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Summary

In this decision, the Upper Tribunal held that the two-year past presence test in DLA was unlawful, in that it discriminated between children who had been living in the UK and those who had been living abroad (and were thus unable to satisfy the test). The past presence test itself was not unlawful, but instead should be applied as one requiring presence for 26 weeks in the last 52 weeks, rather than 104 in the last 156. 

The claimants were parents of disabled children who were British nationals. The parents had lived and worked in the UK, but the children had been born abroad. On return to the UK, the children’s claims for DLA were both refused for failure of the past presence test. On appeal, it was argued for them that this was in breach of Article 14 (prohibition of discrimination) of the European Convention on Human Rights, and that the Upper Tribunal’s decision in FM v SSWP (DLA) [2017] UKUT 380 (AAC); [2018] PTSR 1036; [2019] AACR 8 was wrongly decided. The First-tier Tribunal rejected those arguments in both cases.

Judge Ward allowed the claimants’ further appeals and substituted a decision that the claimants were both entitled to DLA from the point that they satisfied the 26-week past presence test. The extension of the 26 weeks in the last 52-week period to one of 104 weeks in the last 156 involved an unjustified difference in treatment of the claimants (compared to children living in the UK throughout who would satisfy the increased period), and was therefore unlawful discrimination under the Article 14 read with Article 1 of Protocol 1 (right to property) of the Convention and was to be disapplied. The judge declined jurisdiction regarding the claimants’ separate argument that the increase in the period of the past presence test was in breach of the public sector equality duty. Although indicating a difference from FM, which held that the increased past presence test did not involve such a breach, adopting the obiter reasoning in A-K v SSWP (DLA) [2017] UKUT 420 (AAC); [2018] 1 WLR 2657, such arguments had to be raised on judicial review, which had not been done here.

Regarding discrimination, the judge held the different treatment of children coming from abroad could not be justified in the context of the increase of the past presence test. The aim of the increase, held the judge, was ‘driven by the need to save money…no coherent explanation has been put forward for extending the past presence test from six months to two years (the rationale put forward, somewhat tentatively, for a two-year period had previously been put forward as justifying the six-month period) and the lack of such explanation supports the view that the more onerous condition was set to save money by reducing the number of those who could qualify, by making them wait’ (paragraph 140). Saving money could be a legitimate aim but, applying R (DA) v SSWP [2019] UKSC 21, the measure could be discriminatory if ‘manifestly without reasonable foundation’, and deciding that involved a ‘proactive’ test of reasonableness (paragraph 143). Although children aged under three were exempt from the increase in the past presence test, those aged three to 16 were not, and the judge held that in the money-saving aim: ‘there was a lack of consideration of the interests of children aged three to 16 …These were complex and substantial, including by way of the knock-on effects on other benefits and the impact on the family in dealing with disability with a reduced level of assistance’. This lack of consideration was a breach of Article 3 of the United Nations Convention on the Rights of the Child, which although not formally binding in the UK contributed to the judge’s conclusion that the Secretary of State had failed to show that the increase was proportionate to the aim (paragraph 158). The result was that the increase in the past presence test to 156 weeks in the last 104 was to be disapplied, leaving intact the pre-existing period of 26 weeks in the last 52.

Summary

The claimant suffered from alcohol dependency which affected his functioning in various ways, both physically and mentally. His application for PIP was refused. That decision was upheld by the First-tier Tribunal (FtT), which although finding the claimant to be a credible witness who had alcohol dependency, nevertheless also refused to accept his evidence on a number of points, and considered his drinking to be a ‘lifestyle choice.’

Judge Clough allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred in particular in making seemingly contradictory findings and not explaining how it resolved the case. ‘It is fair to say,’ she said, ‘that in the absence of reasons for the conclusions reached by the FtT in this case, particularly the contradiction of the appellant’s “credible” evidence on the matter, as well as a finding of him suffering from alcohol misuse but that his limited functionality was due to a “lifestyle choice”, it is difficult to comprehend how this decision was reached. By failing to adequately reason its findings in these regards, the FtT have materially erred in law in this case’ (paragraph 29).

