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Summary

The local authority decided that an overpayment had occurred and it was to be recovered from the person to whom it had been paid, which in this case was the landlord. The overpayment arose because the claimant was awarded HB at the self-contained bedroom rate, when it should have been awarded at the (lower) shared accommodation rate. This was because of incorrect information given by the claimant on his claim form. The landlord appealed and his appeal was dismissed by the First-tier Tribunal, who arranged and conducted the appeal as if it were solely between the landlord and the local authority – ie, with no attempt to include the claimant as a second respondent to the appeal.

Judge Poynter (having formally joined the claimant as a second respondent) allowed the landlord’s further appeal and substituted a decision that the overpayment was not recoverable from him and was instead recoverable from the claimant (AT), as the person who had caused the overpayment by misrepresenting a material fact. The tribunal had gone wrong in not realising that the claimant should have been listed as a second respondent, and in consequently failing to consider regulation 101 of the Housing Benefit Regulations 2006, SI No.213, which makes provision as to from whom an overpayment of HB is recoverable. Subject to a rare exception regarding computer error, all HB overpayment decisions involve a decision that the claimant was not entitled in some way, decisions on entitlement must be formally notified, and once that is realised, ‘it becomes obvious that the claimant – to whom that award was, after all, made – needs to have a right of appeal against it’ (paragraph 47). Regulation 101(2) may (depending on the facts) mean that the overpayment is recoverable both from the landlord and the claimant or, in cases of failure to disclose or misrepresentation of a material fact, the person who so failed to disclose or misrepresented, and all those from whom the overpayment were recoverable must be given a decision about that (R(H) 6/06 applied and approved). The tribunal had erred in failing to apply this.

The judge set out some basic principles regarding appeals in which HB has been held to be recoverable from the landlord (paragraph 3), which (here in summary form) are:

‘(a) The claimant is always the second respondent to an appeal made by a landlord… It is not necessary for the First-tier Tribunal to give a direction…to bring it about.

(b) Although the circumstances in which a landlord can appeal against a HB decision are limited, where those circumstances exist, the landlord’s right of appeal is not limited and he is entitled to raise all relevant issues of fact and law. In particular, a landlord appealing against a decision that an overpayment is recoverable from him is not restricted to arguing that the overpayment is not recoverable, or is not recoverable from him…

(c) In an appropriate case, a landlord who brings such an appeal is entitled to a decision that a recoverable overpayment is recoverable from him and the claimant jointly rather than from him alone.

(d) If the circumstances specified in regulation 101(2)(b) or (c) of the Housing Benefit Regulations 2006 (the HB Regulations) exist, a landlord who brings such an appeal is potentially entitled to a decision that a recoverable overpayment is not recoverable from him but is solely recoverable from the claimant (or some other person).

(e) In the absence of a specific direction…the First-tier Tribunal has no power to refuse to consider relevant evidence merely because it confidential information about people who are not parties to the appeal. All relevant evidence is admissible and, in the absence of such a direction, must be taken into account… .’

Comment from CPAG

As noted by the judge, there is nothing actually novel in the legal principles and requirements identified in this decision. However, those principles and requirements are set out with great clarity in a context in which it seems that confusion can easily arise, and the decision will therefore be key in appeals concerning recovery of overpaid HB from a landlord.

Summary

The claimant had chronic fatigue syndrome and was entitled to the high rate of disability living allowance (DLA) mobility component. She lived in a privately rented studio flat. The local authority limited her HB to the one-bedroom shared accommodation rate of the local housing allowance (LHA), as mandated by regulation 13D(2) of the Housing Benefit Regulations 2006, SI No.213. She was paid discretionary housing payments (DHPs) for the shortfall in her rent. On appeal, she argued that the limitation on her HB discriminated against her on the grounds of disability, in particular as a wheelchair user with greater difficulty finding shared accommodation. That was contrary to Article 14 of the European Convention on Human Rights in conjunction with Article 1 of Protocol 1, and the principle (requirement to treat a person differently in order to avoid discrimination) in Thlimmenos v Greece [2001] 31 EHRR 411. The First-tier Tribunal dismissed her appeal, holding that her treatment was justified as ‘not manifestly without reasonable foundation’.

