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Summary

In this decision, the Court of Appeal considered appeals from the Secretary of State against two decisions of the High Court: those in TP and AR v Secretary of State for Work and Pensions [2018] EWHC 1474 (Admin) (14 June 2018) (‘TP No.1’), and in TP, AR and SXC v Secretary of State for Work and Pensions [2019] EWHC 1116 (Admin) (3 May 2019) (‘TP No.2’).

In TP No.1, the lack of transitional protection for severely disabled claimants who moved house (to a new local authority area) and so had to make a new claim for universal credit (UC), losing their severe disability premiums (SDPs), was held to be unlawful (as unjustified difference in treatment compared to those who did not move house). In TP No.2, rules then in draft form providing for generic fixed-rate ‘transitional SDP amounts’ for severely disabled claimants who naturally migrated to UC were also held to be unlawful (as unjustified difference in treatment compared to those who, later, will get full transitional protection under the managed migration arrangements).

The court unanimously rejected both of the Secretary of State’s appeals, in effect upholding the decisions in TP No.1 and TP No.2. In particular, regarding TP No.1, the court held that Lewis J in the High Court had not erred holding that there was no objective justification for the difference in treatment. The relevant test was whether the difference in treatment was ‘manifestly without reasonable foundation’. The ‘fundamental difficulty’ for the Secretary of State was that she had supplied no evidence to explain the difference in treatment, and indeed it had subsequently emerged that in fact as early as February 2018 (ie, before the hearing in TP No.1), DWP ministers had already decided to legislate to prevent natural migration in cases such as those in TP and AR (paragraphs 115– 129). (The court noted that the failure to inform the High Court of this change was a failure, albeit by omission and in good faith, by the Secretary of State regarding the duty of candour and co-operation in judicial review proceedings (paragraphs 136–141)). Similarly, in TP No.2, Swift J, in the High Court, had not erred, in considering objective justification, in applying the test of whether the difference in treatment was ‘manifestly without reasonable foundation’. On the evidence before him, he had been entitled to hold that the different treatment was not justified, including by rejecting cost as a reason sufficient in itself (paragraphs 154–189).

Comment from CPAG

Re TP No.1, the court did not refer to the fact that the legislation preventing natural migration in cases such as TP and AR (the ‘SDP gateway’) is now to be removed from 27 January 2021. Re TP No.2, the court did not consider (as not considered in the decision under appeal) the legitimacy of the finalised rules on transitional SDP amounts in UC.

Decision in brief

Test is as in Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 (applied in AK v Social Security Scotland [2024] UT 5) – must leave reader in ‘no real and substantial doubt’ but do not require consideration of every issue raised and decision has to be read ‘as a whole’ – tribunal refused care component, including regarding managing toilet needs – did not need to explain this despite claimant at the hearing referring to use of bath and toilet  door for support – no inference this was due  to a medical condition, and information available to tribunal included that claimant had not reported problems using the toilet in his application or on redetermination or in appeal application 

Summary

The claimant was a 46-year-old national of the Philippines. Her mother came to the UK in 1990 (and subsequently became a British citizen) and began to live with a partner who was an Irish national. The mother and her partner were not married to, or civil partners of, each other. The claimant argued, for immigration purposes, that she had a right to reside as the family member of the Irish citizen. That was on the basis that she was his ‘stepdaughter’ and was financially dependent upon him. The claimant relied principally on Article 2(2)(c) of the so-called ‘Citizens Directive’, 2004/38/EC, which provides for the right to reside of ‘direct descendants’ of the European Union (EU) citizen, or of her/his spouse or registered partner, who are either aged under 21 or are dependent on that citizen.

The Court of Appeal unanimously rejected that argument. Giving the lead decision, Lord Justice Peter Jackson held that ‘a step-child of an EU citizen (meaning a child of a person who is in a relationship with an EU citizen, not being a marriage or civil partnership) is not a direct descendant of the citizen within the meaning of the Regulations that give effect to the Citizens Directive’ (paragraph 20).

Drawing on the decision of the Court of Justice of the European Union in SM v Entry Clearance Officer, UK Visa Section (C-129/18) (24 April 2019), the court accepted that on a natural reading of the rules, a person who is not a biological descendant or an adopted child is not a direct descendant. SM placed ‘beyond doubt’ that the words ‘direct descendant’ were to be given their natural meaning. Although that could also include the legal relationship of adoption, it did not include a child (as in the case of the claimant in SM) subject to legal guardianship. Given that, it would be anomalous to consider the claimant, who had ‘no legal relationship of any kind’ with the person she described as her stepfather, a direct descendant of him (paragraph 19). Article 2(2)(c) of the Directive did provide that a person could be a direct descendant of the ‘spouse or partner’ of an EU citizen – ie, so that in cases of marriage or civil partnership of the EU citizen to the claimant’s parent, there could be a ‘family member’ relationship to the EU citizen. But that did not apply on the facts of this case.

