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Summary

The claimant was awarded IS on the basis that she was a lone parent. However, it was later decided that she was living together as a married couple (and so not entitled to IS) with someone she had represented as her ex- partner. The First-tier Tribunal dismissed her appeal. Her appeal to the Upper Tribunal involved arguments that the tribunal had failed properly to apply the correct legal test, by failing to make adequate findings of fact about relevant factors and failing to deal with the emotional aspect of the relationship.

Deputy Judge Najib dismissed the claimant’s appeal. The tribunal had correctly applied the legal test and given adequate reasons for its decision. The judge did not dispute that the correct starting point for deciding whether an unmarried couple was ‘living together as a married couple’ (ie, what is sometimes referred to as cohabiting) was set out in Crake v Supplementary Benefits Commission; Butterworth v Supplementary Benefits Commission [1982] 1 All ER 498. The six factors of shared household, stability, financial support, sexual relationship, children and public acknowledgement were, as described there, ‘admirable signposts’ to help in deciding the question. Deputy Judge Najib also endorsed the need to address the emotional aspect of the relationship, as emphasised by Judge Jacobs in PP v Basildon District Council (HB) [2013] UKUT 505 (AAC).

But the tribunal had applied that authority and reflected that in the reasons for its decision. The deputy judge accepted the Secretary of State’s argument that, in the light of comments by the Scottish Court of Session in DK v Secretary of State for Work and Pensions [2016] CSIH 84, the decision was to be reached in the round. No single fact or ‘signpost’, as in Crake, was decisive, and the question was not whether a particular ‘signpost’ was or was not established but whether on all the evidence the primary question of whether two people were ‘living as a married couple’ was established (paragraph 23). It was not necessary for a tribunal to ‘give long and precise’ accounts of its reasoning regarding each of the individual ‘signposts’, and in fact there was ‘no requirement in every case for there to be a “finding” on each signpost’, as long as the tribunal had taken all the evidence into account and answered the primary question, namely whether the claimant was living with someone as a married couple. The tribunal had given a summary of the reasons why each ‘signpost’ was met, and the deputy judge was also satisfied the tribunal had given adequate consideration to the emotional aspects of the relationship (paragraphs 25–27).

Comment from CPAG

This decision is not authority that the ‘signposts’ in Crake and the ‘emotional aspect’ in PP are not at the core of the correct legal test for deciding cohabitation. Rather, it holds that a tribunal is not required to give detailed reasons about each signpost or factor, as long as it has given adequate consideration to them and taken all the relevant evidence into account. (Note that since 2 December the statutory test is whether the two people are living together ‘as a married couple or civil partners’.)

Summary

The claimant moved out of the matrimonial home, with her three children, in 2012. Her husband remained in the property. The claimant claimed HB in 2012 and 2014. The local authority maintained that she did not declare her interest in the property until 2016, by which time she was going through a divorce. The local authority decided that she had not been entitled to HB as a result of the 2014 claim and raised an overpayment for the 2012 to 2016 period. The claimant appealed, arguing that she had declared her interest in the property and that the overpayment was not recoverable from her. The First-tier Tribunal allowed her appeal, but on the basis that the former home had been occupied by a former partner from whom the claimant was not ‘estranged’, and therefore fell to be disregarded as her capital – ie, and so she had not in fact been overpaid.

Judge Sutherland Williams allowed the further appeal of the local authority and remitted the case to a fresh tribunal. The tribunal had erred in its approach to the meaning of whether the claimant was ‘estranged’, and had wrongly found that her interest in the former matrimonial home was to be disregarded as her capital, under paragraph 4 of Schedule 6 to the Housing Benefit Regulations 2006, No.213. As a result, the ‘central factual issue’ of whether the overpayment was recoverable from her had been left unresolved and would need to be dealt with by the new tribunal. The tribunal was to proceed on the basis that the claimant was estranged from her former partner at all relevant times (paragraphs 40–46).