Judge Najib rejected the claimant’s further appeal, holding that the tribunal had not erred in law. Following the decision in R (DA) and R (DS) v Secretary of State for Work and Pensions [2019] UKSC 21, the ‘manifestly without reasonable foundation’ test remained the correct test of justification in alleged discrimination cases, and not the ‘objective and reasonable justification test’ identified by the European Court of Human Rights in JD and A v the United Kingdom [2020] HLR 5. A number of subsequent decisions had reaffirmed that. However, subsequent authorities (eg, R (TD, AD and Reynolds) v Secretary of State for Work and Pensions [2020] EWCA Civ 618) had identified the relevance of proportionality to the test. The judge considered that, in the light of these authorities, ‘… whilst the sole legal question is whether the difference in treatment is “manifestly without reasonable foundation”, the answer to that question is to be found by considering whether the difference in treatment arising from the relevant measure is “manifestly disproportionate to its legitimate aim”. If it is manifestly disproportionate, it is manifestly without reasonable foundation, and vice versa’ (paragraph 75).

The official aims for introducing the shared accommodation rate were legitimate. Applying the approach taken by the Supreme Court to justification issues regarding the ‘bedroom tax’ in R (Carmichael and Rourke) v Secretary of State for Work and Pensions [2016] UKSC 58, the judge considered that: ‘the key issue is whether the need of a disabled person in the Appellant’s position (ie, a wheelchair user) to remain in an existing property is connected to (i) a transparent medical need for single-occupancy one-bedroom accommodation (ie, a transparent medical need which prevents them from sharing a bedroom); or (ii) some other reason which requires “individual evaluation” on a case-by-case basis. In the Appellant’s case, I am satisfied that it is the latter’ (paragraph 83). That indicated the suitability of DHPs as a solution, rather than unlawfulness. The judge was therefore satisfied that ‘…in the context of the scheme as a whole and, in particular, in light of the availability of DHPs on case-by-case basis, the adverse impact of regulation 13D(2) on the Appellant and those in her position is not “manifestly disproportionate to its legitimate aim”. It is therefore not “manifestly without reasonable foundation”’ (paragraph 85).

Summary

The claimant was found to have failed the work capability assessment and so considered not to have limited capability for work. She had scored some points for being unable to get to an unfamiliar place without being accompanied by another person. On appeal, the First-tier Tribunal found that the ‘substantial risk’ exceptional circumstance (located, in the UC context, at paragraph 4(1) of Schedule 8 to the Universal Credit Regulations 2013, SI No.376) did not apply to the claimant. That was because the tribunal considered that the risk to the claimant’s health of travelling on an initially unfamiliar journey to a new job could be negated by the claimant’s being accompanied by a friend or family member. The tribunal did not consider whether there might be a substantial risk to the claimant (having been found fit for work) having to travel to and from the job centre.

Judge Wright allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred in assuming, rather than actually establishing on the evidence, that the claimant could in practice actually be accompanied by a friend or family member on an initially unfamiliar journey to a new job (so that the risk to her health would be negated). As had been held (regarding a similar question in the context of limited capability for work-related activity) in MP v SSWP (ESA) [2016] UKUT 502 (AAC), the tribunal must enquire into the actual availability of the third-party support, and not simply assume that it will be available.

