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Decision in brief

Where a claimant says that they have difficulty in doing activity due to pain, it is important to take account of that in particular regarding ability to do the activity repeatedly and within a reasonable time, and make relevant findings of fact

Decision in brief

Claimant was in receipt of personal independence payment, but due to Covid- related delays was still awaiting a work capability assessment by the time he started his course of study – consequently was no determination awarding limited capability for work (LCW) by that time under so could not be entitled (under regulation 14(1)(b) of the Universal Credit Regulations 2013) to UC as a disabled student – tribunal did not err in refusing the claimant’s appeal – ‘no way round’ the problem that the claimant did not have a LCW determination before he started his studies

Summary

The claimant was held to have been overpaid income support between dates in 2009 and 2013, due to excess capital in the form of money in bank accounts. Information about this had been obtained from the bank by the Department for Social Development (‘the Department’). However, this was in breach of authority from the claimant to obtain such evidence, which he had limited to a period from July 2013 onwards. The appeal tribunal dismissed the claimant’s appeal, holding that the evidence could be taken into account even though it had been unlawfully obtained.

Commissioner Stockman upheld the claimant’s further appeal and substituted a decision that the claimant’s human rights had been breached, that the unlawfully obtained evidence should not be admitted and, in the absence of any other evidence about the claimant’s capital in the relevant period, that the claimant had not been overpaid. The evidence was unlawfully obtained, as it was regarding a period excluded by the terms of the authority given by the claimant, and the Department was not exercising fraud investigation powers – ie, under which such evidence can lawfully be obtained without consent. The claimant’s right to private and family life under Article 8 of the European Convention on Human Rights ‘(the Convention’) had been breached.

The tribunal had referred to the decision in C53/08(DLA) as authority for its finding that improperly obtained evidence can be taken into account. But that decision was made before the coming into force of the Human Rights Act 1998, which incorporated the Convention into UK law, and so created a different context. The tribunal had erred in failing to address whether the unlawfully obtained evidence would affect the fairness of the proceedings – ie, and so potentially to breach the claimant’s right to a fair trial under Article 6 of the Convention. Substituting a decision, the Commissioner held that the loss to the public purse at stake in this case was ‘relatively minor’, that there was no ‘deliberate fraudulent intent’ by the claimant, and that the public was ‘entitled to be protected from irregular access…to their private information’ (paragraph 83). Therefore, the unlawfully obtained evidence should not be admitted and, in the absence of other evidence, the result was that the claimant had not been overpaid.

Comment from CPAG

This decision of the Northern Ireland Commissioners is formally of persuasive rather than binding authority in Great Britain. However its reasoning, founded as it is in human rights considerations, will at least be capable of direct application, although the facts of the case were clearly important in forming the Commissioner’s conclusions.

Summary

In this judicial review decision, the High Court rejected an argument that the treatment for UC purposes of maternity allowance as unearned income rather than earned income is unlawful.

The claimant was not entitled to statutory maternity pay (which is treated as earned income for UC), but was entitled to maternity allowance (which is not). In the calculation of her UC, the maternity allowance was therefore deducted pound for pound from her maximum entitlement, unlike statutory maternity pay, which as earned income only 63 per cent of which would have been deducted. The claimant argued that the relevant rule treating maternity allowance as unearned rather than earned income, at regulation 66 of the Universal Credit Regulations 2013, was unlawful, on the basis that it was discrimination contrary to Article 14 of the European Convention on Human Rights or, alternatively, was irrational. (The claimant also argued that the decision in making the 2013 Regulations to treat maternity allowance in this way was in breach of the public sector equality duty in the Equality Act, but permission to apply on this ground was refused by the judge as having been made out of time.)

