CPAG search

Summary

The claimant did some temporary work in November 2015, but did not receive payment for that work until 15 December. In the meantime, the work had ceased and he had claimed UC, with the first assessment period being 1 to 31 December. The payment of wages on 15 December was overlooked, but later corrected on revision, resulting in an overpayment of UC which the claimant was liable to repay. The claimant’s appeal again the revised decision and the decision that he must repay the overpayment was dismissed by the First-tier Tribunal.

Judge Jacobs held that the tribunal had not erred in law, and so rejected the claimant’s further appeal. Regarding receipt of the earnings, what mattered as far as the UC legislation is concerned ‘is when a payment is made’. If made within an assessment period, it is treated as income for that period, and so the decision maker ‘correctly fixed the claimant’s assessment period’ so as to treat the earnings as income in respect of that period (paragraph 8).

Liability to repay the overpayment was governed by section 71ZB of the Social Security Administration Act 1992. There, liability did not (unlike for most social security benefits) depend on claimant misrepresentation or failure to disclose. Neither was there reference to official error or what was reasonable to expect the claimant to have realised (paragraph 10). A claimant can appeal about the amount of an overpayment of UC but nothing else. The cause of the overpayment was irrelevant on an appeal under section 71ZB (paragraphs 11–12).

Summary

The claimant was refused housing benefit, being considered to have notional capital of £102,830 for the sale of her former home. The claimant appealed and argued to a First-tier Tribunal that she had paid it to her children. The tribunal rejected the argument that most of the money was paid to clear a debt to her daughter and refused her appeal. A subsequent claim was rejected on similar grounds (with application of the diminishing notional capital rules) and the claimant’s appeal against that was rejected, on the grounds that the facts found by the earlier tribunal were res judicata – ie, could not be disturbed on a new claim. Later, another new claim was met with the same response both by the local authority and a further First-tier Tribunal. On this occasion, the claimant changed her account, saying that in fact she had spent the money on gambling and providing medical evidence of treatment for compulsive gambling.

Judge Jacobs held that the most recent First- tier Tribunal had erred in law, because it took the same approach as the preceding tribunal in applying the principle of estoppel per rem judicatum (sometimes called res judicata) to this case. That was wrong because, as had been made clear in CH/704/2005, that principle ‘has little application to the determination of social security claims generally and none to the determination of housing benefit claims’ (paragraph 7). Although decisions of tribunals are final (subject to supersession, appeal, etc.), the determinations embodied within them are not conclusive. So the determinations about the claimant’s actions made by first tribunal were not conclusive for the purposes of a subsequent claim. A decision on a claim can be changed on revision or supersession, and ‘there is no reason why errors should not equally easily be corrected in new claims’ (paragraph 7).

That was not to say that the earlier decisions were irrelevant to the new claim. It might be difficult for a claimant to persuade a local authority or tribunal to take a different view from that previously taken, ‘particularly where the claimant has admitted lying and, as it would seem in this case, committing criminal offences by making false statements for the purpose of obtaining benefits’ (paragraph 8). However, the possibility that a claimant was an untruthful person telling the truth on this issue must be recognised. The tribunal ought to have considered whether the claimant was now telling the truth and, if so, what the legal implications were (paragraph 8). The case was remitted to a fresh tribunal consider afresh what the facts were.

Comment from CPAG

This decision does not alter the basic position that decisions are final, subject to revision, supersession or appeal. The judge was concerned here with the contention that the estoppel/res judicata principle applies to the determination of claims – ie, to the determination of claims for a different, subsequent period to that in a previous decision.

Summary

The claimant was entitled to child tax credit. She made a claim for universal credit (UC) – mistakenly, she later said, as she believed that in fact she was making a claim for personal independence payment. She withdrew the UC claim, but in the meantime her tax credits had been terminated. The claimant appealed to the First-tier Tribunal, which allowed her appeal.

Judge Jacobs held that the tribunal had erred in law, set the decision aside and substituted a new decision such that the decision to terminate the tax credits award following the claim for UC was correct. The transition from tax credits to UC was governed, in these circumstances, by regulation 8 of the Universal Credit (Transitional Provisions) Regulations 2014 (SI No.1230). That provides for termination where a claim for UC is made and ‘the Secretary of State is satisfied’ that the claimant meets the ‘basic conditions’ for UC in section 4(1)(a) – (d) of the Welfare Reform Act 2012.