The judge held that the claimant was not entitled to have the value of her interest in the matrimonial home disregarded under paragraph 4(b). That was because, contrary to the tribunal’s finding, she was ‘estranged’ from her former partner. Paragraph 4(b) applies in cases where the home is lived in by someone regarded as a former partner because (for example) the couple are no longer members of the same household, but not where they are estranged, divorced or where their civil partnership has been dissolved. The tribunal found that the claimant and her former partner had remained in contact ‘purposefully and effectively’ regarding things like childcare, maintenance and money matters and concluded that they were not estranged. But that was wrong. In the context of Schedule 6, held the judge, estrangement ‘implies that the reason the two people concerned are no longer living together as a couple in the same household is that the previous relationship between them has ended… the test is not limited to whether they continue to remain friendly relations or remain on good terms with one another’ (paragraph 9). That approach was founded in previous caselaw authority, in particular R(IS) 5/05 in which it was held that the question was whether the parties had ceased to consider themselves to be a couple. Drawing on that, Judge Sutherland Williams said that an estranged couple ‘may operate on a functional, non-acrimonious level, but this cannot be considered to constitute a continuation of the previous or marital relationship’ (paragraph 34).

Comment from CPAG

This decision contains a considered review of previous authority, including (in addition to R(IS) 5/05) the decisions in CPC/683/2007, CH/117/2005 and CH/3777/2007, and will be a key authority on the approach to ‘estrangement’ in the context of Schedule 6. The claimant in this case is still able to argue her original point (ie, that the overpayment is not recoverable from her) at the new First-tier Tribunal.

Summary

The claimant worked as a self-employed gardener. There was some seasonal variation in that work (due to gardening work being scarcer in the winter). It was decided that the minimum income floor applied to him, and that as a result of the income from that he was not entitled to UC. The First-tier Tribunal rejected the claimant’s appeal. He appealed arguing, in effect, that the minimum income floor could not be applied to him as a seasonal worker, and that the application of it to him resulted in unfairness.

Judge Hemingway dismissed the claimant’s appeal. The minimum income floor was provided for at regulation 62 of the Universal Credit Regulations 2013, SI No.376. The legislation made no reference to seasonal work. Rather, in the UC context, the question was whether the claimant was ‘in gainful self-employment’, as defined at regulation 64. That also made no reference to seasonal work, and the only aspect of it that might be relevant to that is the requirement that the work is ‘regular’. Without having taken full argument on the point, the judge considered that it would be to go too far to conclude that in this context ‘regular’ meant work performed at a constant or almost constant frequency. Rather, the word would be ‘entirely appropriate to describe a business which conformed to a standard pattern even if that pattern had predictable or relatively predictable variations’ (paragraph 19). It was therefore open to the tribunal in this case to find, as it did, that the requirement for regularity was satisfied.

Regarding whether the minimum income floor was lawful in a wider sense, the judge was referred to the decision of the High Court in R (Parkin) v Secretary of State for Work and Pensions [2019] EWHC 2356 (Admin) (Bulletin 273, p9), in which it was held that the rule was not in breach of human rights or Equality Act provisions. Although the Upper Tribunal was free to depart from a High Court judgment if satisfied that it is wrong, Judge Hemingway was not so satisfied and in fact agreed with its reasoning and followed it (paragraph 20).

Comment from CPAG

The judge indicated that he agreed with the tribunal that the legislation did not define a decision to apply the minimum income floor as one which itself carried a right of appeal. The implication is that disputes about application of the minimum income floor should be made against the resulting outcome decision on entitlement.

Summary

The claimant accepted a claimant commitment which included that she would apply for vacancies she was told to apply for by her work coach. The work coach identified with the claimant that she should apply for the position of a part-time coffee assistant/barista in a coffee shop. The claimant did not apply for the post. On appeal against the subsequent high level sanction, she argued that she had ‘good reason’ for not applying, as the company’s website said that it expected its employees to have a ‘passion for coffee’, and as she did not have such a passion, any application from her would surely be ‘pointless’. The First-tier Tribunal rejected her appeal.