Mr Justice Swift rejected those arguments. Although he had doubts about whether needing to claim maternity allowance rather than statutory maternity pay constituted an ‘other status’ for the purpose of an Article 14 challenge, he was content to focus on whether there was sufficient justification for the different treatment. He considered that there was. His reasons for that concerned the fact that statutory maternity pay was paid by employers through the payroll, that that was a real-time information (RTI) system used to report such payments, and the UC system was designed around allocating RTI payments as earned income. For the same reasons, the difference in treatment was not irrational. The claimant’s reliance on the United Nations Convention on the Rights of the Child did not alter that. Even to the extent that it was a legitimate tool for considering justification for different treatment or rationality arguments, the Convention did not impact on them as it remained that a total social security payment equivalent to maximum UC remained payable.

Summary

The claimant was entitled to income-related employment and support allowance (ESA), including a severe disability premium (SDP) as a result of his entitlement to the middle rate of the care component of disability living allowance (DLA). In 2012, his entitlement to the middle rate of the care component was ended by the Department for Social Development; however, the claimant did not inform the ESA office of this and his ESA continued to include the SDP. In 2014, the Department removed the SDP and in 2015 decided the claimant was liable to repay the overpayment of ESA (ie, caused by the continued inclusion of the SDP) for the 2012 to 2014 period. The claimant’s appeal to the First-tier Tribunal was refused.

Commissioner Stockman allowed the claimant’s further appeal and substituted a decision that he was not liable to repay the overpayment. This was because the overpayment had not been caused by the claimant failing to disclose the ending of his entitlement to the middle rate of the care component of DLA. The ESA office of the Department was considered to have known about the change, and the claimant knew that it knew. The claimant was therefore not under a duty to report the change and could not have failed to fulfil that duty.

The First-tier Tribunal had rejected the claimant’s arguments that the ESA office already knew of the change, citing the decision of the House of Lords in Hinchy v Secretary of State for Work and Pensions [2005] UKHL 16, that a claimant was not entitled to rely on the Department’s systems or practices as satisfying the primary obligation to notify the Department of changes in circumstances. However, Commissioner Stockman considered that times had changed since the decision in Hinchy, and in particular that ‘…one cannot envisage a rational modern computerised system of administration of benefits, where the rate of one benefit (ESA) is conditional on entitlement to another (DLA), which does not verify the details of that other award’ (paragraph 45). Also, ‘Hinchy addressed a disjointed departmental administration in the period from 1993 to 1998 passing information about DLA awards around on pieces of card, where one branch did not know what the other was doing. The evidence in this case indicates that that system has been consigned to the past. Claimants are entitled to assume that when they receive their decision in relation to one benefit, the Department’s modern computerised systems will not just have communicated the decision to them, but also to any other branches of the departmental administration where that decision has an impact’ (paragraph 48); and ‘it is plainly time that the factual circumstances underpinning the House of Lords decision in Hinchy are distinguished in order to reflect the reasonably expected standards of 21st century benefits administration’ (paragraph 50). The claimant was therefore entitled to assume that the ESA office knew of the change.

Comment from CPAG

As a Northern Ireland decision, this decision is not formally binding in Great Britain, but may be considered persuasive. As such, it could be applied regarding the recoverability of any overpayment in Great Britain that is founded upon an alleged failure to disclose (this will not include overpayments under the universal credit system). The robust engagement with the practical consequences of the passage of time since Hinchy, and what it is reasonable to expect of claimants, are to be welcomed. However, it remains to be seen exactly how persuasive authorities in Great Britain will regard its decisive move away from the conclusions in Hinchy.

Summary

In this decision, the Court of Appeal in substance upheld the previous decision of the High Court in this case (Bulletin 273, p8). There, a challenge to the lawfulness of the equalisation between men and women of the state pension age and the raising of the pension age, based on alleged discrimination on grounds of age or sex (or age and sex combined), and of allegedly inadequate notice of the changes, was rejected. The claimants were both women who, under the changes, reach pension age at the age of 66.