In this case, the tribunal found that the DWP, following receipt of the UC claim, had notified HM Revenue and Customs (HMRC) of that by way of a ‘stop notice’ – ie, which caused HMRC to terminate the award of tax credits. Judge Jacobs agreed that it was a requirement for the Secretary of State (ie, the DWP) to be satisfied that the UC basic conditions were met. It was insufficient (for termination of the tax credits award) merely for the DWP to have issued the stop notice. Rather, the tribunal ‘needed some evidence to link the stop notice itself to the Secretary of State being satisfied about the basic conditions. All that was required was an explanation of the system that led to the notice being issued’ (paragraph 9). In fact, the First-tier Tribunal had not been provided with that, and should have given directions for that omission to be remedied. But having been supplied with an explanation of the system by the DWP himself, Judge Jacobs now felt able to hold that the termination of the tax credits was correct. The subsequent withdrawal of the UC claim after the issue of the stop notice ‘could not rewrite history by pretending that the claim was never submitted in the first place’.

Comment from CPAG

It is disappointing that this decision does not include what explanation the DWP offered of how the system ensures that the Secretary of State is satisfied about the basic conditions being met before the stop notice is issued. The judge did not decide on whether the claimant could have protected herself by withdrawing the claim before the stop notice was issued, as that did not arise on the facts. But the reasoning of the decision would appear to allow that possibility. For more, see the article ‘Defective claims revisited’ in Bulletin 267, p8.

Summary

The claimant was the father of a child. He separated from the child’s mother in 2011. The mother received child tax credit (CTC) for the child, but by 2013/14 the child was spending broadly equal amounts of time living with each parent in turn. Following the issue by a court of an interim residence order (subsequently rescinded) that the child live with the claimant but with extensive contact with the mother amounting to shared care, the claimant submitted a claim for CTC citing the court order. HM Revenue and Customs (HMRC) decided that, on the basis of the court order, the father had main responsibility for the child, awarded him CTC from January 2014 and terminated the mother’s entitlement from the same date. The mother appealed to the First- tier Tribunal, who allowed her appeal, saying that there were no valid grounds for removing her entitlement and holding that because of the shared care neither the claimant nor the mother had main responsibility for the child.

Judge Wikeley allowed the claimant’s further appeal in so far as he held that although the original HMRC decision was wrong in being based exclusively on the existence of the interim maintenance order (PG v HMRC and NG (TC) [2016] UKUT 216 (AAC), reported as [2016] AACR 45), the tribunal had failed to make any finding as to which parent had main responsibility for the child, a finding which (as per CTC/4390/2004) is mandatory, not optional (paragraphs 21–22).

However, he did not set the tribunal decision aside. On the facts of the case, HMRC had decided that the tribunal decision had no direct impact on the father’s entitlement for that year, and had ultimately not attempted to recover (as an overpayment) any CTC from the whole of the 2013/14 year from the mother. As the judge noted, ‘we appear to have arrived at a situation in which HMRC has apparently given effect to separate decisions which mean that both parents have been found to be entitled to CTC’ for the tax year concerned, even though strictly only one person can be found to have main responsibility for a child at any one time. HMRC’s ‘pragmatic approach’ was perhaps understandable given the conflict-ridden history of the proceedings, and HMRC had exceptionally been able to countenance parallel payments for separated parents for the same period in other cases (DG v HMRC and EG (TC) [2016] UKUT 505 (AAC) cited) (paragraph 27). Exercising discretion as to whether setting the decision aside could be of any practical benefit to any of the parties, the judge decided not to do so (paragraph 28).

Summary

The claimant was subject to a reduction in his eligible rent due to the application of the bedroom tax to an allegedly spare bedroom in his house. However, the claimant disputed that, mainly on the grounds that the room was unsafe to use due to asbestos-related risks. In rejecting the claimant’s appeal, the First-tier Tribunal found that (following remedial work) the room had been safe to use from January 2014, even though a surveyor had not confirmed that until October 2014.

