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Summary

The claimant telephoned the tribunal clerk to request a postponement of her appeal because of a conflicting appointment, and then wrote to ‘confirm the conversation’. The request was passed to an HMCTS tribunal caseworker, who refused the postponement request, saying that no explanation had been given regarding the conflicting appointment and that the claimant’s medical records were now available to the tribunal. The tribunal proceeded in the claimant’s absence (and refused the appeal), explaining that it had ‘sufficient evidence’ to enable it to make a decision and that it was in accordance with the overriding objective to proceed in the claimant’s absence.

Judge Poynter allowed the claimant’s further appeal and remitted the case to a new tribunal, with directions that an oral hearing should be held on a day on which the claimant was able to attend. The facts (not before the tribunal) were that the claimant had been unable to attend the hearing because she had an urgent medical appointment for cancer treatment. The clerk had made a procedural error in not recording this detail which was very probably included in the telephone conversation with the claimant. But (more importantly) the tribunal caseworker was exercising the judicial power of the tribunal, and should have directed that the missing information about the conflicting appointment be requested from the claimant before deciding the postponement request (paragraphs 16–19). Further, the tribunal’s decision to proceed in the claimant’s absence also involved an error of law. The tribunal had proceeded on the basis that it had ‘sufficient evidence’; but the test under rule 31 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Procedure) Rules 2008, No.2685, was whether it is in ‘the interests of justice’ to proceed. At the very least, the tribunal had failed to explain how it was fair (and in accordance with the overriding objective) to proceed (paragraphs 27–32).

The judge suspected that some may think that the claimant, who was unrepresented, should have known that she needed to provide an explanation about the conflicting appointment. But he pointed out that, on the facts, it would have been ‘astonishing’ had she not in fact done that in the context of her telephone conversation with the clerk (paragraph 42). Furthermore, the claimant – ‘in common with many other appellants in the Social Entitlement Chamber’– was ill. A person suffering pain and fatigue ‘cannot necessarily be expected to draft applications to the tribunal with the same thoroughness that she would bring to the task if she were well’ (paragraph 44). Finally, the judge cited his own experience as a district judge of the First-tier Tribunal in observing that many unrepresented claimants (and some represented ones) simply did not understand that a social security appeal is a judicial hearing, and believed that requesting a postponement is just giving notice to cancel an appointment. ‘Such an approach,’ said the judge, ‘should not be held against unrepresented claimants, at least when there is no reason to believe they have been told what is actually required.’ The tribunal had an enabling role and, ‘particularly as many people are better at expressing themselves by word of mouth than they are in writing, allowing claimants to attend hearings and explain their situation in person’ was important (paragraphs 47–49).

Comment from CPAG

This decision shows how inattention to the need for fairness (and concentration on merely progressing business), including by tribunal caseworkers, can lead tribunals astray. The judge’s observations on the realities and perspectives of many social security appellants are a timely and important reminder of the importance of oral hearings.

Summary

The claimants were all women on universal credit (UC), employed and paid monthly. Because they were paid on or around the last working day or last banking day of the month, there were times when earnings payable in respect of two different months were paid during one UC assessment period. For example, one claimant had an assessment period running from 30 November to 29 December, and received the November earnings on 30 November and the December earnings on 29 December. As a result, she (and the other claimants) were treated as having two lots of wages paid in the same assessment period. As they were entitled only to one work allowance in that month, their UC entitlement was severely reduced when they were paid the UC, leading to serious financial difficulty. The claimants’ challenge was based on arguments that the assessment of their earnings in this way led to effects that contravened the Welfare Reform Act 2012 so as to be ultra vires, or that it led to unlawful discrimination contrary to Article 14 of the European Convention on Human Rights (ECHR) read with Article 1 of protocol 1 of the ECHR. One claimant also argued that the Secretary of State had failed to comply with the public sector equality duty under section 149 of the Equality Act 2010.

In the High Court, Lord Justice Singh and Mr Justice Lewis held that the decisions counting payments of both sets of monthly earnings in the same assessment period were indeed wrong, although as that was because of an erroneous interpretation of the relevant regulation, did not go on to consider the claimant’s arguments about ultra vires or the ECHR. On the facts (which included equality impact statements regarding the impact of UC on groups with protected characteristics, including women), the court held that the Secretary of State had satisfied the public sector equality duty (paragraphs 64–67).