In the Court of Appeal, the Master of the Rolls, Lord Justice Underhill, and Lady Justice Rose DBE unanimously rejected the claimants’ further appeal. Regarding alleged age discrimination contrary to Article 14 of the European Convention on Human Rights, although the court took a different view to the High Court in that it considered that older women might be a valid comparator group regarding the alleged discrimination, it agreed that any discrimination was nevertheless justified. It was right to regard the matter as one of macro-economic policy, and the court agreed with the High Court that ‘it is impossible to say that the government's decision to strike the balance where it did between the need to put state pension provision on a sustainable footing and the recognition of the hardship that could result for those affected by the changes’ was manifestly without reasonable foundation (paragraph 55). Regarding indirect sex discrimination or sex/age discrimination, firstly the court agreed with the High Court that the domestic law was not within the scope of European Union law. It also agreed that even if indirect discrimination under Article 14 had occurred, it was not unlawful under Article 14, as it was in any case justified as not manifestly without reasonable foundation. The evidence showed that proper consideration had been given to these measures, which ‘dealt with controversial matters of huge political weight and clearly fall within the macro-political field’ (paragraph 93).

Regarding notification, the High Court was ‘entitled to conclude as a fact that there has been adequate and reasonable notification given by the publicity campaigns implemented by the Department over a number of years’ (paragraph 120).

Summary

The claimant had her weekly housing costs (payable for each week of the year) converted to a monthly amount, as per the formula in paragraph 7(2)(a) to Schedule 4 of the Universal Credit Regulations 2013, SI No.376. That produced an average monthly cost over 52 weeks. The claimant challenged the use of 52 weeks in the year in the formula, as a year will consist either of 52 weeks and one day, or 52 weeks and two days, and in her case the formula left her UC short of her full housing costs by £10 a year. She also argued that the formula constituted a breach of Article 14 of the European Convention on Human Rights by unlawfully treating a person with weekly housing costs differently to someone whose costs were monthly, so that the person with weekly costs suffered a shortfall.

In the High Court, Mr Justice Julian Knowles rejected those arguments. He held that use of a formula based on a 52-week year was not irrational, as UC was not intended to cover every penny of a claimant’s housing costs, the formula provided consistency and simplicity and reflected the reality that in most year tenants will have 52 payments to make. Referring to the decisions, R (Johnson) v Secretary of State for Work and Pensions [2020] EWCA Civ 778 (regarding ‘non-banking day salary shift’ and treatment of earnings) and in R (Pantellerisco) and others v Secretary of State [2020] EWHC 1944 (Admin) (regarding exception from the benefit cap and treatment of earnings), the judge considered that ‘the regulations in issue in this case cannot be said to have produced such stark and arbitrary effects as the Regulations did in the two earlier cases. In other words, despite Mr Royston’s submissions, I remain unpersuaded that the formulae do in fact create a problem requiring a solution’ (paragraph 205).

There was no breach of Article 14 because the difference in treatment was not manifestly without reasonable foundation, as not manifestly disproportionate to the aims of the legislation: differences in treatment, even where they did occur, were very small and not disproportionate with simplicity and ease of explanation.

Summary

The claimant was refused a funeral support payment (the replacement in Scotland for funeral grants from the social fund in the UK) because her claim was made too late. Her partner had died on 3 May 2020 – ie, during the Covid-19 pandemic. On 29 May, she contacted the DWP to make a claim and received a text message saying that it might take longer than usual to process it. But the DWP did not, as it was supposed to, refer the claim to Social Security Scotland (SSS). The funeral took place on 2 June 2020. Eventually the claimant contacted the DWP to enquire what was happening, at which point the Department apologised for its erroneous handling of the claim and (eventually) told the claimant she had to claim from SSS. That claim was made on 22 November 2022 and was refused by SSS because it was made more than six months after the funeral date. That decision was upheld by the First-tier Tribunal for Scotland. 