Also, the tribunal had erred in failing to consider the risk to the claimant’s health from travelling to and from the job centre. Such a risk could be relevant to whether the claimant is held to have limited capability for work by virtue of the ‘substantial risk’ rule. In so holding, he addressed a split in the caselaw authority. In NS v SSWP (ESA) [2014] UKUT 115 (AAC), reported as [2014] AACR 33, Judge White had endorsed the finding of Judge Mark in IJ v Secretary of State for Work and Pensions (IB) [2010] UKUT 408 (AAC) that the relevance of considering whether substantial risk arises (as per the rule) from the claimant being found not to have limited capability for work meant that health problems of having to take part in interviews at the job centre could be relevant. That approach had been rejected by Judge Lane in MW v SSWP (ESA) [2015] UKUT 665 (AAC), who held that as a matter of law the only relevant risks were those associated with finding work, travel to and from that work and (in rare cases) the reaction to the ‘fit for work’ finding. That was based on Judge Lane’s reading of the Court of Appeal’s decision in Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42. However, in the present decision Judge Wright held that MW was wrongly decided and declined to follow it. Apart from the fact that NS was reported authority and that other authorities (eg, JT v SSWP (ESA) [2018] UKUT 124 (AAC)) had followed that rather than the approach in MW, the approach in NS and in IJ was correct as a matter of statutory construction. The judge held: ‘The test is not a narrower one of “were the claimant found work or a job”. It is a wider test founded on a forward-looking exercise of considering the rational evidential consequences that may arise if the claimant is found not to have limited capability for work and the risks to health that may arise from those consequences because of the claimant’s ill health’ (paragraph 28). The test did not exclude taking into account travelling to and from the job centre and ‘engaging with others in so doing and at the job centre or job interview’ (paragraph 29).

Comment from CPAG

This decision should settle any remaining doubts as to the balance of authority on whether ‘substantial risk’ from travelling to the job centre and taking part in relevant interviews may be relevant. The balance of that authority is clearly that such matters can be relevant, in the context both of UC and employment and support allowance and the tests of limited capability for work and limited capability for work-related activity.

Summary

The claimant became entitled to UC in September 2017. In his October and November 2017 and January and February 2018 assessment periods, he received late payments of wages from his employer, representing unpaid wages and holiday pay, and also the return of a deposit he had paid on his uniform at the start of his employment. His employer was a ‘real time information’ employer. The treatment of late paid wages and whether the return of the deposit constituted earnings were the subject of dispute at the First-tier Tribunal.

Judge Jacobs held that the original decisions of the Secretary of State, treating the late paid wages as earned income in the assessment periods in which they were received (and reported under the real time information requirements), was correct. In particular, the wages were not to be attributed to the earlier assessment period in which they were due.

The relevant regulation was regulation 61 of the Universal Credit Regulations 2013, SI No.376. The claimant’s representative argued that the default position, at regulation 61(2)(a), that employed earnings for an assessment period are based on the information reported by the employer to HM Revenue and Customs (HMRC) and passed on to the Secretary of State in that assessment period, should not apply. That was on the basis that the payments were not timely and so, as per the exception in subparagraph (3)(a), the information from the employer was ‘unlikely to be sufficiently accurate or timely’. But Judge Jacobs rejected that, holding that: ‘It is not the payment that has to be timely. It is the information from the employer that must be “unlikely to be … timely”. The information is the amount of the employed earnings for each assessment period. That does not mean that the earnings had to be earned in the period. As the claimant’s representative accepted, earnings almost always relate to past periods…The employer correctly reported the amount that was paid. The information reported to HMRC and passed to the Secretary of State was correct. This was done timeously. Regulation 61(3)(a)) does not apply’ (paragraph 13). Similarly, there was no basis for the exception in subparagraph (3)(b)(ii), which applies where the information received (ie, regarding the earnings) is ‘incorrect’. The judge held: ‘The information was correct… Again, the important word is information. The information is the amount that the claimant was paid and it was correctly reported. Matters relating to the timing of the payment, and the willingness or lack of it with which it was paid, are irrelevant to this provision’ (paragraph 14). There was no unlawful irrationality about the rules in this context: ‘The claimant received a late payment of wages in two assessment periods and had that money available to meet that need. When he received no wages, he was paid universal credit. That shows a system that is flexible in responding to changing circumstances and paying out public money when it is needed, but only then’ (paragraph 16).

The judge agreed with the concession of the Secretary of State that the First-tier Tribunal made an error of law by treating the amount of deposit as earned income. ‘As the representative succinctly submitted,’ said the judge, ‘a refund of money previously paid by an employee to their employer does not, I submit, fall within that section and is not employed earnings. I accept that’ (paragraph 9).

Comment from CPAG

Although the decision was held up to await the decision of the Court of Appeal in Secretary of State for Work and Pensions v Johnson [2020] EWCA Civ 778 (Bulletin 277, p10), the judge did not think that decision could assist the claimant. The Johnson decision concerned an irrational lack of flexibility in the context of a ‘double payment’ of monthly salary; the judge did not think that arose in the present (different) context of late paid wages where he considered the rules were appropriately flexible.

