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Summary

This decision of the Court of Session in Scotland concerns the descriptor in the test for the support group of employment and support allowance (ie, at Activity 13 of Schedule 3 of the Employment and Support Allowance Regulations 2008, SI 2008 No.794) that requires that for the claimant ‘engagement in social contact is always precluded due to difficulty relating to others or significant distress experienced by the individual.’ In particular, it is concerned with the meaning of the requirement that the engagement is ‘always precluded’.

The case arose following the decision in KB v SSWP [2013] UKUT 0152 (AAC). There, Judge Parker held that regulation 34(2), which says that a descriptor applies to the claimant ‘for the majority of the time’, applied throughout the work capability assessment rules. Applying that, and given that the words ‘always precluded’ had a secondary meaning of ‘repeatedly, persistent’ or ‘often’, meant that it was not required that the claimant could literally never take part it social engagement; rather it had to occur with a greater frequency than a bare majority of the time, and the test had to be applied in a common sense way.

Giving the lead decision in the Court of Session, Lady Smith held that the wording had to be construed not literally, but in the context of the rest of the relevant legislation. Regulation 34(2) could not be ignored, and the word ‘always’ as used in the descriptor ‘cannot have been intended to mean “always” in the sense of the claimant never, at any time, whatever the circumstances, being able to engage in “social contact”’ (paragraphs 32–35). However, the approach taken to what the words ‘always precluded’ then did mean was not that taken by the Upper Tribunal in KB v SSWP. Rather, they must mean that ‘if a claimant suffers from a mental disorder which has the consequence that, for the majority of the time, he cannot engage in social contact’. Whether that is the case is one of fact and not one answered by applying any precise mathematical approach, but by the tribunal with regard to the evidence in the particular case (paragraph 37).

Summary

In this decision, the Court of Appeal holds that the approach taken in previous caselaw to what counts as adapting the dwelling for disablement needs in the housing benefit (HB) rules was too restrictive in allowing only changes to the fabric and structure of the dwelling, and that relevant adaptations could, depending on the facts, include things like redecoration.

The claimant was seriously disabled and required kidney dialysis three times a week. He accepted a new (and more suitable) tenancy but had to accept it straight away – ie, before he actually moved in. A delay in moving in of just over two weeks occurred, partly because the property had been left in a dirty condition and needed redecoration, as the claimant needed the property to be clean to avoid infection and allow home dialysis.

Under regulation 7(8)(a)(i) of the Housing Benefit Regulations 2006, SI 2006 No.213, it was possible to be entitled to HB for a short period before moving in where the delay ‘was necessary in order to adapt the dwelling to meet the disablement needs of that person or any member of his family…’. But, applying R(H) 4/07, he was refused HB under that rule as redecoration (and furnishing) did not count, as in order to do so it was considered the adaptation had to ‘alter, change or add to the structure or fabric’ of the dwelling. The Court of Appeal held that to be too restrictive an approach. Instead, the Court agreed with an approach under which to adapt could mean ‘to make fit, to change or modify to suit a purpose’ and that, as in this case, that could include decoration where that was related to the claimant’s disablement needs (paragraphs 13–14).

Note: subsequently, official guidance (Memo DMG 6/14) was issued applying this decision to the similar housing cost rules in income support, income-based jobseeker’s allowance, income-related employment and support allowance and pension credit, and advising that decision makers ‘can no longer apply the rigid requirement that works must be to the fabric of the dwelling. Redecoration and changing the floor covering are examples of changes which could meet the definition of adapt the dwelling where there is a clear connection between the work undertaken and the claimant’s disability needs.’

Summary

In this judicial review in the High Court, Mrs Justice Lang held that the retrospective validation of regulations regarding work programmes and associated sanction for jobseeker's allowance (JSA) claimants was in breach of human rights legislation. However, as she noted, the Courts do not have the power actually to strike out the validation, which was in the form of primary legislation (paragraph 52).

The case originated in the decision of the Court of Appeal, made on 12 February 2013, in Reilly and another v Secretary of State for Work and Pensions. That held that regulations concerning work programmes and sanctions for JSA claimants (the Jobseeker's Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011, SI No.917, 'the 2011 regulations') were unlawful as they did not provide sufficient description of the various programmes. Also, the notification requirements in the 2011 regulations had not been met in the claimants' cases, with the result that no valid sanction could have been imposed. That decision was in essence upheld (and expanded upon) by the Supreme Court in R (Reilly & Wilson) v Secretary of State for Work and Pensions [2013] UKSC 68; [2013] 3 WLR 1276 ('Reilly No.1', see Bulletin 237, p12). However, by then the Secretary of State had acted to correct the defects in the 2011 regulations, and to validate notifications issued under those regulations. Under the Jobseekers (Back to Work) Schemes Act 2013 ('the 2013 Act') that validation was retrospective (in effect back to 20 May 2011 ). Also, from 12 February 2013 the regulations were replaced by The Jobseeker's Allowance (Schemes for Assisting Persons to Obtain Employment) Regulations 2013, SI No.276 ('the 2013 regulations').