Summary

In this judicial review decision, the High Court held that rules restricting payment of the higher rate of BSP to cases where the claimant had been married to, or the civil partner of, her/his late partner was incompatible with provisions in the European Convention on Human Rights (ECHR).

The claimants were surviving parents with children from a relationship in which the partner had died. The claimants had been ‘cohabiting’ with their partners – ie, were unmarried and were not their civil partners. Under section 30 of the Pensions Act 2014 read with the Bereavement Support Payment Regulations 2017 (SI No.410), the higher rate of BSP, for surviving parents with children, is limited to cases where the claimant had been married to, or the civil partner of, her/his late partner. The claimants were therefore refused entitlement to higher rate BSP. They sought, on judicial review, a declaration of incompatibility of that restriction with Article 14 of the ECHR (prohibition of discrimination).

Mr Justice Holman granted the claimants’ applications, declaring that section 30(4)(a) of the Act, read with section 30(1), is incompatible with Article 14 of the ECHR, read with Article 8 (right to family life), ‘in so far as it empowers the Secretary of State to order by regulations that bereavement support payment be paid at a higher rate in the case of a person who is pregnant or entitled to child benefit, only if they are a spouse or civil partner of the deceased’ (paragraph 66).

Although there were differences between the higher rate of BSP and widowed parent’s allowance, which had already been the subject of a similar declaration (this time by the Supreme Court) in Re: McLaughlin [2018] UKSC 48 (30 August 2018), it was intended to benefit the relevant children, and so could not be distinguished from the reasoning in McLaughlin. Regarding whether the discrimination against the parents could be justified, the test was whether it was ‘manifestly without reasonable foundation’. But there was no more justification for the discrimination here than there was in McLaughlin – ie, where there was none. ‘In my view, said the judge, ‘there is manifestly no reasonable justification whatsoever’ in providing the higher rate BSP to families based on marriage or civil partnership, yet denying it to those based on cohabitation; ‘the impact of the death upon the child or children, and the financial and other needs of the children, are precisely the same’ (paragraph 58).

Comment from CPAG

The Secretary of State’s initial application for leave to appeal was refused; however, she may renew the application directly to the Court of Appeal. That aside, the relevant rule, being in primary legislation, was declared to be incompatible with human rights law, rather than struck down or otherwise remedied. That means that the offending law stands, and (unless the decision is reversed) it is up to the government to provide a remedy. For further information and updates, see the test cases pages of our welfare rights section.

Summary

The claimant applied for new-style employment and support allowance (ESA) – ie, contributory ESA under the universal credit system. He was refused after failing the work capability assessment. The First-tier Tribunal refused his appeal. The claimant’s application for permission to appeal was eventually granted by the Upper Tribunal on a number of grounds. A ground identified by the Upper Tribunal was that, in the tribunal’s decision notices and statement of reasons, the tribunal had referred to the Employment and Support Allowance Regulations 2008, SI No.794 (ie, relating to old-style ESA), when in fact the regulations relevant to new-style ESA are the ESA Regulations 2013, SI No.379. That was primarily due to use of the judicial case manager (JCM) software to generate decision notices, and which (at least at the time of the appeal in July 2023) automatically generated references to the 2008 regulations in all ESA appeals and could not be removed by the tribunal. The tribunal had repeated that in its statement of reasons.

Judge Butler allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred by not explaining its approach to the ‘substantial risk’ provisions, by not ensuring that the claimant had been given an adequate opportunity to refer to its questions at the hearing, and by not explaining why it did not investigate the claimant’s argument that he was due to have an operation. The judge also considered that the use of references to the 2008 ESA regulations rather than the 2013 ESA regulations (which were the ones that were about new-style ESA) was indeed wrong. However, on the facts of this case that was not of itself a material misdirection of law. Given the way the JCM worked, that was certainly the case regarding the decision notice. The judge was more troubled by the tribunal’s own replication of that error in the statement of reasons, but accepted that although the tribunal had misdirected itself in law, that was not material given that the differences in the wording in the relevant parts of the regulations (ie, regarding the work capability assessment) were slight.

However, the judge was at pains to clarify that this finding did not mean that other tribunals were immune from material error. ‘It should not be assumed,’ said that judge, ‘that my decision on this issue represents a statement of position generally for FTTs that fail to correctly identify whether they are deciding a new-style ESA appeal or an “old-style” ESA appeal. Any FTT that does not check whether it has applied the correct legislation in deciding an appeal puts its decision at clear risk of being set aside for material misdirection in law’ (paragraph 57). The judge encouraged tribunals using the JCM decision notice tool to make clear in their statement of reasons that they have correctly identified the correct ESA legislation; the DWP was strongly encouraged to indicate in its response to ESA appeals whether the benefit in question is new-style ESA, and refer to the relevant (ie, correct) regulations.

