CPAG search

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.

Summary

The claimant was entitled to disability living allowance (DLA). But in November 2018 the DWP decided to supersede the award on the basis that following a change in circumstances the claimant was no longer entitled from 5 November 2014 and that an overpayment had occurred which was recoverable from him. (Although the decision lacks detailed facts about the change, it is clear enough that they related to an alleged improvement in his condition.) The claimant’s appeal was dismissed by the First-tier Tribunal. 

Judge Hocking allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred in failing to consider regulation 7(2)(c)(ii) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, SI No.991. That provided an exception to the general rule that the effective date of a supersession for a change in circumstance is the date on which it is made. Under this exception, where (as here) the decision is not advantageous to the claimant and is a disability or incapacity benefit decision, the effective date is earlier where the claimant failed to notify a change in circumstance which regulations required him to notify and he knew or could reasonably have been expected to know that the change should have been notified. For the overpayment to have been raised in this case, it was required that the effective date was established under regulation 7(2)(c)(ii). 

The new tribunal would have to consider that. The judge explicitly agreed with (as had Judge Ward in granting permission to appeal) the decision of Judge Poyner in SM v SSWP [2021] UKUT 119 (AAC). There, Judge Poynter had said that the rule was intended to provide a safeguard for claimants and had to be considered by tribunals, as questions about whether a claimant’s condition had improved often involved opinion rather than primary fact. Judge Hocking agreed with the finding in SM that it was not enough for the claimant reasonably to be expected to know that notification might be ‘desirable or prudent’; rather, ‘they must know (or reasonably be expected to know) that they have no choice but proactively to notify’ (paragraph 13). However, that did not also mean that SM established that the claimant must know or reasonably be expected to know that it was a legal requirement to notify; ‘all that is required is that they know (or should [sic] reasonably be expected know) that they were under a requirement to notify, not the nature or origin of that requirement’ (paragraph 15). 

Comment from CPAG

This decision applies SM with a caveat, so that although the claimant must indeed know or reasonably be expected to know that they are under an obligation, it is not required that they must have been told that is a legal obligation or have had specific rules about that cited to them. Tribunals will still need to address what the claimant knew or could be expected to have known about their obligations.

Summary

The claimant applied for and was refused personal independence payment (PIP) on three separate occasions in 2017, 2018 and 2020. The claimant did not challenge the refusals. The refusal of the 2017 claim (but not the other two) was in 2021 the subject of a ‘LEAP’ (Legal Entitlement and Administrative Practices) review by the Secretary of State. That was because the 2017 decision (unlike the 2018 and 2020 decisions) had been taken before the issue of new official guidance regarding some relevant PIP test cases (MH v SSWP (PIP) [2016] UKUT 531 (AAC), reported as [2018] AACR 12; and RJ, GMcL and CS v SSWP (PIP) [2017] UKUT 105 (AAC), reported as [2017] AACR 32). The claimant was invited to request a mandatory reconsideration of her ‘PIP claim(s)’. That resulted in a mandatory reconsideration of the 2017 refusal, dated 25 June 2021, which reconsidered the decision but again declined to award any PIP. The claimant appealed, and the First-tier Tribunal awarded the claimant the standard rate of the mobility component, from the start date of the 2017 claim, for an unlimited period. In its written reasons, the tribunal explained that was because the claimant’s condition was unlikely to change.

Judge Wikeley allowed the Secretary of State’s further appeal, and substituted a decision that the award of the mobility component made by the tribunal ran only until the date of the claimant’s second claim for PIP made in 2018. The tribunal had erred by failing to specify an end date of the award in circumstances where the claimant had, in 2018, made a second and unsuccessful application for PIP. Decisions were (subject to revision, supersession, appeal or judicial review) final, with the effect that there were not to be two decisions in respect of the same benefit for the same person for the same period. A line of authority from the Upper Tribunal had adopted that principle with the effect that a tribunal cannot make an open ended award where there has been a later decision on a later claim for the same benefit. Representatives for the claimant accepted that, if this was ‘straightforward’ case, the period under consideration would have been limited by the date of the subsequent 2018 claim (paragraph 23). 