The judge went on to review how alcohol dependency may affect functioning and set out some guidance for tribunals in assessing PIP entitlement in such cases. This included noting that the relevant medical term is now ‘alcohol use disorder’ (AUD), and that essential caselaw is R(DLA) 6/06 and SD v SSWP (PIP) [2017] UKUT 310 (AAC). More widely, said the judge, it was ‘ imperative that the FtT do not make finding that the appellant is alcohol dependent, and [my emphasis] that the consumption of alcohol is a “lifestyle choice” as was the case in the current appeal. These two findings are oxymoronic in nature. To say that an appellant has alcohol misuse, and that his/her alcohol consumption is a lifestyle choice, is akin to saying that the appellant has arthritis in his knees, and this arthritis, with associated pain in his knees, is a lifestyle choice: it does not make sense’ (paragraph 46).

In summary, tribunals were required to undertake a careful process of fact finding. The judge said: ‘Alcohol use disorder is a complex mental health condition, which can have very serious implications for a patient. It may lead to secondary and/or possibly unconnected medical conditions, and will have mental and/or physical impacts on an appellant. It is these impacts which may affect the appellant’s functionality in general and in relation to each of the PIP activities and descriptors. When a tribunal makes a determination of eligibility for an alcohol dependent appellant, it must be sure to very carefully consider “reliability” under regulation 4 of the PIP Regulations 2013, as well as the 50 per cent rule under regulation 7 of the PIP Regulations 2013. Both physical and mental impacts must be taken into account, and the evidence must be adequately, yet respectfully, tested before it can be said to be credible and reliable’ (paragraph 76).

Comment from CPAG

This decision does not break new legal ground regarding alcohol dependency and PIP (in essence the approach in R(DLA) 6/06 and in SD v SSWP is approved). However, it does provide a comprehensive review of the most important authority and the detailed fact finding that needs to be undertaken by tribunals in such cases.

Summary

The claimant was refused UC on the basis that she did not satisfy the right to reside test. That decision was upheld by the First-tier Tribunal. In the event, it was agreed by all parties at the Upper Tribunal that that was wrong and that the claimant did in fact have a right to reside and was entitled to UC.

However, in the course of its proceedings the First-tier Tribunal had refused to make an order requiring the DWP to provide information regarding the claimant’s estranged husband. That was despite the fact that the tribunal was made aware that the claimant was separated following domestic abuse and that there was a non-molestation order in place against the husband. The District Tribunal Judge in the First-tier Tribunal insisted that even then the claimant needed to make contact with her husband through solicitors. In the Upper Tribunal, Judge Ward did not have to formally decide whether the tribunal was in error in this regard. But he did provide obiter (non-binding) comment, in particular regarding the First-tier Tribunal’s (‘FTT’) powers to make a relevant order under rule 16 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, SI No.2685 (‘the FTT’s Rules’). The judge said:

‘As to the the FTT’s apparent reluctance to make the order sought, while it is not for me to second-guess their approach to matters of case management, it does seem to me that, speaking generally, in the context of domestic violence and a non-molestation injunction there may realistically be limitations on what a party can be expected to achieve on their own initiative, even with a degree of support, and that in such circumstances the FTT’s power to make an order under rule 16 of the FTT’s Rules may be a useful tool for enabling DWP’s data protection issues to be overcome and enabling justice to be done. I do understand that intervention by the FTT should not be a first resort and advisers seeking such orders may be well-advised to make clear in a stand-alone application not only what they are seeking and why, but what steps have been taken, unsuccessfully, to date’ (paragraph 8).

Comment from CPAG

Though formally not binding, Judge Ward’s comments provide a clear steer to tribunals that they should be aware of their powers under rule 16 and not simply expect claimants to exhaust all routes themselves. However, neither should rule 16 interventions simply a first resort, and advisers should set out their position clearly when applying to the tribunal for such an intervention.

Summary

The claimant was entitled to income support (IS) on the basis that she was a carer for her friend, who was entitled to the care component of disability living allowance (DLA) at either the middle or the higher rate. In July 2018, on transfer to personal independence payment (PIP), the DLA ceased and no award of PIP daily living component was made. On 15 August 2018, the claimant’s entitlement to IS was ended (from September, after the statutory ‘run-on’ period). In July 2019, the claimant’s friend was successful in her appeal against the refusal to award the daily living component of PIP, so that she was awarded the standard rate fully backdated to July 2018. Meanwhile, the claimant had not claimed UC but had relied on child tax credits and child benefit. The claimant asked for reinstatement of her IS both in July 2019 and again in September 2019 after she was re-awarded carer’s allowance (CA), backdated to July 2018. On both occasions the response from the DWP was that she must claim UC instead. Eventually, the claimant got representation and in December 2019 explicitly requested a revision of the August 2018 termination of her IS. Following a refusal to revise, the matter came before a First-tier Tribunal who refused the appeal, on the basis that the subsequent award of PIP and CA were changes in circumstance after the termination and could not be taken into account.

