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Decision in brief

Regulation 5(3) of the Immigration (European Economic Area) Regulations 2016 – ‘permanent’ does not mean ‘unchanging’ or ‘lasting for a long time’, but rather that there is not a ‘realistic prospect of a return to work within the foreseeable future’.

Decision in brief

‘Charges in respect of general counselling or of any other support services, whoever provides those services’ as per paragraph 1(f) of Schedule 1 of the Housing Benefit Regulations 2006 – must be applied with a ‘historically-based approach’, so that the deliberate exclusion of such services that previously were eligible because of their connection with the provision of adequate accommodation is adopted.

Decision in brief

Whether primary carer had a ‘secondary’ or ‘contingent’ right to reside based on the right to reside of the child who was the family member of his father (under Article 7(1)(d) of Directive 2004/38/EC) – no such ‘secondary’ right to reside – no principle in EU caselaw which provides that where a child has a right to reside, the primary carer of that child must also have a right to reside in order to render the child’s right effective – such a principle could not be reconciled with the terms and purposes of the Directive.

Decision in brief

Tribunal notice reference to having placed ‘particular reliance’ on the evidence of the appellant was in conflict with the summary of reasons, which showed that in fact the tribunal had rejected that evidence – the phrase ‘particular reliance’ appears in the standard wording of the computer template used by the Social Entitlement Chamber, but is editable and should not be used as general ‘boilerplate’ wording.

Decision in brief

Claimant with cystic fibrosis with associated depression and fatigue – lack of experience, training or inclination to cook is not sufficient regarding Activity 1, but limitation on ability to prepare and cook food caused by fatigue is relevant – prompting to eat enough or eat sufficiently frequently can be relevant for Activity 2 – depression and fatigue can be relevant in relation to Activity 3; also if the nature of the therapy/monitoring of the health condition is itself one which calls for assistance, that can be relevant as arising from the physical or mental condition even without depression or fatigue.

Summary

The claimant had an award, upheld on mandatory reconsideration, of the standard rate of the daily living component of personal independence payment (PIP). Having appealed, the DWP contacted the claimant to say that it considered that his award should be altered to the enhanced rate of the daily living component and the standard rate of the mobility component, but if that were done his appeal would lapse and so his agreement was required (the DWP wrongly omitted to mention that, in that case, the claimant could renew the appeal against the decision as revised). The claimant said that he wanted a hearing of the appeal as he did not believe that full account had been taken of his condition. The DWP considered that the claimant did not agree to a revised decision being made and so did not revise the decision. The First-tier Tribunal approached the appeal as a straightforward appeal against the decision, awarding only the standard rate of the daily living component. It decided that he was entitled to the enhanced rate of that component, but not to any rate of the mobility component – ie, a less favourable decision than the one the Secretary of State believed was correct.

Judge Wright allowed the claimant’s further appeal and substituted as decision that the claimant was entitled to the enhanced rate of the daily living component and the standard rate of the mobility component – ie, as per the Secretary of State’s view. The tribunal had erred in not regarding the Secretary of State’s clearly communicated and upheld view of the correct award as its starting point for consideration, and in not giving a warning to the claimant that it was minded to make a decision that was less favourable to him than that.

The Secretary of State’s submission to the tribunal clearly showed that she no longer considered the decision under appeal to be correct, and (held Judge Wright) ‘in effect the dispute between the parties on the appeal now had as its starting point’ the decision that the Secretary of State thought was correct, even though for policy reasons associated with seeking the prior agreement of the claimant, no revision to that effect had been made (paragraph 23). The tribunal did not satisfy itself that the claimant did not ‘agree’ with the Secretary of State’s proposed revision, and (perhaps because it used the language of an ‘offer’ made by the Secretary of State) did not ‘really grapple’ with the consequences of the Secretary of State’s view – ie, that the decision under appeal was not correct (paragraphs 26– 27). It was clear to the tribunal that the claimant’s dispute was really about his entitlement to the enhanced rate of the mobility component. Once that ‘correct starting point’ was identified, the tribunal was required ‘as a matter of law and considerations of fairness underpinning that law to put the appellant on notice if an issue was, or became, clearly apparent from the evidence about the appellant’s entitlement to the standard rate of the mobility component or his entitlement to the daily living component’. Given that the claimant had autism and was unrepresented, fairness here may have required an adjournment. Certainly, the failure to provide an adequate warning of a less favourable decision was an error of law (paragraph 47).

