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Summary

The claimant was entitled to ESA. He was required to submit to a medical examination, by telephone, as part of the work capability assessment (WCA). At the medical, he responded to all questions simply by answering that his circumstances had not changed. The conversation was ended by the healthcare professional due the claimant’s allegedly ‘aggressive’ manner. He was found (including by the First-tier Tribunal) to have failed to submit to the medical and had not shown good cause for having done so, and as a result his ESA was terminated. 

Judge Wikeley allowed the claimant’s appeal and a decision substituted setting aside the disallowance of the claimant’s ESA. The tribunal had been entitled to find that the claimant had not submitted to a medical examination, as he had not meaningfully participated. But it erred regarding whether the claimant had good cause for having done so. That is because the tribunal failed to satisfy itself that the notification letter sent to the claimant had been sufficiently clear and unambiguous about what he was required to do, and the consequences of not doing so. 

The relevant rule (on the facts of this case) was at regulation 23 of the Employment and Support Allowance Regulations 2008. That provides that where a claimant fails without good cause ‘to attend for or submit to’ a medical examination, they are to be treated as not having limited capability for work (and so not entitled to ESA). Judge Wikeley noted that there were similar provisions at regulation 35 of the 2013 version of the ESA regulations (ie, for ‘new-style’ ESA) and at regulation 44 of the Universal Credit Regulations 2013, SI 2013 No.376. In dismissing the appeal, the First-tier Tribunal stated that the claimant had attempted to obstruct the medical with ‘intransigence’, and that it was satisfied that the DWP had applied the principles in PPE v SSWP (ESA) [2020] UKUT 59 (AAC), specifically that the claimant had been notified of the medical and the consequences of not participating. However, Judge Wikeley did not agree. The tribunal had legitimately held that the claimant did not ‘submit’ to the examination. But (as submitted by the Secretary of State) the tribunal had erred by failing adequately to consider whether proper warning had been given for any failure to ‘submit’ to an examination. The appointment letter did not contain a statement explaining that a failure to submit could result in a disallowance of the ESA. The tribunal had erred in not properly considering this and, given that there was in fact no adequate warning, the disallowance of the claimant’s ESA was set aside. 

Comment from CPAG

It should be noted that the judge did not want to disturb the finding that, on the facts, the claimant had not submitted to the medical. The tribunal’s error lay in not properly considering the lack of an explicit warning of the consequences for not doing so in the appointment letter.

Summary

The claimant had undergone natural migration from income-related employment and support allowance (ESA) to UC. Her UC included a transitional SDP element, as well as a carer element. In 2021, having notified a change in circumstances – namely, having been diagnosed with polymyalgia – the claimant was assessed as having limited capability for work-related activity (LCWRA) and awarded the LCWRA element. Accordingly, the carer element was removed. The effect of the addition of the LCWRA element, and erosion of the transitional SDP element by the full amount of that, was immediately to erode the transitional SDP element to nil with an overall reduction in the UC (the claimant’s UC went from £975.20 to £879.98). The claimant argued that the erosion decision, removing the whole of the transitional SDP element and leaving her worse off, breached her human rights under Article 14 of the European Convention on Human Rights (prohibition of discrimination) read with Article 1 of Protocol 1 of the Convention (rights to property). On appeal, the First-tier Tribunal agreed that she had been discriminated against because that decision treated her, as a carer entitled to the carer element, differently to someone who was not a carer but who became entitled to the LCWRA element. The tribunal substituted a decision that the transitional SDP element was instead to be eroded only by the difference between the carer element and the LCWRA element.

Judge West, having allowed the Secretary of State’s appeal on the basis of an error caused by a mistake about the facts at the tribunal, nevertheless remade the decision in the claimant’s favour. The tribunal had not erred in holding that the claimant had been treated unlawfully by way of discrimination. It was a ‘stark fact’ that the claimant’s total UC award had decreased despite her needs increasing (which did not happen to other transitionally protected claimants on a change of circumstances which resulted in an increase in their needs). The judge was satisfied that ‘there is no justification for such differential treatment, indeed there is no real explanation for it’ (paragraphs 80–81). The judge made extensive reference to the decision of Judge Church in SSWP v JA [2024] UKUT 52 (AAC). Although in a different factual context (involving the replacement of an award of housing benefit with the housing element of UC), both cases concerned discrimination in regulation 55 and both concerned ‘the cliff-edge erosion at a stroke’ of the claimant’s transitional protection (paragraph 123). In providing a remedy for the discrimination, the tribunal had correctly read the provisions about erosion at regulation 55(2) and (4) of the Universal Credit (Transitional Provisions) Regulations 2014 No.1230, as meaning that only the difference between the carer element and the LCWRA element should be taken into account.