Judge Mitchell rejected the claimant’s further appeal on this point. Although the First-tier Tribunal had erred in failing to give adequate reasons. But that was not material in this case, as on the facts no reasonable tribunal could have found that the claimant had good reason for failing to apply for the vacancy because she had formed the view that, lacking a passion for coffee, any application would be pointless (paragraph 59). Parliament had enacted (in this case, at section 26 of the Welfare Reform Act 2012) a ‘good reason’ provision without providing a definition or any express guidance about its express meaning (paragraph 58). Evaluation of whether a claimant had good reason to apply for a vacancy s/he had been directed to apply for, said the judge, is always likely to include the claimant’s dealings with her/his work coach. The claimant ‘may have had a stronger case’ if she had asked her work coach to reconsider the direction to apply for the job before herself deciding not to do so (paragraph 60).

Further, said the judge, ‘a claimant’s belief that it would be pointless to apply for a particular vacancy, being a vacancy that she had previously agreed to apply for following discussions with a work coach, cannot in my judgement amount to a good reason for failure to apply where that belief is arrived at without any subsequent consultation with the official for the time being charged with assisting the claimant to obtain work (ie, the work coach)… in general, it would not be consistent with parliament’s purpose if, following a work coach interview at which a claimant raised no concerns about the appropriateness of a vacancy, the claimant could, without fear of sanction, subsequently decide for themselves would be pointless.’ (paragraph 61).

Comment from CPAG

It remains possible that a claimant’s view of the appropriateness of a job s/he has been directed to apply for could be relevant to whether s/he has good reason for failing to apply for it. But prior discussion of such concerns with the work coach will usually be very important to this. The individual facts will be crucial. Although not commented on specifically by the judge, lack of ‘passion’ for a job may very well be a difficult basis for a ‘good reason’ argument in any such case.

Summary

The claimant was a Polish national who came to the UK in 2008 and worked for over a year before becoming unemployed. She was refused HB on the basis that her only right to reside being a ‘jobseeker’ – ie, that she did not, for example, have a right to reside on the basis of retained worker status. The First-tier Tribunal held that she did have a right to reside on a retained worker basis for a period of time (in a period when seeking work and entitled to jobseeker’s allowance), but that period was limited to six months. This was because (under a rule often referred to as the ‘genuine prospect of work’ test) she was required to have a ‘genuine prospect’ of being engaged in work (with a need for ‘compelling evidence’ of that after six months), and that requirement was not satisfied.

Judge Wright allowed the claimant’s further appeal and substituted a decision that she was entitled to HB. That was because she had a right to reside on the basis of retained worker status. The tribunal had erred in applying the ‘genuine prospect of being engaged’ test to her, even though the domestic (UK) regulations provided for that. In those regulations, the requirement for there to be, regarding someone who has worked for over a year, a ‘genuine chance of being engaged’ in work (and the need for ‘compelling evidence’ of that after six months), as in regulation 6(2)(b)(ii) and (7) of the Immigration (European Economic Area) Regulations 2006, was unlawful. That was because it was contrary to European Union (EU) law, namely Article 7(3)(b) of Directive 2004/38/EC, which sets out when someone who has worked for over a year has a right to reside, and makes no provision for (at any time) a test of a ‘genuine chance of being engaged’ in work. It does require that person be in ‘duly recorded involuntary unemployment’ and has ‘registered as a jobseeker with the relevant employment office’, but makes no further requirement than that.

The judge did not doubt that a test after six months of seeking employment of having a ‘genuine chance of being engaged’ was legitimate in its application to right to reside merely as a ‘jobseeker’ – ie, those who had not previously worked (referred to by the judge as ‘pure workseekers’). The language of such a test was coined in R v Immigration Appeal ex parte Antonissen (Case C-292/89) [1991] ECR I-00745. But that was about ‘pure workseekers’ and was ‘not an authority in respect of those who have moved to and worked in a member state for over a year who then become involuntarily unemployed’ (paragraphs 55–57). The judge could find nothing in other relevant authorities ‘which provides a general rule of EU law that means satisfaction of Article 7(3)(b) requires that the person must have a genuine chance of being engaged in employment’. The tribunal therefore erred in applying the test provided for in regulation 6(2)(b)(ii) and (7) of the regulations (paragraphs 65–67).