Comment from CPAG

This decision is clear authority that in any case involving a proposed ‘offer’ to revise by the Secretary of State that is not taken up, the tribunal should ordinarily take the terms of that offer as the starting point of the appeal. The judge did not accept that the lawfulness (or otherwise) of the Secretary of State’s policy of not revising had a direct bearing on the case before him – ie, because he was concerned with error by the tribunal. That policy was the subject of a judicial review challenge before the High Court in R (K) v SSWP.

Decision in brief

Claimant turned up late but tribunal had already heard the case and decided in her absence – whether tribunal should have telephoned the appellant to ask why she was not present – PS v SSWP (ESA) [2017] UKUT 55 (AAC) correctly held that there was no requirement in law to telephone – but in present case, the appellant had a previous history of attending, the tribunal had her mobile phone number and the appeal was listed for a full day with presenting officers present, concerning overpayments of over £20,000 – on the facts tribunal were under a duty to attempt to contact claimant before proceeding in her absence.

Decision in brief

Young child with developmental delay and hypermobility – needed attention with his communication skills when parents were trying to settle him back to sleep, as much more difficult to understand what was troubling the child – tribunal wrongly focused on the bodily function of sleeping (rather than with communication) and in requiring that attention in soothing a child back to sleep had to be ‘caused’ by a disability, rather than (as per CSDLA/567/2005) ‘linked’ to a disability.

Summary

The claimant became entitled to contributory ESA (but not income-related ESA) in 2011. Following a year in the work-related activity group, entitlement to that expired after a year, although it was accepted that the claimant still had limited capability for work. In 2014, following being asked to complete an ESA3 form, the claimant began to receive income-related ESA. Subsequently, he began to be paid an occupational pension (including arrears going back to 2011) and his wife did some paid work. In 2017, the DWP realised that none of that income had been taken into account and (after subjecting the claimant to a fraud interview) held that it created an overpayment of income-related ESA which he had to repay. The First-tier Tribunal held, in substance, that none of the overpayment was recoverable as the claimant had not failed to disclose the pension or his wife’s earnings.

Judge Mitchell held that the tribunal had not erred in law in holding that the overpayment was not recoverable from the claimant, with the exception of the arrears of the occupational pension, which was recoverable under section 74 of the Social Security Administration Act 1992. On the ‘principal issue’ of whether the overpayment had been caused by the claimant’s failure to disclose the income, the judge accepted the claimant’s evidence that he had telephoned the DWP to report the pension when it commenced in 2014, and had similarly done so regarding the earnings from his wife’s employment (paragraph 53). Consequently, the overpayment resulting from the DWP’s failure to adjust the income-related ESA entitlement had not been caused by the claimant’s failure to disclose and so (apart from the arrears of pension) was not recoverable from him. The tribunal had erred in not requiring the DWP to explain the various codes in screenprint evidence given to the tribunal, or to produce the ESA3 form completed by the claimant, and in not considering whether to adjourn to require the Department to fill in numerous gaps in the documentary evidence presented (EN v SSWP [2015] UKUT 670 (AAC)).