Although Judge Mitchell set the tribunal’s decision aside for error of law (the tribunal had given inadequate reasons why the room was usable before October 2014), he substituted a decision to the same effect – ie, that the claimant was subject to a reduction under the ‘bedroom tax’ from January 2014 (paragraphs 42–49). In so deciding, the judge had to consider whether the allegedly spare room was capable of counting as a ‘bedroom’ under the relevant rule – ie, regulation B13 of the Housing Benefit Regulations 2006, SI No.213.

The 2006 regulations do not define ‘bedroom’. However, the judge considered that although (given that this was a social sector tenant) the local housing allowance (LHA) rules did not apply, ‘the LHA provisions’ treatment of unsuitable rooms is worth mentioning’. Those rules define a ‘room’ as ‘a bedroom or room suitable for living in’ (paragraph 36). But in the end the judge considered that he did not need to decide whether such a definition should apply regarding what is a bedroom under the bedroom tax rules. Existing authority, in particular SSWP v Nelson [2014] UKUT 525 (AAC), demonstrated that a ‘bedroom’ needs to possess certain characteristics, and that included avoiding ‘obvious safety risks’ (M v SSWP [2017] UKUT 443). It could not be assumed, held the judge, that, ‘potential renters would be willing to move into properties with unsafe bedrooms’ (paragraph 45). On the facts of this case, the asbestos had been effectively cleared from the bedroom in January 2014. The room was in fact safe, and so could count as a bedroom from that time, even though the claimant was not aware of that until the following October (paragraph 47).

Comment from CPAG

The judge explicitly left undecided the question of whether the bedroom needed to be ‘suitable for living in’, as in the LHA rules. Although previous caselaw and the present cover at least some of that ground, the question could arguably be the subject of a future decision.

Summary

As a child, the claimant was entitled to DLA. As required by law, at that stage the DWP appointed someone to act for her – in this case, her mother. As she neared the age of 16, the claimant was subject to the transfer to PIP process. The claimant was refused PIP and (through her mother) appealed. The First-tier Tribunal, proceeding on the assumption that the mother was the claimant’s appointee, decided to proceed in the claimant’s absence and at the hearing heard only from her mother. The tribunal dismissed the appeal. The claimant, assisted by a representative, appealed to the Upper Tribunal arguing that the tribunal acted unfairly by failing to consider adjourning with directions for the claimant to attend and give evidence.

Judge Mitchell rejected the claimant’s further appeal. He considered that, if the claimant’s mother was in fact her appointee for PIP purposes, he ‘could see no real prospect of these arguments succeeding’. He then considered whether the claimant’s mother was indeed her appointee for PIP purposes, and held, on the facts, that she was. The DWP explained to the judge that although there was a mandatory appointment of an appointee for a child DLA claimant (under regulation 44 of the Social Security (Claims and Payments) Regulations 1987 (SI No.1968), there was no direct equivalent for PIP (which cannot be claimed by a ‘child’ – ie, someone aged under 16). However, as a matter of process, in the lead-in to a transfer to PIP, the DWP considers whether to make a new appointment on the basis that the child is ‘unable to act’ for her/himself, under a separate power at regulation 33. If such an appointment is made, this regulation 33 appointee is automatically transformed into a similar appointee for PIP purposes (by virtue of regulation 28 of the Personal Independence Payment (Transitional Provisions) Regulations 2013, SI No.387).

The Secretary of State conceded that she could not supply records regarding the process of conversion of the claimant’s mother from her DLA appointee to her PIP appointee, but did supply records indicating that this did occur. The Secretary of State argued that under principles of presumption of regularity, the DWP should be regarded as having carried this process out correctly. Considering the evidence (which included the mother’s recall of a visit about this), the judge held the claimant’s mother was properly to be regarded as her appointee for the PIP appeal – ie, following conversion of the DLA appointment to a PIP appointment under regulation 28 of the Transitional Provisions regulations. If the presumption of regularity did apply, there was nothing from the claimant to rebut it; if the presumption did not apply, on the balance of probabilities, the conversion was in any case made (paragraphs 33–34). Further, there was no error in taking the mother’s evidence at face value: it had not been suggested to the tribunal that her knowledge of her daughter was imited, and in fact she argued the contrary. However, in concluding remarks the judge said that he would ‘strongly recommend’ that in other such appeals the DWP ‘properly explain and, if necessary, evidence the basis for any appointment’ (paragraphs 35–36).

