‘rely on the EU principle of non-discrimination to claim a right to equal treatment in respect of entitlement to universal credit’ (paragraph 12).

The court refused to consider a new argument for the claimants, submitted in the light of the decision of the CJEU in CG, that before refusing entitlement the Secretary of State was obliged to consider whether the claimants’ rights under the Charter of Fundamental Rights of the European Union (including the right to live in ‘dignified conditions’) would be breached. Lord Lloyd-Jones said: ‘While an appellate court will always be cautious before permitting a new point to be raised for the first time on appeal, it would clearly be inappropriate to do so where, as in the present proceedings, the new case would raise issues of fact which have not been determined… I would add that while the CJEU in CG drew attention to the possible relevance of the Charter to the particular circumstances of that case, it is immediately apparent from paragraph 92 of the judgment of the CJEU that CG’s situation was materially different from that of the respondents to the present appeal’ (paragraph 14)

Comment from CPAG

The court held, conclusively as domestic authority, that the claimants had not been discriminated against under the TFEU or the Directive. However, arguments based on the reference in CG to rights under the Charter of Fundamental Rights of the European Union and on discrimination under the Human Rights Act remain possible, although as yet untested. See the article in Bulletin 286, p8.

Summary

ln R (Rutherford and another) v Secretary of State for Work and Pensions [2016] EWCA Civ 29, the Court of Appeal had previously held that it was a breach of the claimant's human rights (via unlawful discrimination on grounds of disability) not to provide for a bedroom required for an overnight carer of a disabled child. Although regulation 813 provided for an extra bedroom for an overnight carer of a disabled adult, it did not extend to a child requiring overnight care. The Supreme Court held, in R (Rutherford and another) v Secretary of State for Work and Pensions, that there was no reasonable justification for the difference in treatment, there being no 'sensible reason' for distinguishing between adults and children in need of overnight care (paragraph 46). Setting out the lead decision, Lord Toulson added that there was 'an ironic and inexplicable inconsistency' in the approach of the Secretary of State, in that he referred to the best interests of the child in one context, but then provided in the present context that disabled children were treated less favourably. The Secretary of State's appeal against the decision of the Court of Appeal was therefore dismissed (paragraphs 47-49).

In R (Carmichael and Rourke) v Secretary of State for Work and Pensions (previously part of the Court of Appeal's decision in R (MA and others) [2014] EWCA Civ 13; [2014] PTSR 584 -Bulletin 239, p10), the claimants were adult partners who could not share a bedroom because of disability. The problem here was that although regulation 813 provided that disabled children were not expected to share a bedroom, that did not extend to adults clearly unable to share because of disability. The Court of Appeal had previously dismissed the claimant's application. The Supreme Court allowed the claimants' further appeal (thus finding that the appellants were unlawfully discriminated against), applying similar reasoning to that in the Rutherford decision (paragraph 46).

The other claimants in the case formerly known as MA and others were dealt with by the Court in R (Daly and others) v Secretary of State for Work and Pensions. The circumstances of the claimants were various, but all involved disability. However, the Supreme Court distinguished these cases from those in the Rutherford and Carmichael cases in that in the latter cases, unlike in these cases; there was a 'transparent medical need' for an extra bedroom (paragraph 42). In Daly and others, the Supreme Court dismissed all the claimants' further appeals. The Secretary of State's approach was not to provide a general exemption for disability, but to rely on the discretionary housing payment (DHP) scheme to allow coverage of full rent in individual cases. The correct legal test was whether that approach was 'manifestly without reasonable foundation' (paragraphs 28-38). It was reasonable for there to be no 'blanket' exemption for disability (paragraph 41), and in the individual cases, in which the Court did not see an 'objective' need for an extra bedroom, it was 'not unreasonable' for full coverage to be considered under the DHP scheme (paragraphs 50-55).