Summary

The claimant was paid earnings on a four-weekly basis. She received 13 payments of wages in a 12-month calendar period. In one UC assessment period, she received two payments of her four-weekly wages. The DWP took both those payments into account as earnings during the single assessment period in which they were received. The claimant appealed, arguing that was wrong given the decisions in Secretary of State for Work and Pensions v Johnson [2020] EWCA Civ 778 (regarding two lots of calendar-monthly paid wages received in a single assessment period) and in R (Pantellerisco) v Secretary of State for Work and Pensions [2020] EWHC 1944 (Admin) (regarding benefit cap exemption and two lots of four-weekly paid wages in a single assessment period). The First-tier Tribunal rejected her appeal, holding that on the facts neither Johnson nor Pantellerisco applied.

Judge May rejected the claimant’s further appeal. The tribunal had been right to hold that on the facts neither Johnson nor Pantellerisco applied in this case, as the circumstances in those cases were ‘substantially different’ (paragraph 9). The relevant rule, at regulation 54(1) of the Universal Credit Regulations 2013, No.376, expressly provided that (subject to specified exemptions) earned income was to be taken into account in the assessment period in which it was received. The claimant had asserted that, although based on different facts, the Johnson and Pantellerisco decisions meant that the treatment of her wages was wrong, but had made no specific submission on what should then happen. It appeared to the judge that the claimant was in effect seeking to have one of the payments received excluded. ‘That,’ said the judge, ‘I am not prepared to do as it flies in the face of what the regulation actually says’ (paragraph 13).

The judge agreed with the Secretary of State’s submission that Johnson did not apply, as in that case the claimant was paid calendar-monthly, had received two payments of wages in the one assessment period due to a ‘non-banking day salary shift’ and had lost out on the work allowance, none of which applied here. He also agreed that in Pantellerisco the issue was that the claimant, because of a pattern of receiving two lots of four-weekly wages in one assessment period, lost out on the benefit cap exemption at regulation 82 of the Universal Credit Regulations 2013, and again that did not apply in this case. Although the judge was aware that the decision in Pantellerisco was currently under appeal to the Court of Appeal, given these findings he saw no point in delaying making a decision in this case.

Comment from CPAG

The judge made no attempt to criticise the decisions in Johnson or in Pantellerisco. Rather, as was also the case in NM v SSWP [2021] UKUT 46 (AAC), the particular facts of the case meant that they did not apply, and instead the default position of taking earned income into account in the assessment period in which it is received did. The Court of Appeal has now heard submissions in Pantellerisco, and a decision is awaited.

Summary

The claimant was 82 years old. He and his wife had been required to leave their accommodation at their daughter’s house and had recently moved into rented accommodation and claimed HB. In his claim, the claimant correctly disclosed his teacher’s monthly occupational pension. The local authority erroneously treated the monthly figure as an annual figure, leading to an overpayment. Although wholly caused by official error, the local authority decided that the overpayment was recoverable. It claimed that the claimant could reasonably have been expected to identify the error in the calculation sent to him allegedly explaining how his HB had been calculated and realise he was being overpaid. That decision was upheld by the First-tier Tribunal.

Judge Perez allowed the claimant’s appeal and substituted a decision that the overpayment was not recoverable from him. The tribunal had erred in giving inadequate reasons, making inadequate enquiry and findings about the question of whether the claimant could reasonably have been expected to have realised he was being overpaid. The overpayment had been caused by official error to which the claimant had not contributed. On the facts (including the claimant’s age and personal circumstances, as well as the unclear notification of his entitlement), he could not reasonably be expected to have realised he was being overpaid. Under the relevant rule at regulation 81 of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006 No.214, the overpayment was not recoverable.