Comment from CPAG

It remains the case that tribunals are able to take evidence from children, but of course must consider if that is right, and in practice are often reluctant to do so. Ultimately, what is right will depend on the individual facts.

Summary

The claimant was entitled to the standard rate of the daily living component and the standard rate of the mobility component for a fixed period from 27 June 2013 to 14 January 2017. On 16 January 2016 she was notified of a ‘planned review’ of her award. Following completion of a form and a medical, a decision was made on 31 May 2016 superseding the award and removing all entitlement from the date of the supersession decision. Following an unsuccessful mandatory reconsideration, the claimant appealed. The First-tier Tribunal held that there were ‘no grounds’ for the supersession and reinstated the award up to the expiry date of 14 January 2017. But it also decided to make a reduced award beyond the expiry date, awarding only the standard rate of the daily living component.

Judge Bano held that the tribunal had erred on holding that there were no grounds for a supersession on 31 May 2016. Under regulation 26(1)(a) of the Universal Credit, Personal Independence Payment, Jobseeker's Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013, No.381, a supersession ground always exists where the Secretary of State has received medical evidence from a healthcare professional (or other approved person), and it was not necessary to establish a change of circumstances or any other ground for the supersession. That did not of course relieve tribunals in such cases from the need to give an adequate explanation of their decision where they had decided to part from an earlier award (paragraph 7).

There had been no error in also making an award beyond the expiry date of the original decision. Apart from the usual ability only to take into account circumstances down to the date of the supersession decision which is under appeal, the powers of the tribunal in an appeal against a regulation 26(1)(a) supersession decision were ‘not fettered in any way by the terms of the of the decision which has been superseded’. If the original award was for a fixed period which has come to an end prior to the determination of the appeal and the claimant has not made a new claim, there was ‘nothing to prevent a tribunal from making a supersession decision awarding whatever benefit it considers the claimant to be entitled to for a period extending beyond the expiry date of the original award’ (paragraph 8). On the facts of the present case, there was no dispute about the claimant’s lack of entitlement to the mobility component and, given the availability of a supersession ground from 31 May 2016, there was no reason not to remove it from that date, even though the tribunal had not erred in awarding the daily living component for a further period.

Comment from CPAG

It is worth emphasising that although receipt of a new official medical report is in itself a ground for supersession and (where the claimant has not claimed again) tribunals can revisit expiry dates in a decision, tribunals are still obliged to explain why they consider that entitlement should be changed.

Summary

The claimant was in receipt of PC, including the addition for severe disability (referred to here as the severe disability premium). When the DWP became aware that in fact the claimant had a grown-up son living with her, her award was revised to remove the severe disability premium and make a recoverable overpayment decision, on the basis that she had been overpaid the premium for several years and had misrepresented herself as living alone. However, the relevant form in which the misrepresentation was allegedly made, form PC 10, was no longer available. The First-tier Tribunal noted that the claimant had (without dishonest intent) made similar misrepresentations in the context of two previous claims for income support, and decided on the balance of probability that the claimant had misrepresented her situation on the PC 10 form.

Judge Gray dismissed the claimant’s further appeal. On the facts of the case, there was sufficient evidence in order to reconstruct the missing form, which was what the First-tier Tribunal had done. The claimant’s prior misrepresentations on the same issue were evidence of the sort referred to by Judge Ward in MK v SSWP [2011] UKUT 12 (AAC), where he said that where misrepresentation in a claim form was alleged and the form was not available, there would have to be ‘sufficient secondary evidence’ (paragraph 34). The First-tier Tribunal had decided that the claimant had misrepresented herself on the PC 10 form by making ‘rational deductions’ from the evidence, which was permissible, ‘rather than assumptions, which are not’ (paragraph 46).