The Court took a similar approach in R (A) v Secretary of State for Work and Pensions, this time regarding a woman living in a 'sanctuary scheme' home. The Court of Appeal had held that the bedroom tax rules unlawfully discriminated against the claimant on grounds of sex. Allowing the Secretary of State's appeal, Lord Toulson accepted the argument that the individual facts in such cases would vary, with consequently varying results regarding whether claimants 'really needed to stay in that particular property', even though sanctuary scheme accommodation was required (paragraphs 59-64). Ultimately, the reliance placed by the Secretary of State on individual evaluation for payment of DHPs was not 'manifestly without reasonable foundation' (paragraph 66). Consequently the application of the bedroom tax involved no unlawful discrimination. However both Lady Hale and Lord Carnwath dissented from the judgment in this particular case.

Comment from CPAG

The finding of unlawful discrimination against disabled children needing overnight care and adult partners unable to share because of disability is very welcome, although the failure to regard women needing sanctuary accommodation as needing to remain in their accommodation is disappointing in equal measure (it is understood that the claimant in A is applying for leave to appeal to the European Court of Human Rights). Claimants who could benefit from the decision should apply immediately to their local authority for the decision to be applied to them. However, at time of writing in Housing Benefit Urgent Bulletin HB U3/2016, local authorities had been advised by the DWP that as the regulations were not actually struck down, the rules should continue to be applied until the DWP gets round to changing them. In CPAG's view this is wrong, as the decision clearly finds the regulations in breach of human rights requirements.

Summary

In this decision the Court of Appeal rejected a challenge to the decision of the High Court in R (MA and others) v Secretary of State for Work and Pensions [2013] EWHC 2213 (QB). The result is that the lawfulness of the 'bedroom tax' as applied to disabled people has again by upheld by the courts.

The claimants were a number of disabled adults with varying circumstances, but who had been subject to the bedroom tax. The issues considered by the Court were: (1) whether the bedroom tax constituted unlawful discrimination against disabled people, as in breach of Article 14 of the European Convention on Human Rights ('the Convention) read with Article 1 of Protocol 1 (protection of property; and (2) whether the bedroom tax was made in breach of the Secretary of State's public sector equality duty under section 149 of the Equality Act 2010 to have 'due regard' to the need to eliminate discrimination and advance equality of opportunity for disabled people. The Court unanimously held that the bedroom tax breached neither Article 14 or the public sector equality duty.

Regarding Article 14, the Court held that the alleged discrimination was indirect discrimination (or so-called Thlimennos discrimination, the distinction between the two was unnecessary here) (paragraph 4 7) and so was capable of justification. The relevant test for deciding if it was not justified was if the measure is 'manifestly without reasonable foundation' (paragraph 49). Giving the lead decision, the Master of the Rolls said that, looked at in isolation, the relevant rule (regulation B 13 of the Housing Benefit Regulations 2006) plainly discriminates against disabled people who have a need for an additional bedroom by reason of their disability (paragraph 39). But it was not realistic to look at regulation 813 in isolation; it had to be considered as part of a 'package for dealing with the problem of under-occupation', that included certain exemptions from the bedroom tax and reliance on discretionary housing payments (DHPs) for others (paragraph 40). Looked at in this way, and taking into account the Secretary of State's stated reasons for the bedroom tax, the discrimination was justified (and so not unlawful) (paragraph 71). The Court accepted that the category all disabled people who needed an extra bedroom by reason of their disability 'may be relatively large, not always easy to recognise, may be open to abuse and (in some cases at least) will require monitoring'. Also the DHP fund has been increased and the relevant guidance altered (paragraph 72). The Secretary of State was entitled to the view that it was not practical to add such a category of claimant to the exemptions from the bedroom tax, and the Court did not accept that exempting disabled children who needed an extra room but not disabled adults who needed an extra room was irrational or without objective or reasonable justification - the best interests of children were a primary consideration (paragraphs 73-79).