The First-tier Tribunal had held that the claimant should have spotted the local authority’s error in treating the monthly pension as an annual one in the entitlement letter sent by the local authority. The claimant had argued that he could not reasonably have done that, as he was 82 years old, was ‘drowning in paperwork’ having had to move home and register changes of address multiple times, and that the letter about his entitlement had ‘bundles of figures’ which did not make the error clear. Judge Perez agreed with the claimant. The length, layout and font of the letter, the fact that the instruction to check the figures used was not clearly shown, with many figures being broken down by the local authority and used in ways in which the claimant had not used them, all meant that the tribunal had erred in not explaining why it considered that the error was clearly displayed in the entitlement letter. Further, the tribunal seemed to have placed reliance on the claimant having been a lecturer, without actually considering what the claimant was lecturing in, which was bricklaying. The tribunal had also failed to enquire into, and make findings of fact about, other relevant issues, including his age, his state of health, his feelings about being drowned in paperwork and the possible confusion from how what he had called his ‘teacher’s pension’ was categorised as an occupational pension. These, and other factors including that he and his wife had just been obliged to move house and claim HB for the first time, meant that the claimant could not have been expected to have realised he was being overpaid. The overpayment was therefore not recoverable from him.

Comment from CPAG

Advisers may find the local authority’s argument that the claimant should have spotted the local authority’s error a very familiar one. It should be surprising that tribunal should agree where the facts, as here, very clearly indicate otherwise. The decision is rooted in the particular facts, but some of those, including the complexity of the local authority entitlement letter and the claimant’s difficulty in comprehending it, are common.

Summary

The claimant was entitled to both components of personal independence payment (PIP) at the standard rate. On 7 November 2020, due to the Covid-19 pandemic, the duration of those awards was extended to 16 July 2022 (‘the extension decision’). On 18 May 2022, following a DWP ‘planned review’, the awards were superseded to award the claimant both components at the enhanced rate for the period 16 July 2021 to 17 May 2025 (‘the enhanced rate decision’). However, on 22 July 2021, the claimant had also been sent a letter from the DWP (‘the 22 July letter’) thanking the claimant for being asked to look at her award again and saying it had been decided to award her the standard rate of both components for the period 18 July 2018 to 16 June 2022. The claimant appealed against the 22 July letter, but the tribunal struck it out. It held there was no jurisdiction to consider the appeal as, on the facts (which included that the clamant had not requested a review and the DWP could find no record of a decision or of a mandatory reconsideration concerning it), the 22 July letter was not a decision.

Judge Church upheld the decision of the tribunal. The tribunal had been entitled to find that the 22 July letter was not itself a decision and did not establish that the decision it purported to describe had been made. The tribunal was therefore entitled to conclude that there was no decision for the claimant to have appealed against and was accordingly bound to strike out the proceedings for lack of jurisdiction.

In the Upper Tribunal, after considering evidence from the claimant and the DWP, the judge remarked that ‘the genesis of the 22 July letter remains something of a mystery’ (paragraph 21). There was no evidence that the claimant had requested a review (ie, by revision or supersession) of her PIP award, and there was no record or obvious reason why the Secretary of State would have done so on her own initiative. The tribunal had therefore been entitled to find that the letter was issued in error and was not a decision. It followed inexorably from that that the tribunal was bound to conclude that it had no jurisdiction and so to strike out the appeal under rule 8(2)(a) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, SI No.2685. Further, even if the 22 July letter could somehow be considered a decision, it was not a decision either to revise or to supersede the extension decision, but rather ‘...to leave the extension decision exactly in place as it was. As such, the only decision against which a right of appeal lay was the extension decision, and that was not the decision under appeal in the proceedings before the tribunal.’

Comment from CPAG

It is disappointing that the Secretary of State seems to have been at a loss to explain her own letter to the claimant. The judge is correct in holding that, even if the letter could have been considered to be a decision, a decision refusing to revise means that it is the original decision that must be appealed against. But it should be remembered that (although this did not arise from the unusual facts of the present case) a refusal to revise that follows a mandatory reconsideration will make such an appeal possible. Under rule 22(2)(d)(i) of the Tribunal Rules, a refusal to revise following a mandatory reconsideration means that the time limit for making the appeal does not start until the date the claimant was sent the mandatory reconsideration notice. Also, a refusal to revise a decision on the ground of official error could, depending on the case, still constitute a mandatory reconsideration even outside the usual absolute time limit for mandatory reconsideration (PH v SSWP (DLA) [2018] UKUT 404 (AAC), reported as 2019 AACR 14).