The Secretary of State argued that there had been no discrimination. Rather, the claimant’s real complaint was that when the LCWRA element was included, she lost the carer element. But under regulation 29 of the Transitional Provisions Regulations, a person simply could not be entitled to the LCWRA element and the carer element at the same time. The Secretary of State also argued that, regarding the alleged discrimination, there was no real comparator for how the claimant had been treated. Judge West disagreed with both those arguments. The Secretary of State’s reliance on regulation 29 was not an answer to the claimant’s case ‘that she has been treated differently, and less favourably, than other transitionally protected claimants, none of whom suffer a loss of benefit on a change of circumstances which result in their needs increasing’ (paragraph 84). On comparators, before the Upper Tribunal the claimant argued that the valid comparators were a transitionally protected non-carer who becomes entitled to the LCWRA element, or any other person with a transitional element who then has a change regarding a UC element – for example, where they also already have LCWRA and become a carer). The judge agreed that her proffered comparators were ‘plainly in an analogous situation’ to her. ‘All,’ said the judge, ‘are persons who were recognised as severely disabled through an award of the SDP [severe disability premium] and are persons whom the Secretary of State accepted as a matter of policy ought to be awarded transitional protection to protect them from a cliff-edge’ (paragraph 91).

Comment from CPAG

The outcome is that someone entitled to the carer element who then becomes entitled to the LCWRA element should only have their transitional protection eroded by the difference between the elements. See our article, Erosion – where are we now?

Summary

The appellant’s child was deaf. On application for CDP, Social Security Scotland awarded the care component at the low rate. On appeal to the First-tier Tribunal for Scotland, she argued that it should have been awarded at the middle rate. The tribunal rejected the appeal on the basis that, although the child required attention for a ‘significant portion’ of the day (thus qualifying for the low rate) and also ‘frequently throughout the day’ (as required for the middle rate), the total amount of time involved in providing the attention still did not amount to more than a ‘significant portion’ of the day; also that the concepts of attention for a ‘significant portion’ of the day and ‘frequent attention throughout the day’ were ‘mutually exclusive’, and so only the low rate could apply.

In the Upper Tribunal for Scotland, Lord Fairley allowed the appellant’s further appeal. Judgment as to whether to remit the case to a fresh tribunal or substitute a new decision was withheld, pending a further hearing. The relevant rule was regulation 11 of the Disability Assistance for Children and Young People (Scotland) Regulations 2021, SSI No.174. The tribunal’s written reasons were ‘in places, difficult to understand. They frequently depart from accepted conventions of grammar and syntax’ (paragraph 6). However, they seemed essentially to be that attention provided ‘frequently throughout the day’ (per regulation 11(1)(c)) would not give rise to an award of the middle rate of the care component of CDP if the attention provided on that basis was only for ‘small things’ and (per regulation 11(1)(a)) amounted only to a ‘significant portion of the day’.

That was wrong. Attention that only amounted to a significant portion of the day could still be provided frequently throughout the day and so qualify the claimant for the middle rate. The conditions in regulation 11(1)(a) and (c) were not necessarily mutually exclusive. Lord Fairley held that the tribunal ‘erred in concluding that the conditions in regulations 11(1)(a) and (c) are always mutually exclusive. Whilst there may be cases in which only one or other condition is satisfied, there may also be circumstances where both are met. That would be the case where a child required frequent attention throughout the day in connection with their bodily functions such that the aggregate period of attention amounted to a significant portion of the day’ (paragraph 10). Further, it was ‘difficult to understand’ how the provision of ‘small things’, such as attention, ‘could cumulatively account for a significant proportion of each day unless as a product of frequent attention’ (paragraph 11).