On the public sector equality duty, it was established that the principal question was not whether the decision was justifiable, but whether in the process leading to the making of the decision, the decision maker had 'due regard' to the relevant considerations (paragraph 83). The Court considered that the history of the evolution of the bedroom tax policy showed that the Secretary of State had 'well understood that there are some disabled persons who, by reason of their disabilities, have a need for more space than is deemed to be required by their non-disabled peers', and that the scheme had been considered 'in great detail' by the Secretary of State and by Parliament. Also, the adequacy of the DHP scheme had been considered and kept under review. The process did not breach the Secretary of State's public sector equality duty (paragraph 92).

Comment from CPAG

The Court's reasoning makes clear its view that the position of disabled adults who require an extra bedroom is not to be equated with that of disabled children who need an extra bedroom (provision regarding which is now made in regulation 813). At time of writing, a further appeal to the Supreme Court, was under consideration.

Note: for the Supreme Court's decision, see R (MA and others, A, Rutherford) v Secretary of State for Work and Pensions [2016] UKSC 58.

Summary

In this decision, the Court of Appeal ruled that the ‘bedroom tax’ unlawfully discriminates against female victims of domestic violence living in specially adapted accommodation, and against disabled children who require an overnight carer. However, the Secretary of State has appealed to the Supreme Court and another decision is now awaited.

The arguments concerned the lawfulness of the ‘bedroom tax’ rule (referred to by the government as the ‘removal of the spare room subsidy’) at regulation B13 of the Housing Benefit Regulations 2006, SI No.213. In particular, the Court considered whether there was unlawful discrimination in breach of Article 14 of the European Convention on Human Rights (ECHR), even in cases where discretionary housing payments (DHPs) were available to the claimants. The Court had to decide whether to apply the decision in Burnip v Birmingham City Council [2012] EWCA Civ 629, [2013] PTSR 117, which had found unlawful discrimination (despite the availability of DHPs) against a ‘very limited’ category of disabled claimants, or the decision of the Court in R (MA and others) v Secretary of State for Work and Pensions [2014] EWCA Civ 13, [2014] PTSR 584, which had held that the availability of DHPs justified the discrimination against a ‘broader category’ of disabled persons (decisions described at paragraphs 32–38).

The Lord Chief Justice, Lord Tomlinson and Lord Justice Vos unanimously held that the discrimination against the claimants could not be justified. In the domestic violence case, ‘A’ was a woman who was a victim of domestic violence, living with her 11-year-old son. They required a third bedroom adapted as a ‘panic space’ under Sanctuary Scheme arrangements, but under the ‘bedroom tax’ their housing benefit was restricted to that of a two-bedroom property. The Court held that claimants like A were ‘few in number and capable of easy recognition’ and that regulation B13 could be amended to ‘identify them as a discernible and certain class’. Therefore, the Court considered itself bound by Burnip, and not by MA. There was no objective and reasonable justification for the discrimination against female victims of domestic violence, and Article 14 was breached (paragraphs 47–56).

In the Rutherford case, grandparents caring for their severely disabled grandson required a third bedroom to accommodate an overnight carer for their grandson. However, the bedroom tax rules allow an extra bedroom for an overnight carer only of a disabled adult, not a disabled child. The Court held that the Secretary of State should have had specific regard to the best interests of children, such as the disabled grandson in this case, when devising the regulations (paragraph 72). The attempted justification of the discrimination against disabled children (compared to disabled adults) by the Secretary of State ‘did not address how the distinction could be justified by reference to the best interests of the child as a primary consideration’. The Court accepted that DHPs were intended to provide the money lost in housing benefit, but were not persuaded that that this ‘justifies the different treatment of children and adults in respect of the same essential need within the same Regulation…’ (paragraph 73). Therefore, the claimants in this case succeeded for the same reasons as in the case of A (paragraph 74).

Note from CPAG

The Court granted the Secretary of State permission to appeal to the Supreme Court. The Supreme Court heard the appeals, together with the appeal against the decision in MA, on 29 February – 2 March. For the Supreme Court's decision, see R (MA and others, A, Rutherford) v Secretary of State for Work and Pensions [2016] UKSC 58.