Comment from CPAG

In effect, this decision (not limited to HB) holds that the so-called ‘genuine prospect of work’ test, or ‘GPOW’, is unlawful in so far as it is applied at any point to claimants now unemployed but who previously had worked for more than a year. It will apply regarding the identical wording used in regulation 6 of the current (2016) version of the Immigration (European Economic Area) Regulations. By parity of reasoning, and in the light of the Court of Justice of the European Union decision (regarding the treatment of self-employed claimants) in Gusa, C-442/16, it should also apply to claimants who had been self-employed for a year or more before claiming as unemployed. However, the decision is not authority that the genuine prospect of work test is unlawful regarding the right to reside merely as a jobseeker.

Summary

The claimant (who had learning and language difficulties) submitted an online claim for UC. Eventually, he was informed via his online journal that his claim had been ‘closed’ as ‘you didn’t book your appointment’. The Firsttier Tribunal refused to admit the claimant’s appeal against that, on the grounds that the claimant had failed to provide a mandatory reconsideration notice regarding the decision to ‘close’ the claim.

Judge Wikeley allowed the claimant’s appeal against the refusal to admit the appeal, held that the appeal should be admitted and remitted the case to a First-tier Tribunal. The DWP had made a decision refusing entitlement to UC (confusingly couched as a ‘closure’ of the claim) and legitimately communicated that online (ie, via the journal). However, the decision made no reference to the claimant’s need to have a mandatory reconsideration before he could appeal. Therefore (under regulation 7 of the Universal Credit (etc) (Decisions and Appeals) Regulations 2013, SI 2013 No.381), the claimant did not have to have requested a mandatory reconsideration before he had the right of appeal, and the tribunal had therefore been wrong to refuse to admit the appeal (paragraphs 24–25, 30).

Regarding the ‘closure’ of the claim, the judge pointed out that this language had no basis in the legislation although – as conceded by the Secretary of State – official guidance frequently referred to this process. In law, it was a refusal of entitlement to UC (in this case because the claimant had failed to satisfy the income conditions by failing to provide further evidence of his self-employed income). The interview the claimant was required to attend was not in fact a condition of a claim, but an information requirement: as the judge said, ‘any interview regarding self-employment that is felt to be necessary is then requested as part of the Secretary of State’s investigation of the claimant’s entitlement under a claim that has already been properly made’ (paragraph 40). It was, therefore, said the judge, ‘overly simplistic to say that the appellant’s case was closed because he had failed to attend an interview about his self-employment. On a proper legal analysis, his universal credit claim was disallowed because he had not shown that he satisfied the financial condition of entitlement for a single person (see section 5(1)(b) of the Welfare Reform Act 2012)’ (paragraph 43). That was therefore an appealable decision about entitlement, the claimant had indicated in writing his disagreement with that within a month, and so (given the absence of a mandatory reconsideration requirement on the facts of this case) his appeal was validly made.

Comment from CPAG

Given the common DWP practice of ‘closing’ a claim for UC, this decision provides very helpful authority on the true legal nature of such a ‘closure’ and in particular of the right of challenge by appeal. Whether a mandatory reconsideration requirement applies will depend on whether such a requirement is stated on the ‘closure’ of the claim.

Summary

The claimant was entitled to ESA. She was subject to a repeat work capability assessment and was sent an appointment letter to attend a medical. The claimant did not attend that medical, her reasons for not doing so were not accepted as constituting good cause, and her ESA entitlement was terminated. Following mandatory reconsideration, she appealed but the First-tier Tribunal rejected her appeal.

Judge Poynter allowed the claimant’s further appeal and substituted as decision that she had not, as a matter of law, ‘failed’ to attend the medical. The tribunal had erred in failing to establish that the claimant was under a legal obligation to attend the medical so that failure (without good cause) to do so could lawfully lead to the termination of her ESA. Firstly, held the judge: ‘It was not in dispute that the claimant did not attend for examination. But did she “fail” to do so? The two are not the same. The difference is that one can only “fail” to do something one is under an obligation to do’ (paragraph 27). Further, that obligation must be a legal obligation (and not, for example, merely a moral one).