In the Upper Tribunal for Scotland, Lady Poole allowed the claimant’s further appeal and substituted a decision that the claimant was entitled to a funeral support payment. The basic rule was that an application for a funeral support payment had to be made within six months of the day the funeral took place. But one of the limited exceptions to that was provided for by section 52B of the Social Security (Scotland) Act 2018 (‘the Act’). That was one of a number of specific provisions introduced during the Covid pandemic, and provided that an application may be treated as made on time if ‘...the reason for its not being made sooner is related to coronavirus’. Lady Poole held that on the facts and construing the reference in section 52B of the Act to the lateness being ‘related to coronavirus’, the claim to SSS should have been treated as made on time. The First-tier Tribunal had erred in law in not holding that. 

In construing section 52B, Lady Poole considered that the impaired ability of the DWP during the pandemic to pass the application to SSS meant that the reason the eventual claim was made outside the basic time limit was indeed ‘related to coronavirus’. In so holding, Lady Poole referred to the social security principles in section 1(a)–(h) of the Act. At section 2 of the Act, it is provided that ‘a court or tribunal...may take the Scottish social security principles into account’. The use of the word ‘may’ (rather than ‘must’), and the reference to ‘taking into account’ the principles (rather than using them to override rules) meant that arguments made for the claimant that the basic time limit for claiming should be disapplied or ignored, with the principles used as a checklist to be used by tribunals, had to be rejected. However, in the present case, the possible operation of the exception to the time limit in coronavirus cases, as set out in section 52B, was disputed and so required to be interpreted. 

Lady Poole held that ‘the social security principles help point towards the approach which is to be preferred’, and ‘if there is a construction and application of section 52B that gives effect to the policy and intention underlying principles (b) (social security is a human right), (c) (the delivery of social security is a public service) and (e) (that the Scottish social security system is to contribute to reducing poverty in Scotland), it is to be preferred over one which does not’ (paragraph 22). Accordingly, the DWP service failures and consequent lateness of the application could be said to ‘relate to’ coronavirus. 

Comment from CPAG

This decision provides helpful authority that the principles in section 1 of the Act can, in a relevant case, be used by courts and tribunals as an aid to interpreting and applying (albeit not simply ignoring) provisions regarding Scottish devolved benefits. Whether that should be done, and what the result is, will depend on the facts of the case.

Summary

The claimants were all entitled to ‘legacy’ means-tested benefits (income-related employment and support allowance (ESA), income-based jobseeker’s allowance (JSA) and income support). They applied for a judicial review of the decision by the Secretary of State not to ‘uplift’ the rates of those benefits in the light of the coronavirus pandemic so as to match the £20 per week uplift to the UC standard allowance that applied from March 2020, by virtue of the Social Security (Coronavirus) (Further Measures) Regulations 2020 No.371. They argued that that refusal was unlawful as discrimination against them in breach of Article 14 of the European Convention on Human Rights (read with Article 1 of Protocol 1).

In the High Court, Mr Justice Swift refused the claimants’ applications. Firstly, being recipients of legacy benefits was not in itself an ‘other status’ for the purposes of Article 14, so they could not found a claim on that point. The claimants did have an ‘other status’ as claimants with disabilities. However, any difference in treatment to those on UC was justified and so not unlawful. The judge accepted that in the context of the coronavirus pandemic, the Secretary of State had made a legitimate choice to target the uplift on new claimants (who may have just experienced a decline in income and were more likely to be claiming UC). The judge said: ‘With the benefit of hindsight it may well be possible to pick holes in the strict logic of the decisions taken. But in the circumstances of this case, where the decision challenged (the 2020 Regulations) was a temporary measure addressing a situation which the government was entitled to regard as one of national emergency, a sensible margin of discretion must be permitted. Even accounting for the fact that the claimants’ indirect discrimination case is a claim on grounds of disability, I am satisfied that the reasons relied on by the Secretary of State to explain the decision to make the 2020 Regulations provide a sufficient justification. The justification provided is sufficient to answer each of the discrimination claims the claimants advance’ (paragraph 38).