The court concentrated on regulation 54 of the Universal Credit Regulations 2013, SI No.376. That provides that the calculation of earned income ‘in respect of’ an assessment period is ‘to be based on the actual amounts received in that period’. The court noted that the regulation ‘does not provide that the amount of earned income “is to be the actual amounts” received “in” the assessment period. Rather, the amount of earned income is to be “based on” the actual amounts received’ (paragraph 50). Although earned income was indeed ‘based on’ earnings received in the assessment period, there might need to be ‘an adjustment’ where it was ‘clear that the amounts received in an assessment period do not, in fact, reflect the amounts of earned income received in respect of the period of time included within that assessment period’ (paragraphs 52 and 56). In the circumstances of these cases, therefore, the Secretary of State had wrongly interpreted regulation 54 and ‘wrongly assumed that where salaries for two different months were received during the same assessment period, the combined salaries from the two months were to be treated as earned income in respect of that assessment period’ (paragraph 62).

Comment from CPAG

The court directed further submissions on identifying the appropriate remedy.

Summary

This decision of the Northern Ireland Court of Appeal concerns the context in which the various descriptors in the WCA should be applied. The claimant had been refused employment and support allowance (ESA). The issue was whether, in the WCA, she should have been awarded points under Activity 14 (coping with change).

In the decision now under appeal, the Northern Ireland Commissioner (applying in particular the Upper Tribunal decision in AS v SSWP [2013] UKUT 587) had held that the descriptors must be applied on their own terms, but be understood against the backdrop of the modern workplace. But that did not mean that context applied to each and every descriptor: although some descriptors applied only to the workplace, others clearly did not (paragraph 20).

The Northern Ireland Court of Appeal rejected the claimant’s argument that the commissioner had, in the context of Activity 14, wrongly failed to apply the ‘work context’ as described in AS (and as endorsed in JC v SSWP [2014] UKUT 352 (AAC)). It was clear that the commissioner had been fully sighted of the decision in AS and recognised it represented an ‘authoritative statement of the law’ (paragraph 36). The commissioner’s finding that some descriptors were not limited to the workplace, including those in Activity 14 which was about to ability to cope with change and manage ‘day to day life’ was ‘entirely consistent’ with the decision in AS (paragraph 38). On the evidence, both the tribunal and the commissioner had been entitled to refuse the claimant points under Activity 14 (paragraphs 39–55).

Summary

The claimants were Swedish nationals (mother and children) living in Germany. The mother and one of her daughters worked in temporary jobs lasting less than a year, then received Arbeitslosengeld II, a benefit (referred to by the Court as a ‘subsistence allowance’) for the long-term unemployed. But that was terminated on the basis that they had been unemployed for more than six months.

The precise legal basis for the termination was that the benefit was social assistance, the claimants’ only right to reside was now only as jobseekers, and that under Article 24(2) of EC Directive 2004/38/EC (‘the residence Directive’) there was no obligation to provide such assistance to nationals of other European Union (EU) member states, other than to workers and their family members. The claimants challenged that, arguing that the termination was in breach of Article 4 of EC Regulation 883/2004 on equality of treatment for nationals of member states, read in conjunction with Article 70 on provision of ‘special non-contributory cash benefits’.

The European Court of Justice held the termination of the benefit to be lawful. The benefit concerned was correctly classified as ‘social assistance’ within the meaning of Article 24(2) of the residence Directive. The Court considered that ‘the predominant function of the benefits at issue in the main proceedings is in fact to cover the minimum subsistence costs necessary to lead a life in keeping with human dignity’. It followed that they were not ‘benefits of a financial nature which are intended to facilitate access to the labour market’ – ie, so Article 24(2) could be applied (paragraphs 45– 46). Regarding equal treatment, the Court referred to its decision in Vatsouras and Koupatantze (EUECJ C-22/08 and C-23/08), in which it held that EU citizens with a right to reside on the basis of retained worker status under Article 7(3)(b) of the residence Directive (ie, as former workers now seeking employment) have the right to social assistance for ‘at least six months’ (paragraph 54). However, in the present case, the Court held that it was not disputed that the claimants no longer enjoyed retained worker status at the point the benefit was terminated (ie, their only right to reside now was as jobseekers with a genuine change of being engaged in employment – ie, under Article 14(4)(b) of the residence Directive) (paragraph 55). It followed that although the claimants may still have a right to reside, that was not as workers, and so ‘social assistance’ could be refused under Article 24(2) of the Directive (paragraphs 57–58).