Summary

The claimant made a claim for new-style JSA on 8 August 2022. In the claim, she asked for backdating to 18 May 2022 as at that time she thought she would be starting a new job, but that had not transpired. The decision maker refused to backdate the claim. When requesting mandatory reconsideration, the claimant told the DWP that her mother had died at the beginning of May; however, the DWP refused to change its decision. The First-tier Tribunal dismissed the claimant’s appeal without holding a hearing (ie, on the papers), holding that none of the statutory grounds for backdating applied, specifically that the death of her mother did not constitute a ‘domestic emergency’ under those rules, and that even though her mother had died she could still reasonably have been expected to have claimed earlier than she did.

Judge Butler allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had not adequately explained why it had dealt with the case on the papers. Also, however, the tribunal had erred in the way it interpreted regulation 29 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013 No.380. That provided (via regulation 29(2) and (3)(e)) for backdating of up to three months where the claimant had been required to deal with a ‘domestic emergency’ and as a result ‘could not reasonably have been expected to make the claim earlier’. The tribunal seemed to have believed that because there was a separate backdating ground at regulation 29(5) which referred specifically to where ‘during the month before the claim was made a close relative of the claimant has died’, there could be no three-month backdating under regulation 29(3)(e) for a domestic emergency in the form of the death of the claimant’s mother. As the Secretary of State conceded, the fact that regulation 29(5) contained a separate and specific provision regarding the death of close relative ‘does not...require that regulation 29(3)(e) must be construed as not including the death of a close relative’ (paragraph 14). Judge Butler agreed with that.

The judge held that the specific rule at regulation 29(5) ‘does not prevent the death of a close relative also being considered under regulation 29(3)(e) in terms of whether it constitutes a domestic emergency. The concept of domestic emergency is not defined in the regulations and is to be given its ordinary meaning when considered by a tribunal’ (paragraph 16). The new tribunal would need to consider that and decide whether or not the claimant was entitled to backdating.

Summary

The claimant had ADHD (attention deficit/hyperactivity disorder), and although awarded the high rate of the care component was not awarded the high rate of the mobility component. The First-tier Tribunal held that the claimant was not entitled to the high rate of that component of DLA via the ‘severe mental impairment’ route. That was because the tribunal considered, on the basis of ‘current medical opinion’, that ADHD did not arise (as required by the statutory definition at regulation 12(5) of the Social Security (Disability Living Allowance Regulations) 1991, SI No.2890) from ‘a state of arrested development or incomplete physical development of the brain’).

Judge Wright allowed the claimant’s further appeal and substituted a decision that the claimant was entitled to the high rate of both the mobility and care components. In so deciding, the judge held (with the agreement of the Secretary of State and based on medical evidence provided by the Secretary of State) that in general terms ADHD is caused by arrested development or incomplete physical development of the brain. In the claimant’s case, the Secretary of State submitted in the claimant’s particular case that this was the case, with reference to evidence of the claimant’s ‘intellectual disability’, which was ‘possibly the strongest marker of arrested or incomplete brain development’ (the Secretary of State’s submission, quoted at paragraph 13). Both at time of the decision under appeal and at the time of the First-tier Tribunal’s decision, there was in fact a body of medical opinion to support the finding that ADHD resulted from arrested development or incomplete physical development of the brain, and the tribunal had erred in not explaining the evidential basis for the ‘current’ medical opinion which it considered supported its contrary view. Alternatively, the tribunal had erred in failing to adjourn to obtain expert evidence on this matter. That was indicated by other statements in the tribunal’s reasons referring to an alleged absence of ‘specialist and technical medical evidence’ to support ADHD coming within regulation 12(5) (paragraphs 18–19).