Comment from CPAG

The judge would seem to accept that, due to the JCM, the tribunal could do nothing about adoption of the wrong regulations in decision notices and therefore had not made a material error of law there. But the decision is not authority that repetition of that error by the tribunal in a statement of reasons will never be material.

Summary

The claimant reached pensionable age on 20 August 2021. He did not claim state pension at that point and carried on working. He made an online claim for state pension on 17 August 2022. In that claim, he clearly indicated that he wished to claim from his 67th birthday, which was on 20 August 2022. He was awarded state pension, including an increase for deferring entitlement, from that date. However, the claimant had made a mistake and had intended to ask for backdating to 20 August 2021. Having been refused that, the First-tier Tribunal (FTT) allowed his subsequent appeal on the basis that the decision starting entitlement from August 2022 was capable of revision on any ground to correct that mistake.

Judge Wright allowed the further appeal of the Secretary of State and substituted a decision that the First-tier Tribunal had erred in law and that the claimant’s appeal to it was dismissed – ie, with the effect that the date of claim was 20 August 2022. The tribunal had erred in considering that the Secretary of State’s decision could have been revised so as to backdate the claim for a year. Even though the claimant had indeed made a mistake in asking for his claim to start in August 2022, he had clearly indicated that date on his claim and the structure of the state pension rules did not permit that to be changed once the claim had been decided upon. There was no parallel with the rules on extending the time to claim (in effect, backdating) universal credit (UC), as adjudicated on by the Court of Appeal in Secretary of State for Work and Pensions v Miah [2024] EWCA Civ 186, reported as [2024] 1 WLR 3012, which were quite different.

The claim was decided on 17 August 2022. Judge Wright agreed with the Secretary of State that after the claimant’s having chosen his date of claim and the claim having been decided on that basis, there was ‘no proper basis’ for the Secretary of State, or the tribunal, to have then decided differently (paragraph 33). Although under regulation 5(1) of the Social Security (Claims and Payments) Regulations 1987 the claimant had been able to amend his claim (ie, to ask for backdating) at any time before it was decided, he had not done so. The claim form had been very clear, and there was no dispute that the claim had been correctly decided. Having been decided, the claim no longer existed and could no longer be amended. ‘Given all this,’ said the judge, ‘I can identify no lawful basis for the Secretary of State or the FTT on appeal changing the start date of entitlement to the state pension, as to do so would be to amend the claim after it had been decided and after it had ceased to exist’ (paragraph 37). It was important to note that the rules on the state pension placed in the hands of the claimant the choice between claiming on reaching pensionable age or deferring until a later date. The tribunal was not permitted to act on the wish of the claimant, subsequent to the decision adopting that choice, to change it. Nor did anything in Miah alter that. The issue in Miah was whether a UC claim had been made within the time and (in the judge’s words) ‘where there was an absence of evidence about the date from when Mr Miah wished to claim his universal credit.’ The ‘essence’ of the court’s decision was the conclusion that whether UC had been claimed in time ‘could be determined (on revision or on appeal) like any other issue going to entitlement’. That was different to the present case, which was about state pension where the claimant had clearly indicated he wanted to defer his claim and his entitlement until his 67th birthday (paragraph 48).

Comment from CPAG

This decision, as the judge makes clear, is predicated on the very particular arrangements regarding date of claim and deferral on entitlement in the state pension rules. As the judge (and the Secretary of State in her submission) also makes clear, that is very different from the UC context and Miah, where there is no requirement on claimants to indicate a wish for backdating and it is for the Secretary of State to consider that when making the decision.

Decision in brief

Claimant’s HB suspended in August 2017 following termination of income support – but subsequent decision removed entitlement (and raised an overpayment) from April 2017 – regulation 14 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 only provides for termination from the date of suspension (CH/2995/2006 cited) – termination from an earlier date requires alternative grounds and tribunal was required to investigate that.

Decision in brief

Claimant refused care component of disability living allowance as a family member of someone working in another member state, and so UK was not the competent authority for payment of sickness benefits – Belgium was the competent state, under Article 11 of EC Regulation 833/04 as claimant’s father was working there – Article 21 applies competence to ‘insured persons’ and their family members – ‘insured person’, ‘seems to be a convenient term to cover the full range of potential social security claimants under the new Regulation’ – Article 21 overrides the claimant’s entitlement in her own right and as a family member of her mother as an insured person.