Judge Rowland allowed the claimant’s appeal and substituted a decision that the claimant’s entitlement to IS was reinstated from August 2018 – ie, from the date it had been terminated by the Department. That the claimant had requested her entitlement to be reinstated in July and September 2019 meant that potential problems regarding absolute time limits for an ‘any grounds’ revision did not arise. He agreed with the claimant’s representative that the awarding of the standard rate of the daily living component of PIP as applied on appeal meant that the termination of the IS fell to be revised. It was not, as had been argued by the Secretary of State, a change of circumstance after the date of the termination which therefore (per section 12 Social Security Act 1998) could not be taken into account. Rather than being a change of circumstance, the award of PIP back to July 2018 was ‘declaratory of a state of affairs that is to be taken as always having existed’ throughout the period of entitlement. So although the Department’s decision terminating IS ‘appeared to be correct’ when it was made, the subsequent award of the PIP daily living component and the related re-award of CA actually showed the decision to ‘have been wrong when it was made’ (paragraph 26). Therefore the decision did indeed fall to be revised. Further: ‘It follows that the Secretary of State was wrong to advise the claimant on 9 July 2019 and 6 September 2019 that she could claim universal credit, without also advising her that she could instead make a late (but not irredeemably late) application for revision…of the decision of 15 August 2018 ending her entitlement to income support’ (paragraph 31).

Expanding on his reasoning, the judge said: ‘Insofar as a decision is concerned with entitlement, that must be the correct approach. It was made clear by the Court of Appeal in Reilly v Secretary of State for Work and Pensions [2016] EWCA Civ 413; [2017] Q.B. 257; [2017] AACR 14 at [137] that this is the way that retrospective legislation works and it seems to me that a retrospective decision as to entitlement made by either the Secretary of State or a tribunal must operate in the same way. Indeed, this must apply not only to decisions as to a claimant’s underlying entitlement but also to decisions as to whether a benefit is “payable”, which is the term used where a claimant has not only an underlying “entitlement” but also an entitlement to receive payments’ (paragraph 27). Although the relevant IS legislation regarding entitlement for carers (at Schedule IB paragraph 4(a)(i) and (b) of the Income Support (General) Regulations 1987, SI No.1967) refers to being ‘in receipt’ of the benefit required, it was right here to treat that as equivalent to ‘payable’. Otherwise, there would have been no way of paying arrears of IS to someone in the claimant’s position, even before the introduction of UC. That would have been ‘plainly unfair’, and the judge concluded: ‘I am therefore satisfied that the words “in receipt of” in paragraph 4 of Schedule 1 to the 1987 Income Support Regulations are not to be given their literal meaning but are to be read as “entitled to receive payments of”. Such entitlement may be conferred by a decision made retrospectively’ (paragraph 30).

Comment from CPAG

The principle established here that a later backdated entitlement decision is not change of circumstance but rather is ‘declaratory of a state of affairs that has always existed’ might apply on other facts.

Summary

The claimants were a couple getting UC since May 2018. According to the DWP, the claimant’s partner was sent a ‘to do’ instruction on her UC online account to accept her claimant commitments by 29 March 2020. Following a warning and extension of the time for complying, the couple’s claim was ‘closed’ (ie, entitlement was terminated) on 14 April 2020. Following mandatory reconsideration, the First-tier Tribunal (FTT) rejected the claimant’s appeal, deciding that the failure of the claimant’s partner ‘was due to carelessness or indifference, and no good reason for this failure is made out’.

Judge Wikeley allowed the claimants’ further appeal and substituted a decision that the claim had been wrongly ‘closed’ and that they remained entitled to UC from 14 April 2020. The Department had erred in terminating an existing award for the alleged failure (rather than considering a sanction). Additionally, the tribunal had erred in failing to consider whether the DWP had complied with its duty under rule 24(4)(b) of the Tribunal Procedure (First-tier Tribunal) Rules 2008, SI No.2685 to produce ‘copies of all documents relevant to the case in the decision maker’s possession’, and in unfairly concluding that the partner had failed to agree a claimant commitment without actually knowing what had been required of her.