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.

Summary

In this decision the High Court held that the two years’ residence requirement that was part of Sandwell’s council tax reduction scheme was unlawful, on numerous grounds. See the article in Bulletin 242, p4.

Summary

The claimant appealed against the decision of the First-tier Tribunal about whether she satisfied the work capability assessment. She was assisted at the tribunal and in her further appeal by a representative. In applying for permission for further appeal, the representative said that he had wished to give evidence at the tribunal on behalf of the claimant about the matters with which his organisation had felt it necessary to assist her, but had been told by the judge that he could only ask his client questions or make a submission.

Allowing the claimant’s further appeal and remitting the case to a new tribunal, Judge Gray commented on that, although he decided the case on another matter and did not have the benefit of argument on it (paragraph 3). The judge said that the tribunal would have been entitled to hear the representative’s evidence, as ‘there is nothing to prevent a representative from giving factual evidence of matters within their knowledge’. It was of course a matter for the tribunal to assess the weight of such evidence, in the way that they weigh any evidence (paragraph 6).

In so commenting, the judge endorsed the finding of Commissioner (as he then was) Jacobs in CDLA/2462/2003, where he said, ‘the tribunal must take care to distinguish evidence from representation so that the former’s provenance is known and can be the subject of questioning by other parties. But subject to the practicalities of the way in which the taking of the evidence is handled, there is no objection in principle to the same person acting in different capacities as a witness and as a representative. Nor is there any reason in principle why the probative value of evidence should depend upon whether or not it came from a representative’ (paragraph 7).

Summary

The claimant’s appeal included whether he had limited capability for work by virtue of the ‘substantial risk’ provision at regulation 35 of the Employment and Support Allowance Regulations 2008 No.794. He had previously been entitled on that basis, mentioned it when requesting a mandatory reconsideration, and the Secretary of State made explicit reference to the decision on mandatory reconsideration and in the appeal papers. The First-tier Tribunal dismissed the appeal and said in its decision: ‘The appellant was represented by an experienced representative. No submissions were made for the tribunal to consider regulation 35 and so this regulation was not considered by the tribunal.’

Judge Wright set the decision aside and remitted the case to a fresh tribunal. The tribunal had erred in not considering regulation 35, as it was plainly an issue raised by the appeal. In such a case, it was irrelevant that it was not specifically addressed by the claimant’s representative’s submission. In so holding, the judge held that a number of previous decisions (CSIB/389/1998, CSIB/588/1998, CSDLA/336/2000 and CSIB/160/2000) should be disregarded, to the extent that they held that where the appeal raises a matter, a tribunal may rely on the representative’s submission in not considering it. ‘In essence,’ held the judge, ‘the tribunal erred in law by abrogating its legal obligation under section 12(8)(a) of the Social Security Act 1998 (‘SSA’) to consider all issues raised by the appeal and in treating the representative’s stance (as the tribunal understood it to be) as relieving the tribunal of its duty under section 12(8)(a) to consider the issues raised by the appeal before it’ (paragraph 3).

Given the decision-making history, the terms of the claimant’s request for mandatory reconsideration and the Secretary of State’s own response, it was common ground that the issue of regulation 35 was ‘raised’ by the appeal. Further, following MN v SSWP (ESA) [2013] UKUT 262 (AAC), reported as [2014] AACR 6, and DH v SSWP (ESA) UKUT 573 (AAC), the consequence of sections 2(3)(b) and 4(5)(b) of the Welfare Reform Act 2007, which give as a condition of entitlement to the work-related activity component of employment and support allowance (ESA) ‘that the claimant does not have limited capability for work-related activity’, means that an affirmative decision had to have been made in the decision under appeal that regulation 35(2) of the ESA Regulations was no longer satisfied. Authority in Mongan v Department of Social Development [2005] NICA 16, reported as R 3/05 (DLA), and in Hooper v Secretary of State for Work and Pensions [2007] EWCA Civ 495, reported as R(IB) 4/07, was that if an issue was ‘clearly apparent from the evidence’ in an appeal then it was ‘raised’ by the appeal, irrespective of whether that had been clearly identified by the appellant or her/his representative. As Judge Wright said in his own decision in ET v SSWP (PIP) [2017] UKUT 478 (AAC), ‘properly read the language of section 12(8)(a) means a First-tier Tribunal must consider an issued that is raised by the appeal’ (paragraph 24). The decisions in CSIB/389/1998, CSIB/588/1998, CSDLA/336/2000 and CSIB/160/2000 may still apply in so far as, where a tribunal is seeking to establish whether an issue is ‘clearly established from the evidence’, a representative may have a relevant role. But in so far as they put a gloss or limit on the express duty to consider an issue raised by the appeal, they should be disregarded. A representative cannot remove such an issue from consideration (paragraph 30).