Comment from CPAG

The Court’s classification of the German benefit concerned as a ‘social assistance’ benefit is crucial to the reasoning of the decision. Disappointingly, the Court’s explanation for not regarding the benefit as one to facilitate access to the labour market is not very clear, and neither does it explain why it considered that the claimants no had longer retained worker status after six months (given that Vatsouras merely said that such status applied for ‘at least’ that period).

Summary

The claimant was paid industrial injuries disablement benefit from July 2010 until March 2018, on the basis of spinal and associated injury caused by an accident at work in March 2010. However, in February 2018 a DWP doctor had, in effect, changed her mind in relation to previous assessments, and found that (although the claimant undoubtedly had ongoing loss of faculty) any continuing disablement was unlikely to have been caused by the accident at work. The doctor had learned from the claimant that he had an old fracture in his spine, dating from before the accident. Therefore, a decision was made terminating his entitlement from March 2018. The First-tier Tribunal refused the claimant’s appeal, concluding that ‘the appellant’s impairment arose from a constitutional condition which existed prior to the incident even though giving rise to few symptoms at that time’. The claimant appealed, arguing that the tribunal had given inadequate reasons for its decision, in particular in allegedly not explaining why it had rejected previous decisions awarding him entitlement.

Deputy Judge Rowland dismissed the claimant’s appeal. The tribunal had explained its decision adequately. The tribunal had been entitled to consider the issue of causation afresh. And not relying on the earlier decisions had been explained: ‘The reasons given for not placing weight on the decisions were essentially that causation had not explicitly been considered in them – because it was not considered a live issue at the time – and that the medical advisors had not had the medical evidence that was before the First-tier Tribunal and caused the First-tier Tribunal to consider that the assessment decisions had been based on mistakes of material fact (see paragraphs 71 and 72 of the statement of reasons). That is perfectly proper reasoning.’ The tribunal had then gone on to set out its reasons for concluding that ongoing disability was not caused by the accident in 2010.

The deputy judge also rejected arguments (made by the Secretary of State) that the tribunal had erred in not explaining its findings that the injury had caused only soft-tissue damage and that the degenerative disc disease showing in a December 2010 MRI scan was unlikely to have been caused by that. The deputy judge pointed to the presence on the tribunal of a medically qualified member: ‘Where a tribunal includes a registered medical practitioner as a member and so has its own expertise, it is required to give reasons for its conclusion but is generally entitled to rely on its own expertise. I do not accept that the First-tier Tribunal is obliged to give reasons for its reasons in the absence of reasoned evidence that contradicts its opinion. It may be that, on an appeal to the Upper Tribunal, a party is entitled to adduce evidence for the purpose of showing that there is a contradictory body of medical opinion and that, in the circumstances of a particular case, the First-tier Tribunal’s reliance on its unexplained opinion is inadequate, but that has not been done here…’ (paragraph 17).

Comment from CPAG

The involvement of the issue of causality and that that had not been the subject of enquiry in previous decisions were important factors in this case. However, the emphasis on the ability of a tribunal to rely on its own expertise in the absence of evidence to the contrary is of wider relevance.

Summary

The claimant had third-party deductions (‘TPDs’) made from her income-related employment and support allowance (ESA) in respect of fuel and water debts. On application for judicial review, she challenged the lawfulness of the Secretary of State’s written guidance in the Decision Maker’s Guide and in a related overview document about such deductions, which she claimed led to decisions to make the deductions in an unlawful way. The statutory rules on the deductions (which were not the subject of the claimant’s challenge) were in regulation 37 and Schedule 9 of the Social Security (Claims and Payments) Regulations 1987, SI No.1968. This is a distinct scheme from that that applies to universal credit. 

The guidance was challenged on the grounds that it unlawfully failed to advise seeking consent or representations from the claimant before the deductions were made. Specifically, it (i) failed to include that whether the claimant consented to the deductions was a relevant consideration; (ii) implied that it was not under an obligation to seek representations and information from the claimant; and (iii) omitted to say that in many cases it would need to seek those views in order to act fairly. Additionally, the decision maker was in effect precluded from considering any of the claimant’s circumstances. The claimant also argued that these failures amounted to a breach of her human rights, under her rights to property under Article 1 of Protocol 1 or as discrimination in breach of Article 14. 