Mrs Justice Lang held that the retrospective validation of the 2011 regulations and notices issued under them by the 2013 Act was incompatible with the claimant's rights (to a fair trial) under Article 6 of the European Convention on Human Rights ('ECHR') (paragraph 150). Reviewing the caselaw authority, the judge concluded that although Parliament was not actually precluded from legislating retrospectively, the prohibition in Article 6 ECHR from interference designed to influence judicial determination of a dispute to which (as here) the state was a party could only be justified 'on compelling grounds of general interest'. Parliament generally ought not to legislate to overrule the effect of court judgments so as to favour the executive in ongoing litigation brought by citizens, 'unless there are compelling reasons to do so'. Otherwise it is 'likely to offend against a citizen's sense of fair play' (paragraphs 81-82). Here, the Secretary of State was the opposing party in the history of these disputes, and the retrospective validation of the regulations was not foreseeable by the claimants (paragraphs 85 and 90). In conclusion, the interference with the claimants' rights under Article 6 was not justified. However, the judge noted that her reasoning 'applies only to the minority of claimants who pursued claims in the courts or tribunals' (paragraph 128)  - ie, so that it will apply only in cases where appeal or court action had already been commenced when the 2013 Act came into force on 26 March 2013. Also, there had been no interference with the claimants' rights to possessions under Article 1 of ProtocoI 1 ECHR, as although JSA was capable of being a 'possession', the Article was not engaged where the decision related to the claimant not being entitled to it for a future period as he no longer fulfilled the eligibility requirements, with the effect that it was no longer a possession (paragraphs 130-140).

Comment from CPAG

The government has said that it will appeal. The decision does not deal specifically, or at least in detail, with the finding by the Supreme Court in Reilly No. 1 that there was also a 'prior information' requirement to provide claimants with enough information about work programmes to enable them to make informed and meaningful representations before any requirement to participate in a scheme. Failure to provide that could invalidate any subsequent sanction (see the article in Bulletin 237, p7). That point, along with others relating to what the 2013 Act did or did not achieve (aside from compatibility with the ECHR) is due to be dealt with in cases (CJSA/628/2003 and others) before a three-judge panel in the Upper Tribunal.

Summary

The claimants were a disabled child and his maternal grandmother and step-grandfather. They lived together in a three-bedroom house, rented from a housing association, that had been substantially adapted for the disabled child. Carers for the child stayed overnight in the home twice a week, and needed a bedroom in which to sleep. There was no suggestion that the care and accommodation was not required. From 1 April 2013, the grandmother's housing benefit (HB) for the home was reduced by 14 per cent as a result of the application of the bedroom tax - ie, as provided for at regulation 813 of the Housing Benefit Regulations 2006, SI No.213. Although initially refused, discretionary housing payments (DHPs) were awarded and had been renewed, and were completely covering the shortfall in benefit. The claimants argued that the rules unlawfully discriminated against them and others in their position (under Article 14 of the European Convention on Human Rights), and sought a declaration that regulation 813 must be read as allowing a bedroom in the assessment for an overnight carer of a disabled child.

Judge Mr Justice Stuart-Smith, though granting permission for the challenge to be made, rejected the claimants' arguments and so refused the application for judicial review. He held that the rules at regulation 813 were one element of a scheme that also included DHPs, and that considering the scheme as a whole and that DHPs were in this case entirely plugging the financial gap left by the reduction in HB, any discrimination against the claimants was not 'manifestly without reasonable foundation', and so was not unlawful. In so holding, the judge had particular reference to the decision of the Court of Appeal in R (MA and others) v Secretary of State for Work and Pensions and Others [2014] EWCA Civ 13, and the earlier decision of the same court in Burnip and others v Birmingham City Council and Others [2012] EWCA Civ 629. The judge attached particular importance to the fact that in Burnip (in which unlawful discrimination against a disabled child had been found) the Court had found that DHPs were not plugging the gap caused by HB reduction, but in the later MA (which held there was no unlawful discrimination against disabled adults as a group) it found that DHPs, now better resourced, constituted part of an overall scheme that had been considered and approved by Parliament (paragraphs 28-41).

Turning to the present case, the judge held that 'the effect of Burnip and MA taken together is that, while a scheme including the use of DHPs as the conduit for payment may be justifiable, it will not be justified if it fails to provide suitable assurance of present and future payment in appropriate circumstances' (paragraph 48). However, unlike in Burnip, the evidence in the present case was not that DHPs could not be relied upon to plug the identified 'discriminatory gap' (paragraph 51 ). The claimants could not point to any financial detriment thus far, and given the extent of the disabled child's needs and that fact that the county council had available sufficient funds, 'a decision to withhold DHPs would appear to be unjustifiable' (paragraph 53). The judge concluded that 'there is at present adequate assurance that the Claimants will continue to benefit from awards of DHPs to plug the gap that would otherwise exist' (paragraph 54).

Comment from CPAG

Application for permission to appeal to the Court of Appeal has been made. Arguably, the decision places too much confidence in the ability of discretionary DHPs to compensate for discrimination, and given the widespread concern about the bedroom tax and numbers of disabled children requiring carers, the judge was arguably wrong to consider the case to be decided purely on the facts of the individual case.

Summary

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

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

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

Decision in brief

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

Decision in brief

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

Decision in brief

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

Decision in brief

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

Summary

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

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

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

Summary

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

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

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

Comment from CPAG

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