There was a clear line of authority that before the Secretary of State could penalise a claimant for not doing something, the claimant must have told the claimant unambiguously that the thing must be done and what must be done. ‘In short,’ said the judge, ‘there needs to be “the language of clear and unambiguous mandatory requirement” and there needs to be “crystal” clarity’ (paragraph 57). Invitation, encouragement and ambiguity do not impose a legal obligation. In this case, the tribunal erred in that it did not have either the relevant appointment letter, or a specimen of the standard letter that would have been sent, before it. It could not have been satisfied that the claimant was under a legal obligation and should not have decided the appeal against her (paragraphs 79–83). Further, having been given recourse to the standard appointment letter that would have been sent, the judge considered that its language was not sufficiently unambiguous so as to impose a legal obligation (and so the claimant’s appeal must succeed as she could not have ‘failed’ to attend). The letter told the claimant that ‘It is important that you attend this appointment’, but that was clearly not sufficient notification of what had to be done. It also said: ‘You could lose your ESA payments and/or national insurance credits if you don’t go to your work capability assessment’. But that was still ambiguous as it did not get over that failure to attend certainly would (without good cause) result in loss of benefit; phrases such as ‘you must attend’ or ‘the law says you must attend’ would be better (paragraphs 93–104).

Comment from CPAG

The judge also had references to similar decisions regarding alleged ‘failure’ to attend personal independence payment medicals in OM v Secretary of State for Work and Pensions (PIP) [2017] UKUT 458 (AAC) and IR v Secretary of State for Work and Pensions (PIP) [2019] UKUT 374 (AAC). The present decision is consistent with those (and, unlike IR, in which the language of the appointment letter was formally obiter, is substantive authority for the need for the instruction to the claimant to be very clear and unambiguous).

Summary

The claimant’s health problems included severe chronic depression and anxiety, post-traumatic stress disorder and chronic diarrhoea. He was held not to have limited capability for work. The First-tier Tribunal allowed his appeal against that decision, but declined to place him in the ‘support group’, holding that he did not also have ‘limited capability for work-related activity’. In particular, it did not consider that regulation 35(2) of the Employment and Support Allowance Regulations 2008 applied, as it did not consider there was a ‘substantial risk’ to health arising from any appropriate work-related activity he might be required to undertake. Regarding that, the tribunal relied on a ‘soft skills’ list of potential work-related activity, submitted by the Secretary of State.

Judge Wright allowed the claimant’s further appeal and substituted a decision that the claimant had limited capability for work-related activity on the basis of ‘substantial risk’. The ‘soft skills’ list (which included activities such as setting an alarm clock) did not, as it ought to have shown following IM v SSWP [2014] UKUT 412 (AAC), reported as [2015] AACR, set out the most onerous forms of work-related activity available in the appellant’s area. But even assuming that the list of work-related activities was complete, the tribunal’s reasoning could still be criticised on the basis that ‘it did not sufficiently address the likelihood of the appellant having to participate in the minority of the soft skills activities which, on the face of it, the tribunal considered the appellant could not do without substantial risk to health’. Further, the tribunal’s reliance on the appellant’s ability to learn to get to places of work-related activity and being accompanied in that period of learning failed to take into account the likelihood of the appellant being able to have a companion to accompany him on the first few instances when he was required to undertake work-related activities that required him to travel (PD v SSWP (ESA) [2016] UKUT 148 (AAC), MP v SSWP (ESA) [2016] UKUT 502 (AAC) and KN v SSWP (ESA) [2016] UKUT 521 (AAC) cited). The tribunal also erred more fundamentally in law in proceeding on the basis that all relevant forms of work-related activity appeared in the ‘soft skills’ list put before it by the Secretary of State. It ought to have doubted this, given the absence of work placements from the list. As conceded by the Secretary of State, the tribunal was ‘materially misled by her failure to put before it an accurate and complete list evidencing the most (and least) onerous forms of work-related activity the appellant may have been required to undertake’ (paragraphs 15–18).