However, it was argued for the claimant that, in the circumstances, she should be regarded as having made a valid appeal against all three refusals of PIP, having made (in 2021) timely mandatory reconsideration requests regarding all three. Under regulation 9 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013, SI No.381 (the ‘Decisions and Appeals Regulations’), a decision can be revised at any time where it arose from ‘official error’. It was argued that all three decisions arose from official error and so were capable of revision at any time. Judge Wikeley rejected that. It was the case that (as submitted by the Secretary of State), the claimant had in 2021 made a valid any time revision request of the 2017 decision. The LEAP review was on the basis that that decision arose from official error, as it was taken before the issue of the official guidance in 2018, with DWP staff at that time – as Judge Wikeley put it – ‘labouring under a misapprehension as to the true position under PIP law’. But that context meant that, under the LEAP review, only the 2017 decision fell to be reconsidered (the later decisions were made after the publication of the guidance). Aside from that, applying the decision in PH and SM v SSWP (DLA)(JSA) [2018] UKUT 404 (AAC), reported as [2019] AACR 14, the judge thought there was some force in the Secretary of State’s argument that the claimant’s 2021 mandatory reconsideration request, ‘cannot be said to raise any issue of official error, whether explicitly or implicitly’ in the 2018 and 2020 refusals (paragraph 51). 

In the alternative, it was argued for the claimant that the time limit for revisions of the 2018 and 2020 decisions on any grounds had in fact not started to run at all, as the notifications of the PIP refusals had only given the basic one-month time limit for applying, and had not mentioned the possibility of a late application – ie, within the absolute time limit of 13 months. The 2021 request for mandatory reconsideration, therefore, included such requests regarding those decisions. Rejecting that, the judge held that the requirement in regulation 7 of the Decisions and Appeals Regulations to state the time limit for a mandatory reconsideration merely required statement of the basic time limit itself, and not the possibility of extending that time limit, which is what the absolute time limit was. The claimant’s arguments did not ‘address the conceptual distinction between a time limit and an extension to a time limit’ (paragraph 70). There was nothing in the claimant’s attempt to argue that the Secretary of State’s approach was to breach the right to a fair trial in Article 6 of the European Convention on Human Rights, as that applied to appeals but not to ‘the Secretary of State’s decision making processes’, and in any event, on the facts of the present case, the claimant could not be said to have been denied access to a relevant tribunal ‘in any meaningful sense’ (paragraphs 78 and 79). 

Comment from CPAG

As Judge Wikeley says, this case illustrates the additional complexity involved in LEAP processes. It also illustrates, regarding appeal rights, the difficulties that may arise for claimants once the time limit for an ‘any grounds’ revision has passed. It holds that decision notices do not need to have stated the possibility of a late request for such a revision, and (regarding any time revisions for official error) endorses the finding in PH that requests must at least implicitly raise the issue of official error. CPAG represented the claimant and has been granted permission to appeal to the Court of Appeal.

Summary

The claimant had anxiety, depression and borderline personality disorder and had both medication and counselling regarding those. She appealed against a decision that she was not entitled to personal independence payment (PIP). The First-tier Tribunal refused the claimant’s appeal and said at various points in its written reasons that the evidence given by the claimant at the hearing, in the form of responses to questions put to her by the tribunal, was ‘vague’. 

Judge Scolding KC allowed the claimant’s further appeal and remitted the case to a fresh tribunal. Judge Scolding agreed with the Secretary of State that the tribunal had used ‘closed’ questions to the claimant, requiring ‘yes’ or ‘no’ answers, and had not followed these up to explore or clarify the claimant’s answers. In the circumstances, the tribunal had ‘made material errors of law’ in the way it questioned the claimant, ‘with such amounting to procedural unfairness’ (paragraph 25). The context was the ‘vitally important’ requirement at rule 2 of Tribunal Procedure (First-Tier Tribunal) (Social Entitlement Chambers) Rules 2008 for tribunals to be ‘flexible’ and to ensure that parties to an appeal are able to ‘participate fully’ in the proceedings (paragraph 9). In addition, having listened to the audio recording of the hearing, the judge agreed that in fact the tribunal had wrongly characterised the claimant’s answers as ‘vague’ when in fact they were clear.

The circumstances of this case included the claimant’s anxiety and reported dyslexia, meaning that she often had difficulty in explaining things and answering questions. There was relevant evidence in the papers about such problems, including from healthcare professionals as well as the claimant and her mother. Judge Scolding considered that this suggested that the claimant would have greater difficulties in answering questions, and that the tribunal should have given consideration to how she could be best facilitated to give such evidence, as set out in e President’s Practice Direction on Child, Vulnerable Adult and Sensitive Witnesses, paragraph 6, issued on 30 October 2008. In RT v SSWP (PIP) [2019] UKUT 207 (AAC), Judge Poynter had observed that the definition of a ‘vulnerable’ witness was likely in fact to cover nearly all appellants in health and disability appeals, and that all benefit tribunals were supposed to act in an inquisitorial, enabling manner anyway; so the test of whether a theoretical failure to follow the Practice Direction was whether the failure was actually a material error on the facts of the individual case. In the present case, Judge Scolding considered that there was no indication that the tribunal had considered the Practice Direction on the facts, ‘despite there being considerable evidence from the papers that this may need to be considered’ (paragraph 19). That failure was therefore a material error in this case, amounting to procedural unfairness. 