The judge pointed out that satisfying the requirement to have arrested development or incomplete physical development of the brain does not fully satisfy regulation 12(5), which also requires that this state results in ‘severe impairment of intelligence and social functioning’. Further, the severe mental impairment route was set out at section 73(3) of the Social Security Contributions and Benefits Act 1992, and that requires that the claimant must also meet the condition, defined in regulation 12(6), to have ‘severe behavioural problems’. The judge said: ‘While individuals with ADHD may meet these criteria in certain cases, each case will need to be considered on its individual merits; a claim must, of course, be considered on the basis of the facts and the relevant evidence. It is anticipated that cases in which a person with ADHD alone meets the conditions in reg. 12(5) and (6) are likely to be relatively rare’ (paragraph 14). But on the specific facts of the present case, where the claimant also had low IQ, speech and language difficulties, behavioural issues, anxiety, low self-esteem and autism spectrum disorder (ASD) traits, it was accepted that all these additional requirements were also met. (The judge did not need to make further findings regarding the other condition in section 73(3), namely that the claimant was also entitled to the high rate of the care component, as that had already been awarded.)

Comment from CPAG

This decision is authority that, at least in general terms, someone with ADHD has ‘arrested development or incomplete physical development of the brain’ for the purposes of the severe mental impairment route; but it should be noted that the other conditions in that route must also be satisfied. Judge Wright also repeated his approval of the approach to the legal meaning of that wording, set out in NMcM v SSWP (DLA) [2014] UKUT 312 (AAC). However, in this case nothing turned on that decision, which holds that both those phrases refer to ‘the brain’ (ie, not to arrested emotional or functional development) as suggested in SC v SSWP [2010] UKUT 76 (AAC).

Summary

The claimant, having been refused ADP by Social Security Scotland (SSS), appealed to a tribunal – ie, the First-tier Tribunal for Scotland. The claimant was unrepresented and the tribunal determined the appeal on the papers (ie, without a hearing), awarding the claimant both the daily living component and the mobility component. The tribunal stated that it had evidence before it that the claimant had been awarded universal credit (UC) by a tribunal (ie, an HM Courts and Tribunals Service tribunal) in 2023. That decision had held that the claimant had limited capability for work-related activity on the basis of satisfying descriptors (ie, in the work capability assessment or ‘WCA’) regarding inability to get to a specified place without being accompanied by another person and engagement in social contact with someone unfamiliar not being possible for the majority of the time. The tribunal in the present case held that those descriptors had equivalent in ADP and that it could use the UC award to make an award of ADP.

Lady Poole held that the tribunal had erred in law, quashed the decision and remitted the case to a fresh tribunal to reconsider the claimant’s entitlement to ADP. There was no rule stating that entitlement to UC is a passport to entitlement to ADP. Nor was there a rule stating that satisfying certain descriptors in the work capability assessment for UC meant that certain descriptors in the ADP rules were therefore satisfied. UC entitlement was under different rules, and the function of the First-tier Tribunal for Scotland in an ADP appeal was to apply the ADP rules. The judge did agree that evidence from the UC award could be relevant in deciding an ADP appeal: ‘Depending on the nature of the claim for universal credit, the effect on health conditions on aspects of functioning may be in issue in both a claim for ADP and universal credit. The same evidence may be relevant to both claims’ (paragraph 9). But in the present case, the tribunal did not have available to it the evidence that was before the tribunal in the UC appeal, or a full statement of reasons from that tribunal. What the tribunal in the present case did, held Lady Poole, ‘was infer from a decision notice about universal credit that there was entitlement to ADP’ (paragraph 10). That was an error of law. The tribunal commented that it had very little medical evidence before it – ie because Social Security Scotland had not gathered any. But what the tribunal should have done was to have considered using its own powers to obtain further evidence.

Lady Poole offered further observations about what the First-tier Tribunal for Scotland ought to do, as problems of limited evidence were not confined to the present case. In particular, claimants of ADP are not as a matter of course required to undergo medicals. Nevertheless, tribunals must have a proper factual basis for making an award. If the tribunal uses its powers to obtain further evidence, there were at least three potential sources. Firstly, there was the claimant. For example, the claimant in this case could have been requested to obtain copies of his GP records, provide the WCA report or other medical information from his UC appeal, if he still had it, or attend an oral hearing to give his own evidence to the tribunal. The second source was SSS. The SSS Charter included a statement of its function to assist claimants in gathering relevant information, which might have included contacting the DWP to try to recover the appeal papers from the UC appeal. The third potential source was third parties. The tribunal had the power to order any person to produce documents in their control and that could include, for example, government departments such as the DWP or HM Courts and Tribunals Service. The tribunal could also consider a case management stage in advance of a full hearing to consider whether powers to obtain further evidence should be used. But what the tribunal cannot do ‘is make a decision to award ADP which is unsupported by facts properly found on the basis of evidence’ (paragraph 25).