Regarding use of the ‘soft skills’ lists more generally, the Secretary of State told the judge that the practice of making them the list of work-related activities submitted to tribunals had now ceased, and accepted that ‘this was always an inaccurate list, lacking as it did the more and most onerous forms of available work-related activity (including work placements)’ (paragraph 37) The ‘soft skills’ list ought not in fact have appeared in any ESA work capability appeal after January 2018, but the judge was not satisfied that the practice had ceased then and remarked that: ‘First-tier Tribunals will need to investigate with conspicuous care any work capability assessment appeals in which the ‘soft skills’ list is put forward as evidence of the available work-related activity’ (paragraph 42).

Comment from CPAG

The judge took evidence from the claimant’s representative that lists of work-related activity submitted by the Secretary of State often remained incomplete or (regarding identical rules for universal credit) not submitted at all. This despite authority on what is required now stretching back years. With evident restraint, the judge commented: ‘It is sincerely hoped that this decision will mark the end of the Upper Tribunal needing to examine the adequacy of the information the Secretary of State provides to First-tier Tribunals in appeals in which regulation 35(2) of the ESA Regulations (or its universal credit counterpart) may be in issue’ (paragraph 3).

Summary

The claimant’s appeal concerned whether he was capable of work-related activity – ie, whether he should be placed either in the ‘work-related activity group’ or the ‘limited capability for work-related activity group’ for UC. In particular, the tribunal was required to consider whether the ‘substantial risk’ provision at paragraph 4 of Schedule 9 of the Universal Credit Regulations 2013 (SI No.376), under which a claimant is treated as having limited capability for work-related activity if there is ‘substantial risk’ to health if the claimant is not so treated, applied.

Judge Wright allowed the claimant’s further appeal against the decision of the tribunal and remitted the case to a new tribunal. The tribunal had erred in basing its decision on ‘materially deficient evidence of work-related activity which did not include a work placement as a possible form of work-related activity’ (paragraph 1). As a result, the tribunal had failed to give proper consideration to the most onerous forms of work-related activity the claimant might be expected to undertake. The tribunal had no direct evidence of such work-related activity, and had in fact relied on statements in the decision maker’s submission to the tribunal. But, held Judge Wright: ‘The phrase in the appeal response, “Examples of the most demanding types of Work Related Activity (WRA) in the area where you live would be as per programmes provided by Remploy and Kennedy Scott”, is virtually useless as providing clear evidence to the reader of it of what in fact the most onerous work-related activity could actually involve the appellant in undertaking’ (paragraph 2).

The judge accepted the Secretary of State’s support for the claimant’s appeal, which included acceptance that the judge’s own decision in an ESA case, KC and MC v SSWP (ESA) [2017] UKUT 94 (AAC), applied to UC as well, so that a tribunal must have adequate or relevant evidence before it of the work-related activity the claimant might be expected to undertake, which identifies the most and least demanding such activity. That had been adopted in official guidance in DMG Memo 01/18, where it is confirmed that where the decision under appeal was made on or after 3 April 2017, the appropriate list of work-related activity should be under the Jobcentre Plus offer, included in the appendix to the memo. The judge re-stated previously expressed concern that such guidance was not being followed. The relevant UC rules were substantially the same as the relevant ESA rules. The judge said: ‘The evidence of the Secretary of State in MR v SSWP (ESA) [2020] UKUT 210 (AAC) was clear. By January 2018 the work-related activities list exhibited in all appeal responses should have included “work placements” (as set out in DMG Memo 01/18). That, as the Secretary of State now concedes, ought to have been the case in this universal credit appeal’ (paragraph 7).

Comment from CPAG

The judge’s confirmation that the relevant ESA caselaw should also apply to UC ‘substantial risk’ appeals, though useful, is not surprising. However, it should be surprising that the need for adequate and relevant evidence of work-related activity which the claimant might be expected to undertake is still not being properly observed. The judge’s concern on this matter (see also MR v SSWP (ESA)) clearly remains relevant.

