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Decision in brief

Descriptor (d)(i) ‘cannot’ engage due to such activity causing ‘overwhelming psychological distress’ - relevance of ability to engage with social support – a tribunal is ‘quite entitled to infer from the fact that a claimant actually carries out an activity reasonably often that he or she can do so without undue pain, distress or other discomfort’ – MH v Secretary of State for Work and Pensions (PIP) [2016] UKUT 531 (AAC), reported as [2018] AACR 12 did not hold that being anxious, worried or emotional could not amount to ‘overwhelming’ distress or that it had to be a ‘momentary’ episode, rather that the threshold was very high – regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013, No.377 (need to carry out an activity safely, etc.) is relevant to (d)(i) but not to reasons other than overwhelming distress: ‘Distress that has the effect that a claimant cannot engage with other people, having regard to the factors mentioned in regulation 4(2A), must be regarded as overwhelming and, equally, distress that is not overwhelming cannot, if regulation 4(2A) is properly applied, have the effect that a claimant cannot engage with other people.’

Decision in brief

Non-European Economic Area family member who had acquired permanent right to reside after five years residence with that person - as had acquired permanent right to reside, fact of subsequent divorce from family member did not require claimant to be a worker, self-employed or self-sufficient to continue to have a right to reside – no longer needed family member status.

Decision in brief

Claimant had telephoned to make a claim for income support but following non-attendance at an interview, no decision on the claim had been made and no further action taken – tribunal originally (and correctly) struck out the appeal as no decision had been made and therefore no right of appeal arose – subsequent decision to set aside the strike-out on the basis of R(IS) 6/04 incorrect as that was about appeal rights against a decision that a claim was invalid, not about where (as here) no decision had ever been made

Decision in brief

Supersession in light of MH v SSWP (PIP) [2016] UKUT 531 (AAC), reported as [2018] AACR 12 – supersession for error of law - anti-test case rule applies so as to limit date of altered decision to date of MH (ie, 28 November 2016) – although MH was made within a month of original decision in claimant’s case, so that revision on any ground could have been applied within that month, no revision was made and there was no basis for that failure itself to have been the basis for a revision on the ground of ‘official error’.

Summary 

The claimant was entitled to employment and support allowance (ESA). In 2018, following a reapplication of the work capability assessment, he was found not to have limited capability for work and so not entitled. He requested a mandatory reconsideration of that decision. Due to error at the DWP, that was not dealt with for around four months. By the time it was dealt with (and the refusal of ESA upheld), the claimant was on a combination of income support and carer’s allowance instead, and he chose not to appeal. Instead, he challenged the legality of the so-called ‘mandatory reconsideration requirement’ at regulation 3ZA of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, No.991 (the ‘Decisions and Appeals Regulations’). Under that rule, a right to appeal only arises where the Secretary of State has first considered, following a request, whether or not to revise the decision. That was important in the claimant’s case as, although a claimant such as he could have been entitled to ESA pending appeal (under regulation 30(3) of the Employment and Support Allowance Regulations 2008), there was no such entitlement pending mandatory reconsideration.

In the High Court, Mr Justice Swift allowed one of the claimant’s arguments, that in cases such as his the mandatory reconsideration requirement at regulation 3ZA was in breach of his human right to a fair trial under Article 6 of the European Convention on Human Rights. Specifically, held the judge, ‘regulation 3ZA of the Decisions and Appeals Regulations is a disproportionate interference with the right of access to court, so far as it applies to claimants to ESA who, once an appeal is initiated, meet the conditions for payment pending appeal under regulation 30(3) of the ESA Regulations’ (paragraph 28). The remedy was ‘a declaration to the effect that regulation 3ZA of the Decisions and Appeals Regulations is unlawful in so far as it is applied to ESA claimants who would, if pursuing an appeal to the First-tier Tribunal, subject to compliance with the condition at regulation 30(2) of the ESA Regulations, be entitled to receive payment pending appeal pursuant to regulation 30(3)’ (paragraph 35).

The judge held that the mandatory reconsideration requirement at regulation 3ZA was not in itself a breach of Article 6. But it was an ‘impediment or hindrance’ to the right of access to a court, and so it fell to be considered (in the context of the claimant’s case) whether that was proportionate (paragraph 19). The regulation had a legitimate objective. What remained were the questions identified by Lord Sumption and Lord Reed in their judgments in Bank Mellat v Her Majesty’s Treasury (No.2) [2014] AC 700: could the objective have been pursued by a less intrusive measure without compromising its achievement; and having regard for the objective pursued and the severity of the consequences of the measure enacted, has a fair balance been struck between the interests of those affected and the general public interest? The judge took into account that there was no time limit for making a decision on mandatory reconsideration, and during that time payment of ESA ceases. Further, considered the judge, it was ‘anomalous’ that the payment of ESA pending appeal rule at regulation 30(3) did not apply to mandatory reconsideration (paragraph 25). The judge did not consider that the Secretary of State had provided an answer as to why this was. He therefore held that regulation 3ZA of the Decisions and Appeals Regulations was disproportionate in cases where ESA pending appeal would apply (paragraph 31).

Comment from CPAG

This decision is authority that claimants who would be entitled to ESA pending appeal should (if they so choose) be able to appeal directly against ESA refusal following a work capability assessment failure, rather than being required first to go through mandatory reconsideration.