In the High Court, the judge allowed the claimant’s application but only on the ground that the guidance led to the decision maker not seeking representations and information from the claimant. He said: ‘…the claim for judicial review succeeds on one aspect only. This is that the defendant’s written guidance to decision makers in relation to TPDs is unlawful because, by implication and omission, it has the effect that, read as a whole, the guidance presents a misleading picture of the true legal position to decision makers, in that it does not make clear that claimants should be offered the opportunity to make representations and/or provide relevant information to the decision maker before the TPD decision is taken’ (paragraph 292). The other arguments made were rejected. The judge did not go further than declaring that the guidance was unlawful in the single respect he identified: ‘This is because TPDs are imposed upon over a hundred thousand claimants each year and so any breaches of common law duties affect a very large number of people. Also, the deficiency in the written guidance that I have held to exist can relatively simply and easily be remedied, by adding a direction to the effect that claimants should be offered the opportunity to make representations and/or provide relevant information to the decision maker before the TPD decision is taken’ (paragraph 291).

Comment from CPAG

The decision is not simple authority that the deductions are unlawful or that claimant consent is required. But it does establish that views and/or information should be sought from the claimant before these deductions are made. Arguably, it should apply to universal credit as well as to legacy benefits (like income-related ESA) – but that may require additional authority.

Summary

The claimant submitted his online claim for UC on 14 August 2020. That was applied as the date of his claim. The First-tier Tribunal rejected his claim for backdating (ie, for a month before that date) on the basis that it accepted the Secretary of State’s argument that a request for backdating had to be made with the original claim (or before the initial decision), not subsequently. 

Judge Wright allowed the claimant’s further appeal and substituted a decision that he was entitled to a month’s backdating. The tribunal had erred in holding that backdating had to be requested on the original claim, an argument that had been rejected by the Upper Tribunal in AM v SSWP (UC) [2022] UKUT 242 (AAC). But even if that had not been the case, the claimant should still have succeeded via the ‘implied’ claim for backdating that did appear on his original online claim. That claim set out that he was restricted in looking for work and had been affected in looking for work by his psychosis, ADHD and anxiety. He had been admitted to hospital on 20 June. The Secretary of State had already accepted (in AM) that the backdating requirement in regulation 26 could be met by such an implied claim (paragraph 5). 

The First-tier Tribunal had erred because the evidence of his health condition in the full claim was not put before it by the Secretary of State, and so the tribunal did not ‘give the appellant a fair hearing of his appeal based on all the relevant evidence’ (paragraph 7). Further, the tribunal might have erred in not sufficiently investigating, on the evidence it did have, whether an implied claim for backdating had been made. On the facts, the judge was satisfied that the claimant’s ‘serious health conditions’ meant that he had a ‘disability’ and as a result could not reasonably have been expected to make his claim earlier than 14 August, and therefore met the conditions for a month’s backdating (ie, to 14 July) at regulation 26(3)(b) of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013 (paragraph 14).

Note

The judge mentioned that the Secretary of State’s request for permission to appeal in AM v SSWP (UC) has been refused; however, it remained possible that the request would be renewed to the Court of Appeal

Summary

The claimant had physical health and mental health problems. He was refused PIP. In refusing the claimant’s appeal (where he was unrepresented), the First-tier Tribunal noted that the claimant had, on the PIP2 claim form, ticked the box for ‘sometimes’ with regard to his abilities in activities 2–7. The tribunal (according to its decision) ‘took [that] as an indication that on more than 50 per cent of the days he was able to perform those activities reliably’. 

Upper Tribunal Judge Church allowed the claimant’s further appeal, and remitted the case to a fresh tribunal. The tribunal had erred in assuming that ticking the ‘sometimes’ box necessarily meant that the claimant didn’t experience difficulties with the activity in question on more than 50 per cent of days. It also did not say what it made of the other evidence available (which it may not have considered). It had therefore ‘failed adequately to consider or explore the difficulties the claimant has reported with activities 2–7’ (paragraph 12). 