Summary

The claimants were a couple with capital (about £25,000) from the sale of their previous homes. They were refused UC because their capital was above the £16,000 capital limit. Following mandatory reconsideration, their appeal was refused by the First-tier Tribunal. The tribunal refused to apply the rule (at paragraph 13 of Schedule 10 of the Universal Credit Regulations 2013, SI No.376) that the capital could be disregarded where it is an amount ‘…received in the past six months which is to be used for the purchase of premises that the person intends to occupy as their home where that amount…is attributable to the proceeds of the sale of premises formerly occupied by the person as their home…’. The tribunal said that the words ‘which is to be used’ required more than a mere hope or wish to use the money to buy another home, but must have ‘an intent’ to buy, be ‘actively seeking’ to do so and have a ‘reasonable prospect’ of doing so. 

Judge Poynter refused the claimant’s further appeal, holding that the tribunal had not materially erred in law (although it had made errors). He considered caselaw on the meaning of the words ‘which is to be used’ (from different benefits but regarding the same wording). In particular, in R(IS) 7/01 it had been held that the essence of the test was ‘an element of certainty’ that the capital would be used to buy a home; and that it must be ‘reasonably certain’ that a home would be purchased within the relevant time. However, Judge Poynter noted that in Re B (Children) [2008] UKHL 35, the House of Lords held that ‘that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not.’ Judge Poynter emphasised the distinctly different test envisaged there: ‘The civil standard of proof does not involve any form of certainty. It is about “whether a fact more probably occurred han not”. Although it is usually unhelpful to reduce the standard to percentages, it is illustrative in this case that the civil standard is satisfied if there is a 50.1 per cent chance that the money will be used to buy a new home and a 49.9 per cent chance that it will not. That is a very long way from any form of “certainty”, no matter what adjective is used to qualify that word’ (paragraph 30). To the extent that R(IS) 7/01 (and similar authority) required a test anything other than the balance of probabilities, the judge declined to follow it (paragraph 34).

Turning to what the tribunal in the present case had done, it had erred in law in holding that an ‘intention’ to use the capital to purchase a new home was the test; referring to a need for the claimant to be ‘actively seeking’ to purchase a property, and in requiring a ‘reasonable prospect’ of acquiring a property. The correct test was whether the capital ‘is to be used’ for that purpose. But it remained that the tribunal had not materially erred in law, because the decision would have been the same even applying the correct test. That was because the evidence showed that the claimants would be unable to get a mortgage (due to debt problems) and so, given that the amount of capital was not in itself enough to buy a home, the claimants could not establish that it was more probable than not that the capital would be used in that way.

Comment from CPAG

The departure from the test in R(IS) 7/01 of some ‘certainty’ and replacement with a ‘more probable than not’ test is significant. It may assist claimants who are unable to point to, for example, accepted purchase offers or written agreements, although the individual facts will be crucial.

Summary

The claimant’s landlord was her son. He had bought the property and had been renting it out to the claimant, with a formally drawn-up tenancy agreement, since 2000. Until 2013, rent was paid in full. From that point, partly due to a drop in income caused by retirement, the claimant began building up rent arrears. The son took no action to enforce the arrears or to evict the claimant. She claimed HB in 2015. That claim was refused by the local authority on the basis that tenancy was not on a commercial basis. The First-tier Tribunal allowed the claimant’s appeal. The local authority appealed to the Upper Tribunal.

Judge Poynter formally set the decision aside but substituted a decision to the same effect as that of the First-tier Tribunal – ie, that the tenancy was on a commercial basis and so the claimant was not excluded from HB. The tribunal had erred in not having regard to the rent arrears before the claim was made as a separate matter to subsequent rent arrears, but on the facts that did not change the conclusion that the tenancy was on a commercial basis.