Comment from CPAG

It is surprising that any tribunal should need reminding that ADP and UC are different benefits with different entitlement criteria, and that it has powers to obtain further evidence. However, the judge in the present case does acknowledge that evidence from a UC claimant can be relevant in an ADP appeal. Representatives wishing to point to such evidence should, where possible, ensure that it is in the appeal papers. The judge’s observations that evidence from the claimant at a hearing is also evidence is a reminder that medical evidence is not the only source of evidence.

Summary

The claimant had limited capability for work (LCW) under the ‘substantial risk’ rule, but not limited capability for work-related activity (LCWRA). In rejecting the claimant’s appeal about that, the First-tier Tribunal gave reasons which would seem also to have required that the claimant should not be treated as having LCW either.

Allowing the claimant’s further appeal and remitting the case to a fresh tribunal, Judge Stout held that the tribunal erred by giving inadequate reasons in failing to recognise and address that inconsistency. The tribunal had also failed to weight the evidence properly.

In UC, the substantial risk rule is found at paragraph 4 of Schedule 8 (regarding LCW) and of Schedule 9 (regarding LCWRA) to the Universal Credit Regulations 2013, SI No.376. The tribunal had before it (as required) a list of the least and most demanding work-related activities the claimant could be required to undertake. It concluded regarding LCWRA that the claimant’s mental health problems were minimal and in effect that there was no real risk of substantial risk. But given that one of the most demanding work-related activities was carrying out actual work by attending a work placement, it was an error of law for the tribunal to conclude that the claimant was not entitled to LCWRA for substantial risk when he did have LCW on that basis without explaining its reasons. Further, the tribunal had relied on the official medical report on the basis that it was supposedly the only report that directly considered the question of risk. But Judge Stout agreed with the claimant that that was to overlook the fact that (as is usually the case) the healthcare professional (HCP) who wrote the report was not aware of the list of work-related activities he could be required to carry out. Unless there was evidence to the contrary, ‘the only rational approach’ of a tribunal was to assume that the HCP did not have access to the list of work-related activities. That was potentially an important factor for the tribunal to bear in mind when deciding how much weight to give to the opinion of the HCP (paragraph 16).

Decision in brief

It would follow that in all cases where Activity 9 is at issue, the definition of ‘engage socially’ in Schedule 1 paragraph 1 of the Social Security (Personal Independence Payment) Regulations 2013 should apply, so as to consider a claimant’s ability to interact with others in a contextually and socially appropriate manner, understand body language and establish relationships in a social context

Decision in brief

Partner constantly monitoring blood sugar levels and encouraging claimant to eat – help with food and sugar intake and medication – descriptor 3(b)(ii) (‘Needs supervision, prompting or assistance to be able to manage medication or a health condition’) will not apply if such help was needed for both managing medication and monitoring a health condition – also will not apply if the help was needed for elements of what would ordinarily be regarded as therapy that went beyond either managing medication or monitoring a health condition – in either of these cases, points for help ‘to be able to manage therapy’ under descriptors 3(c)–(f) might apply instead (paragraphs 25–30 and 33) – attention to the nature and timing of the intake of food and drink for people with diabetes is within the ordinary meaning of therapy (paragraph 36)

Decision in brief

Need to use an aid or appliance to put on socks but not shoes is sufficient to score points – but a claimant who is able without help to put on slip-on shoes but not shoes that require fastening does not score points (approach to need to use certain clothing in PE v SSWP [2015] UKUT 309 (AAC); [2016] AACR 10 approved) – a bed is not an aid for purpose of descriptor 6(b) (CW v SSWP [2016] UKUT 197 (AAC) approved)

Decision in brief

Includes half-brothers and half-sisters – R(SB) 22/87, though strictly obiter on this point, was correctly decided

Decision in brief

In such cases it is good practice for the decision notice to state that, given that the points awarded result in the maximum possible award, it was not necessary to consider whether further points are merited