The judge expanded on the approach that should be taken to the ‘yes’, ‘no’ and ‘sometimes’ boxes that appear in the PIP2, as follows: 

‘13. The “yes”, “no” and “sometimes” tick boxes in the PIP2 questionnaire are a very blunt instrument. If they are all the First-tier Tribunal has, then it may need to draw inferences from them in the light of whatever other evidence it has, or it may need to seek more evidence. Where, as here, the claimant has provided substantial narrative comments in the text boxes, it is incumbent on the First-tier Tribunal to interpret the ticks in the light of the explanation provided in the narrative.

 

‘14. Of course, no First-tier Tribunal needs to accept what is said in the narrative box. What is written in the box has no special status: it is, rather, just another piece of evidence. But that evidence must be considered, and it may well be incumbent on the First-tier Tribunal to explain what it makes of it and how it evaluated that evidence to reach its findings. 

 

‘15. A claimant’s completion of the tick boxes in a PIP questionnaire cannot be used as proxy for application of regulation 7 of the PIP Regs: “Sometimes” could mean many things to a claimant: it may mean “occasionally”, or it may mean “most, but not all of the time”, or it may very well mean something in between. It is highly unlikely that a claimant, especially one who completes the questionnaire without assistance from a welfare rights adviser, will have in mind the requirements of regulation 7 of the Social Security (Personal Independence Payment) Regulations 2013 (the “PIP Regulations”). The tick boxes do not, therefore, provide the First-tier Tribunal with a short cut obviating the need to make findings as to the frequency of a claimant’s difficulties.’

Comment from CPAG

No tribunal should need a reminder that a tick in a ‘sometimes’ tick box may well require further exploration in a hearing. Nevertheless, the Upper Tribunal’s expansion on the error in this case, and the highlighting of the particular confusion that an unrepresented claimant may undergo in using the tick-boxes, is helpful.

Summary

The claimant was a young child (aged 11 at the time of the relevant decision, with her father acting as her appointee) with several medical conditions, including incontinence and vulvovaginitis. Having been entitled to the high rate of the DLA care component for night-time care needs in the past, it was refused on renewal, with the decision maker holding that the help she required at night was no longer substantially above that needed by a child of the same age. She appealed via her father, who stated that her night-time care needs had not changed, and included that she tended to wet the bed once or twice during the night, with a need for a wash, change of sheets and settling back to bed. The First-tier Tribunal refused the appeal, holding that, with some adjustments to the her routine, such as alarms, incontinence wear and multiple protective sheets, the night-time needs could be managed independently. 

Judge Wikeley allowed the claimant’s further appeal, and substituted a decision that the claimant remained entitled to the middle rate for night-time care needs. The tribunal erred in not putting any of the strategies it thought could be used to reduce the care needs to the father, who therefore did not have the chance to explain that, in fact, they had all been tried and failed. Further, Judge Wikeley accepted the submission of the Secretary of State that what the claimant required was in fact much more than an 11-year-old child without disabilities would require. He referred to the decision of the Court of Appeal in Ramsden v SSWP [2003] EWCA Civ 32, in which certain acts of immediate and essential cleaning-up after an episode of incontinence may count as attention. 

The Secretary of State had also referred to the decision of Judge Poole in CC v SSWP (ESA) [2019] UKUT 14 (AAC). In that decision, Judge Poole had emphasised the importance of natural justice, but also said that matters of inference or credibility do not in general need to be put to claimants. However (as per paragraph 14 of CC v SSWP), where a new issue had arisen which the claimant had not had the chance to address, or where the tribunal’s observation was in itself determinative of the appeal rather than merely confirmation of a conclusion they would probably have reached anyway, the observation should as a matter of law be put to the claimant. In the present case, Judge Wikeley accepted the Secretary of State’s submission that, because their strategies for reducing the care were determinative, the tribunal had erred by not putting them to the claimant’s father, so denying her a fair hearing.

Comment from CPAG

This decision is of note both because the Judge felt (like the Secretary of State) that the night-time needs were so clearly met that remittal to a fresh tribunal was unnecessary, and for its reasoning (with reference to CC v SSWP (ESA)) about the tribunal’s error in failing to put its observations to the claimant.

Summary

In this decision, the Court of Appeal refused the claimant’s challenge against the decision of the High Court in this case ([2022 EWHC 167 (Admin), 28 January 2022). As a result, the 2020 changes to the universal credit (UC) rules, which provided that the disabled student exemption to the general bar on entitlement to UC while receiving education included a requirement that the claimant had been determined to have limited capability for work at the time of their application for UC, were not unlawful. 