The relevant rule in this case was at regulation 9 of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006, SI No.214. That includes that the claimant is not regarded as liable for rent if ‘the tenancy or other agreement pursuant to which he occupies the dwelling is not on a commercial basis’. In this case, the local authority relied on what Judge Poynter called ‘trump-card’ facts (namely, the accrual of rent arrears before the claim, with the landlord not undertaking eviction proceedings), and the ‘notional commercial landlord’ who would not fail to act in that way. But both such approaches were wrong: the first by seizing on one particular fact to the exclusion of others, the second by positing that there is only one way for a landlord to behave in order for the tenancy to be commercial. As set out in R(H) 1/03, the commerciality of a tenancy is not a ‘primary’ fact, but rather a ‘compound’ fact – ie, a judgement that has to be reached with regard to all the relevant facts in the case. So the fact that a landlord had allowed rent arrears to accrue may be a relevant factor, but ‘it will usually be only one of many factors and must still be weighed against the others in the context of the evidence as a whole’ (paragraph 34). Regarding landlords, they were not identically motivated and were not a homogenous group: in R(H) 1/03 it had been pointed out that ‘Rachman is not the only model of a commercial landlord’. The judge held that the tribunal was right to hold that: ‘The test is whether the tenancy is not on a commercial basis. It is not whether the landlord is in business as a commercial landlord’ (paragraph 53).

The facts in this case showed, on balance, that the tenancy was commercial. The facts included that the rent had been paid without fail for many years prior to arrears starting to accrue, that the agreement remained legally enforceable, that some irregular payment had continued and that there was at least the possibility that the claimant’s ability to pay might improve, due to a possible increase in her husband’s earnings. The fact of applying for HB was in itself an attempt to improve her ability to pay the rent. The mere fact of applying for HB could not in itself be proof of non-commerciality. Although the judge accepted that a commercial tenancy could in some circumstances change to become uncommercial (and vice versa), he doubted – contrary to previous authority (R(H) 10/05) – that those circumstances included where the landlord did not take eviction action, as the correct focus had to be in the ‘agreement’ concerned. But even if landlord inaction could count as a change, on the facts of this case again that still did not mean the tenancy had become uncommercial.

Comment from CPAG

This extensively reasoned decision will be a key authority where there is a question about whether a tenancy is on a commercial basis. It is a forceful reminder that not all landlords have to be motivated by profit alone or be ruthless about enforcement for an agreement to be and remain commercial. The use of ‘trump facts’ and of the ‘notional commercial landlord’ is emphatically rejected as erroneous. As the judge indicated, there may need to be further authority on exactly when the commerciality of an agreement may be regarded as having changed.

Summary

The appellant was entitled to HB and employment and support allowance, and to tax credits with his partner. Following receipt of a notice to quit their rented accommodation, the couple moved on 24 September 2018 to a new local authority area, and later (as instructed by their new local authority) made a claim for UC. The claim was made on 22 October 2018. Their request for backdating to 24 September was refused. The First-tier Tribunal refused the subsequent appeal.

Judge Jacobs allowed the claimant’s further appeal, and substituted a decision that the UC claim should be ‘backdated’ to 24 September. That was because, under regulation 26 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013, SI No.380, a claim can be ‘backdated’ (ie, the time for claiming formally extended) where the claimant could not reasonably be expected to have claimed earlier, one or more specified circumstances applies, and the judge considered that one of those circumstances applied.

Specifically, at subparagraph (3)(aa) of regulation 26, one of those circumstances is where ‘the claimant was previously in receipt of an existing benefit (as defined in the Universal Credit (Transitional Provisions) Regulations 2014) and notification of expiry of entitlement to that benefit was not sent to the claimant before the date that the claimant's entitlement expired’ (paragraph 4).

HB was an ‘existing benefit’. The judge accepted a submission made by the Secretary of State that notification of the expiry of ‘entitlement to housing benefit’ should be taken only to have been when the claimant’s new local authority told them that they would need to claim UC rather than HB. The date of that notification was after their actual entitlement (ie, as paid by their old local authority) had ended, following their move to the new local authority area on 24 September. Therefore the terms of regulation 26(3)(aa) were satisfied. Further (as per the Secretary of State’s submission): ‘The couple could not reasonably be expected to claim universal credit until the appellant had been made aware that he could no longer claim housing benefit, and they he [sic] did not unreasonably delay his claim for universal credit once they became aware of their position’ (paragraph 8).

Comment from CPAG

Backdating of UC is on very limited grounds, but this decision contains (via the Secretary of State’s own submission) a helpful application of one of those grounds that should apply in many cases where a claimant has moved to new local authority and has lost entitlement to HB.