Comment from CPAG

This decision restates, and to some extent re-establishes, the fundamental duty of a tribunal to consider issues raised by the appeal (ie, those ‘clearly apparent from the evidence’), irrespective of the representative’s submission. It is explicitly in conflict with the older authority cited in the decision that qualifies that regarding submissions from a representative. It is more closely reasoned than that authority, and is certainly more recent. Tribunals will need to be clear about what they consider is or is not raised by the appeal; representatives can and should still be clear about what issues they wish the tribunal to focus on.

Summary

The claimant’s request for a mandatory reconsideration of his tax credits decision was made 35 days outside the standard 30-day time limit for making such a request (but within the absolute time limit of 13 months). HM Revenue and Customs (HMRC) determined that the request was late and that therefore it would only consider it in ‘special circumstances’. It said the request could not be accepted, although the decision about this indicated that HMRC had taken into account the claimant’s reasons for lateness (he reported language problems and illness) and the alleged error (mistake about his selfemployed status and income). The First-tier Tribunal struck out the claimant’s appeal, holding it had no jurisdiction as there had been no mandatory reconsideration and therefore there was no right of appeal.

Judge Scolding QC allowed the claimant’s appeal against the strike-out, reinstated the claimant’s appeal and directed the First-tier Tribunal to consider it. The tribunal had erred in holding that it had no jurisdiction. The correct position was that HMRC had carried out a mandatory reconsideration, and so therefore the claimant did have the right of appeal. In so holding, the judge had reference to the decision of the tribunal of judges in R (CJ) v SSWP (ESA) [2017] UKUT 324, reported as [2018] AACR 5, a decision that held that for benefits there was a right of appeal where a mandatory reconsideration had been made late (but within the absolute 13-month time limit) and the DWP had refused to admit it.

In argument before the judge, HMRC submitted that the present case was distinguishable from that in CJ, as that was a benefits case, and the relevant law for tax credits was materially different. Section 38(1A) of the Tax Credits Act 2002 requires a mandatory reconsideration (referred to there as a ‘review’) to have been ‘carried out’ in order for appeal rights to arise; it was submitted that, therefore, where HMRC had refused to accept the late appeal, there had been no mandatory reconsideration. But the judge rejected that. The rules for benefits and tax credits, although differently worded, had ‘the same statutory purpose’, which was to ‘create a state prior to an appeal where the Secretaries of State for Work and Pensions or HMRC can consider the decision again in order to reduce the number of appeals’ (paragraph 17). There was no intention of reducing appeal rights. Applying the reasoning in CJ, and so bearing in mind considerations such as common law fairness and the right to a fair trial in Article 6 of the European Convention on Human Rights, the judge held that ‘carrying out a review’ under section 38(1A) of the Tax Credits Act 2002 ‘must include considering whether to extend time to carry out the review’. HMRC’s contention that there had been no review ‘failed to grapple adequately’ with the fact that the decision about that implicitly sought to uphold the original decision. As in CJ, the availability of judicial review was not an adequate substitute for appeal rights in such cases (paragraph 27).

Comment from CPAG

thanks to Joe Power of Kirklees Citizens Advice and Law Centre for sending us this decision. The decision is an explicit rebuttal of HMRC’s long-held argument that the wording of the relevant tax credit legislation required a different (and restrictive) approach regarding appeal rights after a late mandatory reconsideration to that taken, following the decision in CJ, to benefits. There is indeed no good reason why the tax credits position should be different; however, it remains to be seen if HMRC is to seek to appeal further.