The claimant’s challenge was a challenge to the lawfulness of amendments made by the Universal Credit (Exceptions to the Requirement not to be receiving Education) (Amendment) Regulations 2020 (‘the 2020 Regulations’) so that, from 5 August 2020, a person receiving full-time education had to have obtained a determination that they had limited capability for work before making a claim for UC. The claimant had not been able to satisfy that requirement. Before the Court of Appeal, he argued that, in the judicial review decision, Mr Justice Swift had erred in failing to hold that the 2020 Regulations were unlawful as they were irrational and discriminatory, and that the Secretary of State had failed to have due regard to the equality impact requirements in section 149 of the Equality Act (‘the 2010 Act’). 

Lady Justice Simler, Lord Justice Lewis and Lady Justice Falk unanimously dismissed the claimant’s further appeal. Giving the lead decision, Lord Justice Lewis held that there was nothing wrong in the High Court’s conclusion that it had not been irrational not to consult before introducing the 2020 Regulations. The Secretary of State was amending the previous regulations introduced in 2013 ‘in order to achieve her policy aims’ (paragraph 28). Further, the way in which the 2020 Regulations achieved their purpose was not irrational and did not lead to arbitrary results. Although claimants could still (following the 2020 amendments) apply for employment and support allowance first and then (if assessed as having limited capability for work) apply for UC, it was not irrational ‘to close one, and the major, route by which a work capability assessment could be claimed by disabled students’ (paragraph 32). Neither were the 2020 Regulations irrational and discriminatory (the claimant no longer pursued an argument that they were in breach of human rights provisions). The Secretary of State had been entitled to distinguish between those disabled students ‘expected to finance their studies from the student support system’ and those already in receipt of UC and having already been assessed as having limited capability for work, where ‘the aim was not to discourage them from entering education’. That distinction, although arguably a hard one, was based on ‘differential treatment between groups for a justifiable, or valid reason’ (paragraphs 35–37). Regarding the Equality Act obligation, the Secretary of State ‘had sufficient information drawn to her attention to enable her to have due regard to the matters in section 149’, and was aware of and had considered the impact on disabled students (paragraphs 44–45).

Comment from CPAG

Further amendments to the rules from December 2021, requiring the limited capability for work determination before disabled students began their studies, were not at issue in this appeal. For more, see the article in Bulletin 287, p7)

Summary

The claimant was originally refused personal independence payment (PIP) in 2017 (that had been subject to a mandatory reconsideration in 2017 but was not changed). That original decision had again not been changed by a DWP ‘LEAP’ (Legal Entitlements and Administrative Practices) decision in 2020.  The claimant’s subsequent attempt to appeal against the 2017 decision, well outside the  13-month time limit, was rejected by the  First-tier Tribunal as being out of time.  

Judge Wikeley dismissed the claimant’s further appeal. The LEAP decision was correctly regarded as a refusal to revise the original 2017 decision for official error and no appeal rights arose from that. Regarding a late appeal against the mandatory reconsideration of 2017, that was well outside the usual (or ‘absolute’) 13-month time limit, and there was no ground for extending that on human rights grounds under the so-called ‘Adesina principle’. Reviewing relevant authority on that point, the judge had particular reference to the recent decision of Fordham J in Rakoczy v General Medical Council [2022] EWHC 890 (Admin). Although that was not technically binding, the judge considered it right to follow as a matter of judicial comity (and, in any case, he agreed with the analysis there). Rakoczy recognised that refusing a late appeal must  not impair the very essence of the right to appeal, and must pursue a legitimate aim with proportionality between the means employed and the aim. But it also recognised that, in Judge Wikeley’s words: ‘a case would need to be very exceptional indeed in order to benefit from the Adesina principle’ (paragraph 54). 

The judge also remarked that, had he had reference to Rakoczy v GMC when deciding MZ v SSWP (UC), he ‘might well have emphasised even more strenuously the truly exceptional nature of the Adesina principle’ (paragraph 58). In a final reflection, the judge said: ‘…the moral of Rakoczy v GMC is that the Adesina principle is very narrowly drawn indeed… Adesina is about the right of access to the justice system and can only apply if the effect of a time limit is to “restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired”’ (paragraph 71).