Comment from CPAG

All tribunals, whatever the individual facts, are supposed to act fairly and justly, including by giving claimants a chance to participate fully, and are supposed to act inquisitorially to get at the truth. Given that, it is very arguable that any tribunal that uses ‘closed’ questions demanding ‘yes’ or ‘no’ answers that it then fails to explore or clarify, will have erred in law, irrespective of the further requirements in the Practice Direction. That said, in the present case the claimant’s well-documented difficulties in giving oral evidence clearly did require the Direction to be considered. Arguably therefore, the tribunal’s (additional) failure to do that may, in the context of showing an error of law, be considered as the cherry on the cake

Summary

The claimant made his claim for UC on 29 March 2020. On 23 April 2020, he requested that his claim be ‘backdated’ to 24 March, on the basis that he had been self-isolating and it to obtain an isolation sick note from his GP, and that the overloading of the online system during the first days of the first coronavirus lockdown meant that the ‘official computer system’ was rendered ‘inoperative’ for the purposes of backdating under regulation 26(3)(d) of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013. The First-tier Tribunal dismissed the appeal. 

Judge Church dismissed the claimant’s further appeal. Neither of the claimant’s arguments satisfied the relevant tests in regulation 26. His argument regarding the isolation sick note was under subparagraph (3)(c) – ie, that he had ‘supplied the Secretary of State with medical evidence that satisfies the Secretary of State that the claimant had an illness that prevented the claimant from making a claim’. The tribunal had found that the coronavirus symptoms that the claimant was experiencing were not such as to have prevented him from making a claim. Judge Church held that the tribunal had ‘a wide ambit of discretion’ in making that finding, and given the ‘mild symptoms’ reported by the claimant, it was entitled to find that they would not have prevented the claimant from telephoning or using the online system for claiming earlier than he did (paragraph 14). 

Regarding subparagraph (3)(d) and the allegedly ‘inoperative’ official computer system, the claimant had pointed to descriptions in the media of the UC system being (among other things) ‘overwhelmed’ and ‘crashed’. The Secretary of State had accepted before the tribunal that the telephone lines were very busy at the relevant time, but submitted that there was no outage of the website. Judge Church held that the question of whether the computer system was ‘inoperative’ was a question of fact. The tribunal had made clear what the Secretary of State had accepted and that was sufficient to provide adequate reasons for its decision. The tribunal’s findings of fact that although traffic on the website had been very high and that it sometimes took several hours to complete a claim, it had nevertheless been possible to make a claim for UC at the relevant time, were open to it on the evidence. More widely, said Judge Church: ‘There may well be circumstances in which the level of traffic on a website is such as to render it “inoperative”, but I do not consider it appropriate to set down any hard and fast rules as to what number of users in a queue, or how many hours’ wait, would tip the balance from a system being properly characterised as “operative but very busy” to “inoperative”. That is a matter of judgement for the tribunal of fact when considering all the circumstances’ (paragraph 23).

Comment from CPAG

The finding that it would be wrong to specify ‘hard and fast rules’ about when the system should be regarded as inoperative is unexceptionable; but it is arguably somewhat harsh to allow that a system in which it could take several hours to make an online claim could reasonably be described as operative. It remains open to other tribunals to find otherwise.

Summary

This case concerned entitlement to the care component of disability living allowance (DLA), where the claimant and her mother (both British nationals) were resident in the UK, but her father was working as a self-employed person in Belgium. In the Upper Tribunal decision in this case (AH v SSWP [2020] UKUT 53 (AAC)), Judge Jacobs had held that Belgium was the competent state for payment of sickness benefits (such as the care component of DLA), and therefore the claimant was not entitled to DLA, as the relevant European co-ordination rule provided that the state in which the family member was working was the competent state. 

The Court of Appeal unanimously allowed the claimant’s further appeal. The competent state was the state in which the claimant (and her mother) was resident, and that was not altered by the fact that her father was working in another member state. The relevant European rules were in Regulation (EC) No.883/2004. Article 11 provided that there could be only one competent state. Initially at least, Article 11(2)(e) provided that the UK was the competent state for the claimant, as the state of residence. Giving the lead decision, Lord Justice Lewis held that, firstly: ‘…the appellant falls within Article 11(3)(e) and she is subject to the legislation of the member state of residence, that is the United Kingdom. The appellant is, therefore, an insured person as she satisfies the conditions required under the legislation of the competent member state (the United Kingdom) to have the right to benefits’ (paragraph 41). 