Summary

The claimant’s deceased spouse had suffered from a substantial neurological disease. She had been unable, because of disability, to work throughout her working life and therefore could not and did not pay any class 1 or class 2 NI contributions (although she was credited with contributions). Following her death, the claimant’s claim for bereavement support payment was refused on the basis that his late wife had not actually paid sufficient NI contributions for him to qualify, as required (in Northern Ireland) by sections 29 and 30(1)-(3) of the Pensions Act (Northern Ireland) 2015 (‘the 2015 Act’). The claimant argued that this was a breach of human rights via discrimination under Article 14 of the European Convention on Human Rights (ECHR) read together with Article 1 of Protocol 1 of the Convention.

The Northern Ireland Court of Appeal held that, on the facts of this case, there had been a breach of Article 14 (and therefore unlawful discrimination). The court preferred to classify the Article 14 breach as one of the principle, established by the European Court of Human Rights in Thlimmenos v Greece (2001) 31 EHRR 15, that to avoid discrimination there may be a duty to treat differently a claimant whose situation is significantly different. In this case, the claimant and the children from the marriage had been treated similarly to those whose situation is relevantly different – ie, a surviving spouse where the deceased partner had not been so disabled as not to be able to pay contributions. Such treatment (like different treatment of people whose situations are similar) would not amount to discrimination if the treatment was justified. Regarding justification, the court applied the finding of the Supreme Court in R (DA and DS) v Secretary of State for Work and Pensions [2019] 1 WLR 3289 that the test is whether the treatment is ‘manifestly without reasonable foundation.’ However, the court emphasised the finding (at paragraph 66) in that decision that a ‘proactive’ examination of whether the foundation is ‘reasonable’ is involved, and that it would be ‘fanciful’ to hold that where the Secretary of State had failed to convince that court that the treatment was reasonable, there could still be a failure by the claimant to show that it was ‘manifestly unreasonable’ (paragraph 63). The four-stage test for judging proportionality, as set out in Bank Mellat v Her Majesty’s Treasury (No.2) [2014] AC 700 (and which includes consideration of whether the impact of the measure is disproportionate), was a relevant tool in this test.

Analysing the bereavement support payment requirement for the deceased spouse/civil partner to actually have paid sufficient contributions, the court considered ‘…that the policy in its application to those who through disability are unable to work throughout their working life is manifestly without reasonable foundation. It is just not reasonable to suggest that one can incentivise a severely disabled person to work if through their disability they cannot work. Alternatively, to put it another way, that is manifestly without reasonable foundation’ (paragraph 98). Further, the court held: ‘We consider that the adverse impact is disproportionate…the respondent has failed to justify the similarity in treatment of those with and those without severe disabilities so that the contributory principle in so far as it effects those individuals who through disability cannot work throughout their working life is manifestly without reasonable foundation’ (paragraph 100). Regarding remedy, the court concluded that: ‘We can reach no other conclusion than that section 29(1)(d) of the 2015 Act should be read and given effect so that the contribution condition is to be treated as met if the deceased was unable to comply with section 30(1) throughout her working life due to disability’ (paragraph 103).

Comment from CPAG

This decision is of persuasive authority in Great Britain. However, the court’s remedy was based on a finding that (as the primary legislation was in fact the Northern Ireland Act 1998) a declaration of incompatibility was not possible. But the equivalent bereavement support payment rule in Great Britain is at sections 30 and 31 of the Pensions Act 2014, which would appear to be the relevant primary legislation in that context, with the result that a declaration of incompatibility would appear to be possible in Great Britain. The decision is also notable for its insistence on a proactive approach, involving questions of reasonableness and proportionality, to the ‘manifestly without reasonable foundation’ test.

In a separate decision (Lennon v Department for Social Development [2020] NICA 15 (26 February 2020), the Northern Ireland Court of Appeal dismissed a human rights challenge to the rules, under which an award of widowed parent’s allowance is suspended if the claimant begins cohabiting and terminated if they marry. There was no discrimination against the claimant and her children: there was no valid comparison with a claimant who remained single, and any difference in treatment was in any case justified as objectively and reasonably founded and not manifestly without reasonable foundation.

Decision in brief

Exception where had an award in previous tax year and is making a claim for the next tax year – exception can only apply if it is the same party or parties making the new claim – claimant who had been part of a couple claim in the previous tax year but is now single cannot use this ground to make a new claim for the next tax year.

Decision in brief 

Notification of requirement to attend an interview can be made orally in the course of face-to-face contact, as well as in writing or by telephone or by electronic means

Decision in brief

Secretary of State to come to a new decision based on other existing evidence or arrange for a new assessment.

Decision in brief

That was an error of law, although not a material error as it was agreed that the evidence was properly authorised – even in unredacted form, it should have been seen by all members of the tribunal – although the Secretary of State had been entitled to restrict sight of the unredacted authorisation to the tribunal, ‘excluding the appellant and her representative from any consideration of the surveillance authorisation evidence’ was a further error of law, although again immaterial – no different or higher standard of proof applies to the weighing of video surveillance evidence than it does to any other sort of evidence.

Decision in brief

Not satisfied that the claimant unlawfully killed her late husband – therefore, no questions arise for determination as to whether the claimant obtained a benefit in consequence of an unlawful killing nor whether the effect of the forfeiture rule should be modified – sections 1 and 4 of the Forfeiture Act 1982 and rules 26 and 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Decision in brief

On the facts, tribunal was wrong to conclude that it did not – the First-tier Tribunal incorrectly applied the test of access to the room as contained in Nelson – the fact that a door cannot fully open into a room but touches the bed does not mean there is not reasonable access or that it is unsafe – a 50-degree angle of door opening on its own is not a sufficient reason to find that the arrangement of the room did not provide reasonable access or was too unsafe to use as a bedroom – on the facts, a 60-degree angle of opening was possible (working on the assumption of a 75-inch-long standard adult single bed) which was comfortable and safe.