The judge rejected an argument from the claimant that it was not permissible to make a finding of misrepresentation in the absence of the form. She also considered the argument that the reasoning of Commissioner (as he then was) Williams in CG/3049/2002 applied. There, he had said that if there was no evidence, the tribunal should not guess or make assumptions. But he also said that the tribunal should do its best to reconstruct the form. The correct question in the present case was therefore whether the tribunal had done that, ‘without resorting to assumption, including the assumption that the Department was less likely to make a mistake than the claimant’ (paragraph 29). The judge also considered the application of the principle of ‘the presumption of regularity’ – ie, so that officials could be supposed not to have made a mistake. Reviewing authority, the judge noted that such a presumption was rebuttable, and was ‘a tool, rather than a key’. On the facts in this case, it was plain that the presumption of regularity was not decisive, rather that the significant factor was the claimant’s prior misrepresentations (paragraph 41).

Comment from CPAG

Clearly, in this case what was important was the facts of the case, the tribunal’s legitimate deductions from those facts and the application of the balance of probability. Although the presumption of regularity was not central to Judge Gray’s decision, it seems clear that in itself that principle should not be used to decide against a claimant.

Summary

The claimant was held to be not entitled to PIP because he failed, allegedly without ‘good reason’, to attend the medical. Following mandatory reconsideration, he appealed against that decision to the First-tier Tribunal. Before that was heard, he attended a rearranged medical appointment. The department indicated that it did not consider the claimant scored sufficient points to be entitled. Eventually, his appeal was struck out by a district judge, on the basis that his appeal had lapsed and in any case the claimant had not applied for a mandatory reconsideration of the subsequent refusal of entitlement following the rearranged medical.

Judge Wikeley allowed the claimant’s further appeal (against the purported striking out) and remitted the case to a fresh tribunal. The district judge had erred in striking out the appeal, both on the basis that the appeal had lapsed and that the claimant had needed another mandatory reconsideration. In striking out the appeal, the tribunal had breached the rules of natural justice by not giving the claimant an opportunity (as also specifically required under the tribunal rules) to make representations regarding the proposal to strike the appeal out (paragraphs 41–46). In any event, the claimant’s appeal had not actually lapsed. Reviewing some fundamentals of social security decision making, the judge pointed out an accepted distinction between ‘outcome’ decisions (ie, those which actually decide entitlement and which can only be changed by revision, supersession or appeal) and ‘building block’ or ‘stepping stone’ determinations made along the way to the decision, which are important but not in themselves outcome decisions (paragraphs 50–51).

In the present case, a conclusion that the claimant did not have good reason for missing the medical was a stepping stone determination rather than an outcome decision (paragraph 50). In the PIP rules, such a determination required the making of a ‘negative determination’ that the claimant does not have limited ability in the relevant test, but that was still not an outcome decision, which was the decision that the claimant was not entitled to PIP (paragraphs 52–55). Applying those principles to the present case, the actual outcome decision had not been changed (ie, on revision or supersession) and all that had actually happened was that the claimant had been allowed to attend a rearranged medical. As there was no change to the decision under appeal, there was no basis for lapsing it (paragraphs 60–61). The indication given by the department after the rearranged medical that the claimant did not score sufficient points was at most a ‘recommendation’ and not a new decision. It followed that there could be no mandatory reconsideration of such a ‘non-decision’; regarding his still extant appeal, the claimant clearly had already satisfied the mandatory reconsideration requirement (paragraphs 63–66).

Summary

The claimant was a Polish national. Her right to reside depended on her counting as a self- employed person. Following notification of a decrease in hours, the local authority terminated her HB on the basis that: ‘your earned income has decreased to an amount below the required threshold for EEA Nationals for your work to be considered “genuine and effective”’. That decision was upheld by the First-tier Tribunal.

Judge Jacobs allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred in following the decision maker’s approach and decision. That was because both had misapplied the law regarding what is ‘genuine and effective work’ by misapplying official guidance about this and the use of a ‘minimum earnings threshold’. For HB, guidance on this was in HB Circular A3/2014. That provides that where the claimant is earning at the threshold, her/his work will automatically count as ‘genuine and effective’, but where s/he does not satisfy the threshold, ‘a further assessment will be undertaken against a broader range of criteria (such as hours worked, pattern of work, nature of employment contract, etc.) ’ to decide whether the employment is genuine and effective.