The next question was whether there was any rule of priority by which the claimant fell instead to be subject to the legislation of another member state. In the Upper Tribunal, it had been held that there was – at Article 21 – and that, as a result, Belgium was the competent member state. But that was incorrect: ‘The wording and purpose of Article 21 do not suggest that that article was intended as a rule of priority which displaces the legislation that would otherwise be applicable applying Article 11 of the Regulation. Article 21 is not expressed as a rule of priority unlike other articles of the Regulation such as, for example, Article 32. Rather, Article 21 is intended to prevent an insured person, and his or her family members, from being denied cash benefits because they are resident in a state “other than the competent state”. Thus, for example, if an insured person is employed in one member state, so that is the competent state, that person and his or family members will be entitled to sickness benefits under the legislation of that state. They do not lose their entitlement under the legislation of that state because the insured person, or the family members, are resident in a different state. The competent state remains responsible for providing the cash benefits payable in accordance with its legislation’ (paragraph 44). The history of the relevant provisions also indicated that: ‘... it is the legislation of the state of residence that has priority in cases involving payment of cash sickness benefits such as the care component of disability living allowance’ (paragraph 45). Further, ‘... there is nothing to indicate that the European Union legislature was intending to effect a significant shift so that a family member would no longer be entitled to receive cash benefits in the state where he or she resided (as was formerly the case) but instead would receive cash benefits from the state where the parent worked or was self-employed’ (paragraph 49). Therefore, the claimant was entitled in her own right to the care component of DLA, and the UK (as the state of residence) was the competent state, with no priority arising from any rights derived from her father in the state in which he was self-employed.

Summary

The claimant was entitled to ‘old-style’ contributory ESA. Following conviction,  he was in prison between 3 January 2020  and 21 December 2020. He was disqualified from receiving payment while in prison,  but no decision was taken to terminate his entitlement during that time (termination  had been possible, based on being treated  as not having limited capability after being disqualified for more than six weeks). On his release from prison, the claimant applied for payment of his ESA to be reinstated. Instead,  it was decided in a supersession decision  that he had lost entitlement to his ESA while  in prison (ie, after more than six weeks of disqualification), so would now have to make a new claim – ie, a claim for ‘new-style’ ESA under the UC system. His appeal was upheld by the First-tier Tribunal, who held that he had not been disqualified from ESA while in prison and so payment could resume on release. 

Judge Rowland held that, on a supersession for change of circumstance the claimant had indeed lost entitlement to contributory ESA while in prison, but also that the Secretary of State must also (ie, without a new claim) decide the claimant’s entitlement to ESA from 22 December 2020. It was an error for the Secretary of State not to have done that when carrying out the supersession. Although the tribunal had erred in its reasons as to why the ESA had not terminated while in prison (it wrongly held that imprisonment was not a ‘penalty’ for the purposes of disqualification and therefore subsequent loss of entitlement), it was nevertheless the case that his entitlement had not been brought to an end by the Secretary of State during that time, and so at the time of the supersession he still had a current award, and simply could not make a ‘new’ claim. Further, the supersession had to consider his entitlement not only during the past period in prison but also his entitlement subsequent to his release – ie, down to the date of the supersession decision itself. The claimant might still be entitled to old-style ESA at the date of the supersession decision (although that was probably no longer the contributory form, as his period of limited capability for work had been broken while in prison and so the relevant contribution years had changed. But it was possible he was entitled to the income-related form).  

The key was that the claimant had an extant award of contributory ESA at the time of the supersession decision – ie, because (for some reason) the Secretary of State had not brought entitlement to an end in prison after the claimant had been disqualified for six weeks. Because of that, it was simply not possible  for the claimant to make a new claim. Judge Rowland said: ‘A decision that the award should be superseded because the claimant had not been entitled to contributory employment and support allowance during a period that had ended before the supersession decision was made cannot justify a decision that he had no entitlement during a later period or at the date of the decision merely because he had not made a new claim. A person who has a current award of a benefit cannot be expected to, and is neither obliged nor entitled to, make a new claim for the same benefit, even if payments have been suspended.  A supersession decision must therefore determine entitlement up to the date of the decision itself without a new claim having  been made’ (paragraph 27).

Comment from CPAG

Although the term is not used in  the decision, this is an example of a circumstance in which a so-called ‘closed period supersession’ should be carried out – ie, a supersession which can encompass a loss of entitlement for a limited past period, where entitlement has not actually been brought to an end, and has arisen again (or  at least may have arisen again) by the date of the supersession.