Note

See also the article in Bulletin 293, p9.

Summary

Between 2019 and 2021, the claimant, a single parent with two disabled sons, was overpaid universal credit (UC) due to official error, as the DWP mistakenly treated her youngest son as still in full-time, non-advanced education while he was undertaking an apprenticeship, and so wrongly still paid her the child element for him. An appeal tribunal (which had no jurisdiction on recoverability) found that the claimant had taken all reasonable steps to advise the department and clarify the situation, but repeated official error had continued the overpayment. She asked the department to waive recovery on three occasions, but (citing the policy, in particular in the April 2022 version of the Benefit Overpayment Recovery Guide, or ‘BORG’) that request was refused each time. The claimant sought judicial review of the last of those refusals.

In the High Court, Mrs Justice Steyn DBE granted the claimant’s application, holding that the Secretary of State’s decisions to refuse to waive the claimant’s UC overpayment were unlawful and breached the claimant’s legitimate expectation. The refusal to waive failed to give lawful regard to all relevant considerations. The judge noted that at the relevant time the official policy was comprised of policy in the BORG, which was publicly available, and in the Decision Maker’s Guide to Waiver (DMGW), which was not and contained some differently worded policy. The judge did not consider that the BORG was itself unlawful, as it was capable of being read with the DMGW to form a legitimate policy. But, considered the judge: ‘…the following matters were relevant considerations: (i) how the overpayment arose; (ii) the debtor’s conduct, and in particular whether she acted  in good faith, and whether and to what extent she took steps to notify the defendant of all relevant information and to query her entitlement.’ The refusal to grant a waiver addressed those ‘only to a very limited extent’ and was ‘manifestly inadequate’ (paragraph 129). It was also a relevant consideration whether recovery was in the public interest, and there was no evidence to show that had been considered. Further, the official policy was also that a relevant factor was whether the claimant had relied on the overpayment to their detriment. No consideration had been given to that, although the judge considered that the claimant had clearly spent the extra money on day-to-day living expenses, so putting her in the position of a ‘person who normally has very straitened finances and who relaxes the constraints on her ordinary living expenditure to the extent of spending what she reasonably believed to be the means at her disposal’ (paragraph 134).  

The refusal to waive recovery was also unlawful on grounds of being illogical: ‘the reasoning process in respect of the public interest and detrimental reliance grounds was so lacking, and therefore flawed, as to rob the decision of logic’ (paragraph 138). In particular, it was plainly at odds with case studies in the DMGW. The refusal was also unlawful on the grounds that the claimant had formed a legitimate expectation that she was entitled  to it. The ‘clear and unambiguous’ representations by the DWP to the claimant that she was entitled to the child element  (the claimant queried that twice) were capable of founding her legitimate expectation (paragraph 161). The claimant asserted this merely to assert that the Secretary of State could not resile from it in order to insist on recovery – ie, and not to argue that she remained entitled to the overpayment. On the facts of the case, including that the claimant’s ‘strenuous’ efforts to ‘clarify and query’ her entitlement, it would not be fair to permit the Secretary of State to resile from the claimant’s legitimate expectation (paragraph 169). Finally, there had been a failure to observe the ‘public sector equality duty’ (PSED) in section 149 of the Equality Act 2010 in formulating the waiver policy in 2022, with regard to possible adverse effects on people with disability: ‘In order to fulfil that duty, the Secretary of State had to assess the risk and extent of any adverse impact and the ways in which such risk might be eliminated. It is clear, in my view, that the defendant has not complied with the PSED in amending the waiver policy in February and April 2022’ (paragraph 210).

Comment from CPAG

See also the article in Bulletin 293, p7. The ‘legitimate expectation’ finding is new, in the context of benefit overpayment recovery, but the individual facts were crucial. The judge also declared that the failure to publish the DMGW had been unlawful. However, she noted that since the hearing the Secretary of State had published a revised version of the BORG [a February 2023 version is now available] and had withdrawn the DMGW,  so that: ‘It follows that the whole of  the current policy has now been published’ (paragraph 118). The judge made no comment about the 2023 BORG, or whether it is proper access to justice to create such complex policy and to deny claimants a right of appeal about recovery of overpayments, so that resort to judicial review is their only legal recourse – but many will feel it is not.