Before the Upper Tribunal, the Secretary of State submitted that ‘there is no legal basis to consider ending the award of UC for failing to accept the revised claimant commitment since the previous claimant commitment already in place still applies... The requirements to participate in an interview to review commitments during an award would be under the provisions of section 23 of the WRA [Welfare Reform Act 2012] and could only ever result in a sanctionable failure if the claimant failed to comply with the interview requirement for no good reason.’ Any failure to take part in a claimant commitment review meeting was sanctionable, but ‘not reason to suspend or terminate an award of UC’ (quoted at paragraph 14). As to good reason for not complying, the Secretary of State’s representative pointed out that for existing UC claimants as of 30 March 2020, who already had an existing accepted claimant commitment, any work search or work availability requirements were expressly lifted in response to the Covid-19 pandemic and no sanctions were imposed for failing to comply with work-related requirements.

As to the tribunal, it had heard no oral evidence. Judge Wikeley said: ‘Putting it mildly, the DWP’s written response to the FTT appeal was on the thin side. There was no copy of the original universal credit claim. The claimant commitment document was not included. Crucially, there was no sight at all of the crucial online ‘To-do’ dated 23 March 2020’ (paragraph 6). Judge Wikeley observed that the moral of this case was: ‘… a good example of why First-tier Tribunals may sometimes need to be wary about taking at face value the Department for Work and Pensions (DWP)’s written submission in response to a claimant’s appeal. This is especially so where the DWP has been economical with the photocopier’ (paragraph 1).

Comment from CPAG

The judge seems not to have had reference to any possible relevance of the need under section 14(5) of the Welfare Reform Act for a claimant to accept ‘the most up-to-date’ version of the claimant commitment – although clearly there was no sign of that in the evidence. The somewhat casual attitude taken to the ‘closure’ of the claim in this case by both the Department and the First-tier Tribunal led to material error. Judge Wikeley’s observation that tribunals may need to be wary about accepting a DWP submission at face value in such cases is well made.

Summary

The claimant began a Master of Arts course at Goldsmiths, University of London. A ‘confirmation of enrolment’ document provided by Goldsmiths said that the course was ‘full time’ and was for 21 hours or more of study per week. Two further documents referred to at least six hours per week independent study. The claimant was refused UC on the basis that he was in ‘full-time advanced education’ and no relevant exceptions applied. The claimant’s appeal was refused by the First-tier Tribunal, who said that the college’s description of the course as full time was determinative of the matter.

Judge Rowley refused the claimant’s further appeal. The tribunal had not erred in finding that the claimant was in full-time advanced education and so not entitled to UC. Regulation 12(2)(a) of the Universal Credit Regulations 2013 provides that a definition of when a claimant is ‘receiving education’ (and so not entitled to UC) is if s/he is in ‘full-time advanced education.’ There was no dispute in this case that the claimant was in advanced education. His contention was that he was not in ‘full-time’ education as he managed his own study hours so that he was still available for work, although he also pointed to the different reports of minimum study hours in the documents from the college. Those arguments were rejected by the judge.

A number of principles emerged from the existing authority on whether a course was ‘full time’: (a) whether or not a person is undertaking a full-time course is a ‘question of fact for the tribunal having regard to the circumstances in each particular case’; (b) the words ‘full-time’ relate to the course and not to the student. ‘Specifically, they do not permit the matter to be determined by reference to the amount of time which the student happens to dedicate to their studies’; (c) evidence from the educational establishment as to whether or not the course is full time is ‘not necessarily conclusive, but it ought to be accepted as such unless it is inconclusive on its face, or is challenged by relevant evidence which at least raises the possibility that it ought to be rejected, and any evidence adduced in rebuttal should be weighty in content’; (d) if the course is offered as full-time course, ‘the presumption is that the recipient is in full-time education’. There may be exceptions to the rule, such where a student is granted exemptions from part of the course (paragraph 19). The judge accepted the Secretary of State’s submissions that the college had consistently described the course as full time, and – with regard to the principles above – there was nothing in the evidence to challenge or rebut the resulting presumption that the claimant was on a full-time course.

Summary

The claimant had been entitled to income-related employment and support allowance (ESA) (she was not entitled to contributory ESA because she did not satisfy the contribution conditions). She was assessed as having limited capability for work-related activity (LCWRA) – ie, she was in the support group. The income-related ESA award came to an end because her partner began full-time work. A claim for UC was made six months later. Although she was assessed as having LCWRA, it was decided that the standard three-month waiting period would apply before the LCWRA element could be included in the award. The claimant disputed that, on the basis that she had been assessed as having LCWRA in her ESA award, and that had only ended because her partner started work. The First-tier Tribunal dismissed the appeal.