Summary

The claimant was in receipt of HB. But (on a date in April 2018) he submitted a claim for UC, apparently on the basis of informal advice given to him on the street and while under the influence of alcohol. About two and a half hours after submitting the claim, he contacted UC again to ask that it be withdrawn. But a ‘stop notice’ had already been sent (by computer) to the local authority, who terminated his HB and would not allow him to make a new claim. His UC claim was eventually ‘closed’ by the DWP as he failed to attend the initial interview. The First-tier Tribunal held that he had made a claim for UC.

Judge Jacobs refused the claimant’s further appeal, holding that he had indeed made a claim for UC, that the HB was correctly terminated as a result, and his attempt to withdraw the claim was either ineffective or of no relevance. In so holding, he declined to follow the decision of Judge Mitchell in HMRC v AB [2021] UKUT 209 (AAC) as that was made on ‘different arguments and a different explanation of how the online universal credit system works’ (paragraph 13). Regarding termination of the HB, the relevant rule was at regulation 8 of the Universal Credit (Transitional Provisions) Regulations 2014 No.1230. That provides for termination where a claim is made and the Secretary of State is satisfied that the basic conditions at section 4(1)(a)–(d) of the Welfare Reform Act for UC entitlement are met. The nature of the UC online system is that a claim is only capable of submission when those conditions are (for the purpose of regulation 8) met. The judge held that the claimant’s admission to the tribunal that he had been competent to submit the claim when he did meant that there was no argument that he had not in fact made a valid claim.

Regarding withdrawal of a claim, the relevant rule was at regulation 31(1) of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013 No.380. That allows withdrawal of a claim ‘at any time before a determination has been made on it’. The judge considered, firstly, that because a ‘determination’ had already been made that the basic conditions were satisfied (ie, immediately on receipt of the online claim), it was not possible for the claim to be withdrawn. But, secondly, even if that were not correct on the basis that the ‘determination’ referred to in regulation 31(1) is in fact the later decision on the claimant’s actual entitlement to UC, it remained that a claim could not be withdrawn retrospectively – so the automatic issue of the stop notice still negated the withdrawal. Thirdly, even if the withdrawal was retrospective, it still had no effect, because that had no relevance to the transition rule in regulation 8 of the Transitional Provisions Regulations. Referring to his decision in SK v HMRC and SSWP (see below), the judge considered that regulation 8 is ‘freestanding and operates without regard to regulation 31…On my analysis in SK, the point of reference of regulation 8 as a transitional provision is on the moment when the claim is made and the Secretary of State is satisfied that the relevant basic conditions are met. At that moment, as a matter of fact in history, there is no doubt that the claimant had made a claim and no doubt either that he met the necessary basic conditions’ (paragraph 34).

Comment from CPAG

The conclusion that, regarding termination of an existing HB award, withdrawal of the UC claim effectively makes no difference is contrary to the approach of Judge Mitchell in HMRC v AB, although as the present decision is the later of the two, it is likely to be given more weight and require another (contrary) decision to displace it. The insistence that regulation 8 is ‘freestanding’ and that receipt of a claim automatically means that the basic conditions are satisfied for transition purposes is arguably wrong: see the comment to SK v HMRC and SSWP.

Summary

The claimant had a number of health problems, including autistic spectrum disorder, fine motor problems, urinary problems and chronic back pain. He was refused personal independence payment (PIP) having failed to score sufficient points. That decision was upheld by the First-tier Tribunal. In its decision, the tribunal said that it considered that the claimant had exaggerated his symptoms and difficulties regarding various parts of the test for PIP, and that it did not consider him a credible witness. But the tribunal also made substantial reference to other evidence in the case, and said that it had given itself a warning similar to that referred to in the criminal case of R v Lucas [1981] QB 720, where it was said the fact that the witness has lied about some matters does not mean that he or she has lied about everything.