Decision in brief

What was said in PG v Commissioners for Her Majesty’s Revenue and Customs and NG [2016] UKUT 216 (AAC) about time spent with each parent not being determinative of who has main responsibility is correct – but it is equally an error in law to hold that in the current case the address which the dentist, GP and the school held for the children was as the tribunal put it ‘ultimately determinative as to who had the main responsibility for the children’ – this was particularly so given that the appellant’s evidence was that he was also the point of contact at the school, GP and dentist.

Summary

In this case, the Court of Appeal held that the absence of transitional protection for claimants who had their award of ‘legacy’ means-tested benefit wrongly terminated by the DWP and claimed UC as a result but were worse off on UC, was in breach of their human rights, and therefore unlawful. In so holding, the court reversed the earlier decision in these cases of the High Court but left it to the Secretary of State to devise a remedy.

TD was the mother of a disabled child (AD) who had been on income support (IS), child tax credit (CTC) and carer’s allowance. Her award of IS was terminated by the DWP. Although that decision was subsequently changed (as incorrect) on revision, in the meantime she had claimed UC, and was worse off as the amounts for her disabled child in UC were less than in her IS and CTC. The claimant in Reynolds was on income-related employment and support allowance (ESA) which included the severe disability premium (SDP). Her ESA was terminated following her failure, allegedly without good cause, to attend a medical assessment, but without the decision maker having regard to a letter from her GP explaining why she could not attend. Although that decision was subsequently changed (as incorrect) on revision, in the meantime she had claimed UC and was worse off due to there being no SDP in UC.

The Court of Appeal unanimously declared that in these circumstances the claimants had undergone a violation of their rights under Article 14 (prohibition of discrimination) of the European Convention on Human Rights. They had been discriminated against when compared to similar claimants who have not had their legacy benefit wrongfully terminated. The difference in treatment could not be justified (ie, so as to be lawful) as it was ‘manifestly without reasonable foundation’. The High Court, in the decision now under appeal, had erred in merely asking whether the Secretary of State had given adequate consideration to the question of justification, rather than actually deciding whether the difference in treatment was indeed justified.

Giving the lead decision, Lord Justice Singh held that ‘the difference in treatment was manifestly disproportionate in its impact’ on the appellants with regard to the Secretary of State’s aims in creating the UC rules, and so (in the absence of evidence from the Secretary of State to the contrary) was ‘manifestly without reasonable foundation’ (paragraph 92). The Secretary of State argued that the claimants in fact had undergone a change in their circumstances (ie, so as to justify their treatment) by themselves deciding to claim UC. But Lord Justice Singh said: ‘In my view, this is to elevate form over substance. Although it is true that the appellants were not compelled by law to apply for UC, as a matter of practical reality they had no choice but to apply for UC. It is important that the legislation in this country governing social security should be interpreted in a way which conforms to practical reality, given the potential impact on some of the poorest people in society’ (paragraph 69). Further, in rejecting administrative cost and complexity as a justification, he said: ‘What is crucial, in my view, is that these appellants were treated as they were despite their successful reviews, for reasons to do with administrative cost and complexity, which have nothing to do with the merits of their cases; and that the only reason in reality why they moved from legacy benefits to UC was as a result of errors of law by the state itself’ (paragraph 83).

Comment from CPAG

Other claimants who claimed UC having had their legacy benefit incorrectly terminated by the DWP and were worse off as a result may (depending on the facts) have good arguments that they have been treated unlawfully. However, the court made a declaration that the claimant’s Article 14 rights had been violated, rather than actually remedying that violation, which was left to the Secretary of State to devise. A response by the Secretary of State is now awaited.

Decision in brief

Tribunal took some details from appointee but (because of not realising she was the appointee and failure to adjourn to clarify this) did not put to her concerns about the medical evidence and so appointee did not have proper opportunity to address the tribunal – breach of fairness rules – claimant’s application for permission to appeal to the Upper Tribunal, although late and after a late request for a statement of reasons had been refused, cannot have lawfully been refused by ‘tribunal administration’ – ie, without putting before a judge.

Decision in brief

After reaching 65 the enhanced rate removed on reassessment – tribunal erred in holding that the award had been superseded for change of circumstances and that it had been for the standard rate, with effect that the enhanced rate could not be awarded after age 65 – supersession should have been for receipt of new official medical report, and on basis that original award was for the enhanced rate, with effect that the enhanced rate could be restored on appeal after age 65 – even if there had also been a change of circumstance, the correct approach would have been to allow the claimant to take advantage of the receipt of new medical report ground so as to avoid limitation of the award (DS v SSWP (PIP) [2016] UKUT 538 (AAC), reported as [2017] AACR 19, applied).