Judge Wikeley allowed the claimant’s further appeal and substituted a decision that the LCWRA was to be included in the UC award from the start of the claim – ie, the standard three-month waiting period did not apply. That was because the exception to the waiting period in regulation 21 of the Universal Credit (Transitional Provisions) Regulations 2014 (SI No.1230) applied. That regulation was concerned with transition to UC from legacy benefits in ‘credits only’ cases such as the claimant’s – ie, where an award of UC was made to a claimant entitled to national insurance (NI) credits for limited capability for work (LCW) on the date of the claim for UC, but not to an award of ESA. Under subparagraphs (4) and (5) of the regulation, where the claimant had been determined to have LCWRA then on transfer to UC, she was treated as having LCWRA and the three-month waiting period was not to apply.

The tribunal had refused the appeal because it considered that the claimant was not entitled to credits following the termination of the award of ESA. But Judge Wikeley agreed (as did the Secretary of State) that in fact the claimant had remained entitled to credits for LCW, under regulation 8B(2)(a)(iv) of the Social Security (Credits) Regulations 1975 (SI No.556). This provides that if the only reason a claimant is not entitled to ESA is because she did not satisfy the contribution conditions, she can nonetheless receive NI credits equivalent to the lower earnings limit for the relevant period. The Secretary of State’s representative explained that in these circumstances there had been no need for a subsequent claim for credits, as, ‘any decision awarding ESA automatically awards credits, and if entitlement to ESA ends for a reason other than the basic condition of having LCW, as in the present case, the disallowance decision also automatically continues the award of credits’ (quoted in paragraph 20). Judge Wikeley held that the decision maker’s submission to the tribunal had failed to take account of regulation 21 of the Transitional Provisions Regulations: ‘In doing so, the original written response failed to address a key relevant statutory provision and set the tribunal on the wrong path’ (paragraph 28).

Comment from CPAG

The Universal Credit (Transitional Provisions) Regulations are a vital part of the arrangements for transition from legacy benefits to UC, and it is concerning that the decision maker was apparently ignorant of them. The explanation from the Secretary of State of how credits for limited capability for work may continue (ie, where ESA was not ended due to a finding of not having LCW) is helpful.

Summary

The claimant’s 2008 claim for HB was refused on the basis that she did not have a right to reside that was effective for entitlement to that benefit. There was no dispute that the claimant had a ‘derivative’ right to reside as the primary carer of a child of a European Economic Area (EEA) national who had been employed in the UK. But the local authority considered that right was negated by the fact that she had ‘unexhausted’ right to reside as a jobseeker (which in itself is not effective for HB entitlement). The argument was that, because she was a jobseeker, the claimant was an ‘exempt person’ under regulation 16 of the Immigration (European Economic Area) Regulations 2016 (‘the EEA Regulations’), with the effect that derivative rights under that regulation could not apply. The First-tier Tribunal allowed the claimant’s appeal, although mainly on the alternative basis that she had a permanent right to reside.

Judge Wright allowed the further appeal of the local authority in so far as the tribunal had erred in not providing adequate opportunity for them to respond regarding the question of permanent right to reside. But that was not material in that he nevertheless also held that the claimant did indeed have a derivative right to reside that was not diminished or removed by the fact that she also had a right to reside as a jobseeker. In so holding, he agreed with, and applied a concession by, the Secretary of State that to hold otherwise was contrary to European law and so unlawful.

It was true that, straightforwardly, the wording of regulation 16 classified the claimant (as someone with a jobseeker right to reside) as an ‘exempt person’, and so apparently incapable of having a concurrent derivative right to reside. But that would not be a lawful result. In the decision of the Court of Justice of the European Union in Jobcenter Krefeld-Widerspruchsstelle v JD (Case C-181/19) [2020], it had been clearly held that a derivative right to reside, based as it was in rights under European rights in Article 10 of Regulation 492/2011, could not be diminished by the fact that a claimant also had a specific right to reside as a jobseeker. That was rightly accepted by the Secretary of State. The effect of that, as Judge Wright clarified, was that the EEA Regulations ‘could not, as a matter of then directly applicable EU law, have had the effect of excluding the claimant from relying on her derivative right to reside as a primary carer of a child in education on her June 2018 claim for housing benefit’ (paragraph 29).

Comment by CPAG

This very clear decision should be authoritative domestic authority that a jobseeker right to reside cannot diminish or otherwise negate a derivative right to reside. Its effect is not limited to HB (eg, it should also apply in universal credit). Concerned as it is with rights to reside under the EEA Regulations, it is of course limited to cases in which those rights may still apply.