Judge Jacobs said that the circular ‘is not law, but there is nothing wrong with it when it is read and understood’. It contained a concession that the work will be genuine and effective if the claimant’s earnings meet the threshold, but that if they did not then other criteria, ‘which accurately record the approach required by EU law’ should be applied (paragraph 3). The tribunal (like the decision maker) had either never read the guidance or if it did had misunderstood it. That was because it had applied the minimum earnings threshold as a rule of law and ignored the guidance to use the other, broader criteria if the threshold was not met (paragraphs 4 and 5).

Comment from CPAG

The ‘minimum income threshold’ is sometimes cited by decision makers, wrongly, as a complete test of whether work is ‘genuine and effective’. This decision provides a clear corrective to that, while not doubting that meeting the threshold is one way of satisfying that requirement.

Summary

The claimant suffered from a number of health conditions, including anxiety resulting in loss of confidence in social interaction. In their reasons for refusing her appeal, the First-tier Tribunal included that the medical member of the tribunal advised on number of potential treatment options, and said that, ‘the Tribunal was unclear why there was no corresponding treatment for the appellant if her difficulties were known to the GP and the Tribunal was entitled to conclude that the appellant’s symptoms were actually mild.’

Judge Poynter allowed the claimant’s further appeal on a number of points, with the overarching one being that, on the facts, it failed to deal in sufficient detail with the evidence of the examining healthcare professional regarding the descriptors for getting about and coping with social engagement (paragraph 20). But he also disagreed that the tribunal had been ‘entitled to conclude’ that the claimant’s anxiety symptoms were mild from the fact that it was unclear why there was no corresponding treatment for it (paragraph 47).

The judge held that, ‘tribunals should be very cautious about drawing inferences from the treatment received by claimants’ (paragraph 38). Medicine is a ‘broad church’ with a wide spectrum of reasonable opinion and practice, and treatment a matter of professional judgement (paragraphs 40–41). The medical member of the tribunal in this case may well have been justified in believing that there were a number of potential treatments, but the claimant’s GP may have believed differently regarding his patient (paragraph 42). There was ‘a real risk that drawing inferences about function from treatment will in some cases lead the Tribunal to conclude that claimants do not suffer from the loss of function they describe because they are not being correctly treated for it’, which was not a permissible conclusion (paragraphs 45–46).

Thanks to Peter Turville of Oxfordshire Welfare Rights, the claimant’s representative, for sending us this decision.

Summary

The claimant was refused UC on the basis that she did not have a right to reside. The First-tier Tribunal upheld that decision. This was despite the fact that the claimant had been issued with a registration certificate and fell to be an ‘extended family member’ of her unmarried partner who was a migrant European Union (EU) worker, and had been so for a continuous period of over five years.

Judge Poole QC allowed the claimant’s further appeal, and substituted a decision that the claimant had a permanent right to reside and therefore satisfied the basic condition of being ‘in Great Britain’. This permanent right to reside had been acquired after five years as the extended family member (with a registration certificate) of her unmarried partner, a migrant EU worker. The tribunal had erred in failing to identify that (paragraph 5). The extended family member status was by virtue of regulation 7(3) of the Immigration (European Economic Area) Regulations 2006, No.1003 (the ‘right to reside regulations’, revised in 2013). The permanent right to reside after five continuous years with that status was by virtue of regulation 15(1)(a) of those regulations (paragraphs 3 and 5).

The appeal was supported by the Secretary of State. It was accepted that (as held by the First-tier Tribunal) jobseeker status could not be an effective right to reside for the claimant’s entitlement to UC, as that status was specifically excluded by regulation 9(3)(aa) of the Universal Credit Regulations 2013, No.376 (paragraph 3). The judge also agreed that the claimant did not fall to be treated as ‘in Great Britain’ by satisfying any of the categories set out in regulation 9(4) – eg, the claimant was not herself a migrant EU worker or self-employed person. But the situations in regulation 9(4) were not the only bases on which a person could be ‘in Great Britain’ (ie, have an effective right to reside for UC) (paragraph 5). On the facts, the claimant had a right to reside, namely a permanent right to reside under regulation 15(1)(a) of the right to reside regulations.

Comment from CPAG

This decision is a reminder that the specific categories mentioned in regulation 9 of the Universal Credit Regulations are not a complete statement of right to reside categories, and that the mere fact that someone is a jobseeker, although not an effective right to reside for UC in itself, does not actually bar a claimant from having some other effective right to reside.