Summary

The claimant had epilepsy and suffered from seizures. Her application for personal independence payment (PIP) was refused on 5 July 2019, a decision that was upheld on mandatory reconsideration in October 2019; she appealed to the First-tier Tribunal on 24 August 2021. Pending the tribunal hearing, in November 2020 she suffered a further seizure, which resulted in the withdrawal of her driving licence. She had another seizure in January 2021. The tribunal was aware of the 2020 and 2021 seizures but said that they ‘did not affect the assessment of risk at the time of the decision’. In essence, they were considered simply to be changes of circumstance which post-dated the decision under appeal and so could not be considered. 

Judge Fitzpatrick allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred in incorrectly applying the rule in section 12(8)(b) of the Social Security Act 1998, which provides that a tribunal ‘shall not take into account any circumstances not obtaining at the time when the decision appealed against was made’. Although that had to be applied in any case, in the present case the tribunal had neglected to consider whether the 2020 and 2021 seizures nevertheless provided evidence about the claimant’s circumstances at the time of the decision under appeal. The ‘blanket rejection’ of that evidence by the tribunal (ie, without further consideration and explanation) was an error of law (paragraph 23). 

In so holding, the judge applied existing authority on this point. In R(DLA) 2/01 Commissioner (as he then was) Jacobs had said at paragraph 9: 

‘...it is the time to which the evidence relates that is significant, not the date when the evidence was written or given...If it relates to the relevant period, it is admissible. If it relates to a later time, it is not admissible.’ 

That was followed by Judge Ward in JS v SSWP [2011] UKUT 243, concluding that evidence coming into existence after the date of the decision could be relied on so far as relevant to show the circumstances pertaining at the date of the decision.

Decision in brief

Application of earnings rule at regulation 8 of the Social Security Benefit (Computation of Earnings) Regulations 1996 – tribunal wrongly based finding that each month’s actual earnings were to be used (under regulation 8(1)(b)(i)) rather than averaged on a work cycle of a year (under regulation 8(3)) on a consideration that it was not ‘irrational’ for the Secretary of State not to have used the yearly cycle under regulation 8(3) – error of law for the tribunal to review the rationality of the Secretary of State’s decision when it should have decided afresh and for itself whether to use the discretion to apply regulation 8(3)

Summary

The claimant had a prosthetic eye and other difficulties with her vision, as well as anxiety and depression. Her appeal against the decision that she was not entitled to personal independence payment (PIP) was dismissed by the First-tier Tribunal. The tribunal made findings of fact that the claimant would have been able, over time, to adjust to having had an eye removed, on selected information from the RNIB website but without putting that to the claimant or giving her a chance to comment. 

Judge Stout allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred in failing to make adequate findings of fact regarding the claimant’s visual ability and not observing fairness in the way it used the website information. That arose from having made selective use of the information on the RNIB website and in not having given her a chance to comment on it. 

In its statement of reasons, the tribunal presented the information taken from the website as the expert view of the medical member. Judge Stout said: ‘It is well established that where a tribunal uses its specialist knowledge or expertise to decide an issue, fairness will normally require it to give the parties an opportunity to comment on its thinking and to challenge it: R (L) v London Borough of Waltham Forest [2003] EWHC 2907 (Admin), [2004] ELR 161. See also MB v Department for Social Development (II) [2010] NICom 133, C1/10-11(II) at [14] and Harrow LBC v AM [2013] UKUT 0157 (AAC), [2013] ELR 351. That, it seems to me, is even more important where, as appears to have happened in this case, the specialist tribunal is not truly using its own expertise but material from a website that it has not shared with the appellant. The fact that the tribunal has made selective use of the website material, ignoring the passages from the website that support the appellant’s case as to her need for assistance, increases the unfairness in this case’ (paragraph 11). 

Comment from CPAG

The tribunal’s error in the way it used information taken from the website is clear enough. It might have been described more explicitly as a breach of the rules of natural justice (although the result would have been the same).