Summary

The claimant had been entitled to the high rate of both the care and the mobility components of DLA. On 17 February 2010, that was removed (with retrospective effect) by the Secretary of State, on the basis that her parttime work and appearance in a television programme (Come Dine with Me) showed that she was not sufficiently disabled. The claimant’s appeal against that was upheld by a First-tier Tribunal on 31 August 2011. In March 2018, the Secretary of State superseded the decision of the tribunal, apparently on the basis that it had been made on the basis of a mistake about or ignorance of a material fact – namely that the claimant was still doing some work on the date of the tribunal decision – ie, 31 August 2011. A second First-tier Tribunal upheld that decision. The claimant was therefore held to be not entitled to DLA from 31 August 2011 and liable to repay a substantial overpayment.

Judge Wright allowed the claimant’s further appeal and held that the claimant had remained entitled to DLA and had not been overpaid. The second First-tier Tribunal had erred in not properly investigating the alleged basis for the Secretary of State’s March 2018 supersession of the decision of the first tribunal. Moreover, there was no evidence that the ground of alleged error/mistake regarding a material fact by that tribunal was made out. That was because the 31 August 2011 tribunal was not considering the facts as at the date of the hearing. Rather, it was (and could be) only concerned with the facts at the date of the decision under appeal in that tribunal – ie, the decision of 17 February 2010.

Regarding the failure of the second tribunal to investigate the alleged grounds for a supersession, Judge Wright said: ‘The first two issues that therefore ought to have arisen on this appeal was, first, to identify the status of the decision that the Secretary of State had purported to supersede and, second, establish whether the Secretary of State’s basis for her supersession decision was one which was available to her under the law enacted under the Social Security Act 1998. It is matter of regret that the tribunal failed in any proper sense to confront and determine either of these key issues’ (paragraph 12). Regarding the irrelevance of the alleged work being done by the claimant on 31 August 2011, he said: ‘The first fundamental difficulty here is that the entitlement decision under appeal to the 31 August 2011 First-tier Tribunal was dated 17 February 2010. It is an axiomatic principle of social security law that the 31 August 2011 First-tier Tribunal could not take into account circumstances obtaining after 17 February 2010: see section 12(8)(b) of the Social Security Act 1998. For the purposes of these appeals that meant that the 31 August 2011 First-tier Tribunal was not interested in how the appellant was or what she may have been doing in August 2011, save where those August 2011 circumstances usefully and properly informed how the appellant was (in terms of her functioning relevant to DLA) on and before 17 February 2010’ (paragraph 24).

Comment from CPAG

The decision is a pertinent reminder to tribunals that where supersession is involved, the alleged grounds must be evaluated. That a tribunal is restricted to considering the facts as at the date of decision under appeal is not new but, alongside the reminder about evaluating supersession grounds, is clearly very important in cases such as this where the Secretary of State is purporting to revisit a decision of a tribunal.

Summary

The claimant was entitled to childcare costs (ie, a £175 a week earnings disregard) as part of her HB. During the COVID ‘lockdown’, the actual provision of childcare ceased from 23 March 2020; however, the claimant’s contractual liability to pay the childcare provider continued. The local authority stopped including the childcare costs disregard from 1 April 2020, on the basis that the childcare was no longer being provided. As a result, the claimant had to terminate the childcare arrangement. The First-tier Tribunal allowed the claimant’s appeal, holding that given that the contractual arrangement with the childcare provider continued to subsist, and liability incurred, it was incorrect to stop childcare costs.

Judge Hemingway allowed the local authority’s further appeal. The tribunal had erred in not investigating and making findings as to whether, given the facts of the case and the context of ‘lockdown’, it could correctly be said that the relevant childcare arrangements had continued. However, the local authority’s argument that the mere fact of an interruption of the childcare meant that entitlement to costs was lost was incorrect, and the judge did not go so far as to substitute a decision that the claimant had indeed lost her entitlement. Instead, the case was remitted to a new tribunal to decide whether on the facts the childcare arrangements could be said to have continued.