Judge Hemingway set the decision aside and referred to the case to a fresh tribunal, on the grounds that the tribunal had given inadequate reasons for the scoring it applied regarding the claimant’s need for social support. But it had not erred in its approach to the claimant as a witness. There was no need for Upper Tribunal authority on the application of R v Lucas in the social security context, as what it said was obvious (and the tribunal hardly needed to give itself a warning about it).

Further, the tribunal was entitled to assess the claimant’s credibility and to reach the conclusions it did regarding the lack of credibility of certain parts of his evidence. The tribunal had not relied for its conclusions on entitlement solely on its findings about the claimant’s credibility (which would have been wrong), but had instead conducted ‘a holistic analysis’ and taken into account and relied upon, ‘not only the oral evidence it received, not only the written evidence it received which had emanated from the claimant himself, but the considerable written evidence, including medical evidence, it had received from other sources’ (paragraph 23). Neither had the tribunal created an impression of unfairness by its frequent references to its disbelief of the claimant. The judge had regard to VS v SSWP [2017] UKUT 274 (AAC), a decision in which it was considered that the amount of such comment by the tribunal had created the impression of unfairness. But the present case was different. The judge considered that the tribunal ‘did properly apply its adverse credibility conclusions. Its frequent references to the lack of credibility when explaining and justifying its conclusion with respect to each activity in issue, was perhaps unnecessarily repetitive as I have touched upon but on my reading what it was doing was simply stressing its disbelief with respect to each compartmentalised consideration of each activity for the sake of thoroughness’ (paragraphs 24–25).

Comment from CPAG

This decision is a clear statement of a tribunal’s ability to make adverse credibility findings about a claimant and the approach to that when deciding entitlement and giving reasons. For a wider discussion, see the article in Bulletin 291, p7.

Summary

Between 2000 and 2012, the housing benefit (HB) claimant (‘AB’) was overpaid HB amounting to over £67,000. The overpayment was caused by AB continuing to report that the property was rented when in fact he and his wife (‘CD’) were the owners of the property. From 2007, when AB suffered a stroke, CD dealt with his financial affairs (she had lasting power of attorney, but was not the claimant or a formal appointee for his HB claim) and continued to ask for reviews of the HB award after alleged ‘rent’ increases by the ‘landlord’. CD was subsequently convicted of fraud. In 2012, the local authority issued HB overpayment notices and sought recovery, without naming CD, although in correspondence the local authority claimed that both AB and CD were jointly and severally liable. The First-tier Tribunal held the overpayment was recoverable from CD, as she had made relevant misrepresentations and had been present at the appeal, although she was not a party to the appeal and repeatedly said she did not wish to be so. However, in 2022 the Upper Tribunal held that AB was liable for the overpayment but CD was not: she had not been the subject of a decision by the local authority, including about recoverability of the overpayment, and her attendance at the tribunal hearing had not cured that. 

The Court of Appeal rejected the further appeal by the local authority. The Upper Tribunal had not erred in holding that the overpayment was not recoverable from CD. A ‘fundamental difficulty’ for the local authority was that its own documentation indicated that the person against whom the claim for the overpayment was made was AB, and it had wrongly thought that AB and CD could be held jointly and severally liable (paragraph 49). The decision notices were addressed to CD but directed to AB. At the First-tier Tribunal, there had been no formal definition of CD’s status, and she did not have any express power to litigate on AB’s behalf. 

The court did not consider that CD had ever been a party to the appeal in her own right, before either the First-tier or the Upper Tribunal. The Upper Tribunal correctly identified that CD had never been a party to any of the proceedings. The court considered that although CD had taken an active part in the proceedings as a representative or litigation friend, that had not made her a party in them. Taken together with the absence of a single decision to recover the overpayment from her, ‘by reason of its own procedural and substantive failures’, the local authority had ‘failed to satisfy the court that it is legally entitled to claim overpayment of housing benefit from CD’ (paragraph 78).