The judge considered the application of the HB childcare costs rule, at regulation 26 of the Housing Benefit Regulations 2006. That begins (at subparagraph (1)) with the wording, ‘This regulation applies where a claimant is incurring relevant child care charges…’, and (at subparagraph (6)) refers to where ‘charges are paid by the claimant for care which is provided…’. The local authority argument was that childcare costs can only ever be applied in circumstances where actual physical childcare is being provided, and that the subparagraph (6) wording was relevant to that argument. But the judge rejected that. The reference to ‘incurring relevant childcare charges’ in the rule was: ‘simply used as a prelude to the specification of the relevant period in the child’s life when the childcare charges must be incurred in order to be relevant charges and in order for the disregard to potentially apply. So, regulation 28(6) is not to be interpreted as supporting the proposition that actual physical childcare must always be provided on any given day or week for the disregard to apply’ (paragraph 15). There was in fact nothing in regulation 26 which required such continual provision. If it were to be interpreted in the way the local authority wanted, then even clearly routine interruptions, such as holidays and illness, would have to be reported and adjustment made, leading to ‘substantial’ and unintended administrative burdens. Rather, ‘…what is required when deciding whether charges amount to relevant childcare charges is an overall assessment as to the circumstances as a whole and the purpose for which payments are being made rather than an unduly restrictive one based solely upon whether there has been provision of actual care on each and every day in respect of which a payment has been made’ (paragraphs 19–20).

However, the First-tier Tribunal had erred in not undertaking a properly overall assessment. Contractual obligations were relevant in that, but not determinative. It could not be assumed that the ‘lockdown’ restrictions were necessarily the same as temporary interruptions in childcare caused by holidays or illness. The judge held: ‘The position regarding lockdown and its prospective lifting was uncertain. There was arguably no immediate expectation of a speedy return to normality.

That being so there was a requirement upon the [First-tier Tribunal], in my view, to consider whether the payments which were being made and had been made by the claimant since the imposition of the restrictions had taken on a different nature and could no longer be regarded, when taking an overall view, as relevant childcare costs’ (paragraph 22). The judge thought it viable for him to substitute a decision, but that fairness at least required giving the claimant a chance to argue why the payments she continued to make after lockdown were relevant childcare charge.

Comment from CPAG

The absence of clear provision regarding childcare costs during lockdown inevitably gives rise to disputes. This decision is authority that the mere interruption of childcare did not (and does not) mean that relevant childcare arrangements ceased. However, there is a clear implication that cessation in the context of lockdown arrangements may have brought that about in an individual case; nevertheless, the particular facts will be crucial.

Summary

The claimant claimed asylum in the UK in February 2016. On 18 May 2019, she was told that her claim for asylum was successful. The letter notifying her of that also said: ‘This letter does not confirm you have leave, give you the right to work or allow you access to benefits. To do this you have to enrol for a biometric resident permit…’. A second Home Office letter with the same date said the claimant must supply her biometrics and: ‘If you do not, we will be unable to issue you with this proof of your immigration status in the United Kingdom. This means that your asylum support (if you are in receipt of it) will end and you will not be able to claim benefits or start work…’. The claimant’s biometric residence permit (BRP) was not issued until 29 August 2019. On 12 September 2019, the Home Office wrote to the claimant to say that her asylum support was to end, and: ‘You may now take employment or claim benefits to support yourself and your dependants.’ The claimant then submitted her claim for child benefit to HM Revenue and Customs (HMRC), which was received on 16 September. However, HMRC refused to backdate entitlement more than three months, despite the rules providing for backdating to the date of the claim for asylum in February. That was on the grounds that her claim for child benefit was allegedly not made within three months of the date of the letter allowing her claim for asylum (which HMRC alleged was 18 May), as the rules require. On appeal, the First-tier Tribunal accepted the claimant’s argument that on the facts she should have been taken to have been notified of her refugee status on 29 August, the date that she was given her refugee’s BRP, and that therefore her claim was made within the specified three months and could be backdated in full.

In the Upper Tribunal, Judge Gullick KC rejected HMRC’s further appeal. The tribunal had reached the correct conclusion on the facts. In so doing, he considered the relevant rule, at regulation 6(2)(d) of the Child Benefit and Guardian’s Allowance (Administration) Regulations 2003, SI No.492. That provides that backdating to the date of the asylum claim is possible where a person who has claimed asylum claims child benefit and ’satisfies the following conditions— (i) the person is notified that he has been recorded as a refugee by the Secretary of State; and (ii) he claims that benefit or allowance within three months of receiving that notification’. In this case, the Home Office correspondence was so misleading that the claimant reasonably believed that should could not be entitled to benefit until she had been issued with a BRP. The tribunal had wrongly held that the reference to being ‘recorded as a refugee’ necessarily referred to the issue of the BRP. That was not correct, and it was not the case that the three-month period could never begin with receipt of the notice of refugee status. Rather, on the facts of this case, the Home Office letters ‘incorrectly stated that a claim for child benefit could not be made until receipt of the BRP’, and so were ‘not valid’ as notifications of refugee status for the purpose of the backdating rule at regulation 6(2)(d). The arguments of HMRC that the letters did not refer to child benefit and that other publicly available information referred to the date of the notification letter were dismissed. The judge said:

‘In my judgment, adopting the approach to statutory construction which I have set out above, the notification of refugee status of the type sent to the respondent on 18 May 2019 was not valid notification of the recording of refugee status for the purpose of regulation 6(2)(d) of the 2003 Regulations. That is because the notification incorrectly stated that a claim for child benefit could not be made until receipt of the BRP. In my judgment, a notification of this sort which contains a statement denying the existence of the very right to claim an entitlement which it would otherwise confer cannot, in this context, be a valid notification’ (paragraph 56).

Comment fom CPAG

The judge’s concentration on the content of the Home Office letters in this case is important: it was accepted by all parties that had the Home Office merely stated that the claimant had been recognised as a refugee, the time limit would have started to run.

Summary

The claimant began to be overpaid income- related ESA in 2014, when his daughter moved into his home, meaning that he lost entitlement to the severe disability premium, but the premium continued to be included in his award. The claimant did not report the fact of his daughter moving in to the DWP. His daughter, who was entitled to ESA in her own right, did report the move in the context of her own claim. When the DWP eventually realised the overpayment, in 2019, it held that it was recoverable from the claimant on the basis that it had been caused by his failure to report a relevant fact – ie, his daughter moving in. The claimant’s appeal about the recoverability was dismissed by the First-tier Tribunal. 

Judge West dismissed the claimant’s further appeal (although did allow a related appeal regarding the imposition of a penalty against the claimant). The claimant had been under a duty to report the change, under regulations 32(1A) and (1B) of the Social Security (Claims and Payments) Regulations 1987. He had never denied that he knew the change needed to be reported. The claimant argued that since his daughter reported the change in the context of her own claim, the Secretary of State would have known that she was in his home, and since there was no duty to disclose to a person something that they already knew, therefore there could have been no failure on his part. But the tribunal had correctly rejected that on the basis that in the lead case on the issue, Hinchy v SSWP [2015] 1 WLR 967, it had been held that the onus was on the claimant to report a relevant change to the relevant office (not the Secretary of State as an abstract entity). Further, there was no evidence that there was any electronic communication under which the daughter’s disclosure would have been passed to the claimant’s ESA team. The tribunal therefore did not err in holding that the claimant had been under a duty (specifically, under regulation 32(1B)) to disclose the fact of his daughter moving in with him. Per the decision in Hinchy, held Judge West: ‘It is not for the claimant to form views about what may go on behind the scenes in the social security or other benefit offices. His duty is to comply with his obligations as to disclosure, whether under regulation 32(1A) or 32(1B). The claimant is not concerned or entitled to make any assumptions about the internal administrative arrangements of the department’ (paragraph 26). 

The claimant had also cited the decision of the Northern Ireland Commissioner in SK v Department for Communities (ESA) [2020] NICom 73 (decision number C9/20-21(ESA)). In that case, it had been accepted that the award of disability living allowance (DLA) to the claimant had been notified to the section dealing with his ESA, and also that when the DLA award stopped that would also have been notified to the ESA section. The Commissioner had held that such communication had indeed occurred and that the claimant had been entitled to assume, in the post-Hinchy context of a modern computerised system, that it would, so relieving him of the duty to disclose the ending of his DLA. But the facts in SK were different from that in the present case, where no such electronic communication had occurred, and so SK fell to be distinguished on the facts. However, said Judge West: ‘At some point the Upper Tribunal will have to grapple with the decision in Hinchy in the light of 21st century developments in computer technology. That was very much an analogue decision relating to a paper-based system and the question which will fall for decision is how it now translates into the computerised and digital age’ (paragraph 35). Further, there was ‘force ‘in the comment in SK that the paper- based system contemplated in Hinchy had been consigned to the past. ‘It is plainly time,’ said Judge West, ‘that the factual circumstances underpinning the decision in Hinchy are considered afresh in order to reflect the reasonably expected standards of 21st century benefits administration. In that context in the appropriate case it will have to be determined, on the appropriate facts, whether and to what extent a social entitlement claimant in 2023 is, or is not, entitled to make any assumptions about the internal administrative arrangements of the Department…’ (paragraph 37).