In so holding, the judge rejected the argument of the Secretary of State that the claimant had made a new claim for income-related ESA in 2014. The ESA3 form, on the evidence of the DWP, could be used for a new claim or for awarding income-related ESA in cases where there was a decision awarding contributory ESA that had not been formally terminated. In order to terminate an award of ESA where entitlement to the contributory form has expired, there must be a separate and formal decision doing so, made on revision or supersession (MC v SSWP [2014] AACR 35). That had not been done in this case. Further, where a decision awarding contributory ESA was still extant, that could be changed on revision or supersession so as to award income-related ESA without the need for a new claim (LH v SSWP [2015] AACR 14).

Comment from CPAG

This decision is a useful restatement of the principle that entitlement to ESA (as with any other benefit) can only be terminated on a formal revision or supersession, and that where contributory ESA has not been formally terminated, income-related ESA may be awarded without the need for a new claim. So it is relevant in confirming that an ‘old-style’ contributory ESA award can be altered so as to award income-related ESA.

Decision in brief

Protective essays have no place in any statement of reasons – do not always automatically result in a material error of law, but statements containing such essays are ‘often so manifestly inadequate that the underlying decision is doomed’ from the moment it is challenged – protective essays are an invitation to appellate judges to scrutinise the statement in greater depth.

Decision in brief

Not necessary for a tenant with a leasehold interest in only part of the dwelling (25 per cent, 50 per cent, 75 per cent or otherwise) to be obliged to pay rent on the remainder in order to count as a shared ownership tenancy (claimant was obliged to pay service charges) – gloss put on the meaning of shared ownership tenancy in Blackburn with Darwen Borough Council v DA (HB) [2014] UKUT 431, to effect that it is required that the tenant must be obliged to pay rent, was not correct.

Summary

This judicial review decision of the Outer House of the Scottish Court of Session holds that it is still possible for claimants awarded refugee status to take advantage of rules allowing tax credit claims to be backdated to the date of their claim for asylum – ie, where that was made before the introduction of universal credit (UC) in their area and, in any case, before the abolition of new claims for tax credits from 1 February 2019.

The claimants claimed asylum in the UK in 2013 but were not granted refugee status until December 2019. They claimed UC, but in January 2020 also submitted a claim for tax credits backdated to the date of their asylum claim in 2013. They relied on the rule treating a tax credits claim as made on the date of the asylum claim (where relevant time limits have been observed) at regulation 3(6) of the Tax Credits (Immigration) Regulations 2003, No.653. HM Revenue and Customs (HMRC) refused to accept that claim, on the basis that it was not possible to make a claim for tax credits (even in these circumstances), following the abolition of new claims for tax credits in cases where it was possible to claim UC, as provided for by Article 7 of the Welfare Reform Act 2012 (Commencement No.23 and Transitional and Transitory Provisions) Order 2015, SI No.634 (‘the No.23 Order’). The claimants applied for judicial review of that refusal.

Lord Tyre held that the claimants’ request for judicial review should be granted. The key provision at issue was Article 7 of the No.23 Order. In particular did it, as HMRC contended, prevent not only new claims for tax credits where UC could be claimed but also historical claims (ie, those backdated, as here, to a period before UC was introduced). The judge thought not. Article 7 did not expressly exclude a backdated claim as provided for by regulation 3(6) of the Tax Credits (Immigration) Regulations. That treated the tax credit claim as having been made on the date of claim for asylum, and there was ‘no reason’ to regard that as overridden by Article 7 (paragraph 19). It was significant, held the judge, that Article 7 did not expressly exclude a claim under regulation 3(6).

Comment from CPAG

The main findings have been applied on judicial review in the English and Welsh context in DK v HM Revenue and Customs and Secretary of State for Work and Pensions [2021] EWHC 1845 (Admin) (5 July 2021). In that case, the claimant’s eventually successful asylum claim was made on 5 April 2016, before his area became a UC full service area. He received notification of his refugee status on 3 January 2020 and claimed tax credits on 28 January 2020. Mr Justice Bourne accepted (notwithstanding a few doubts) that his tax credits claim could be backdated under regulation 3(6) of the Tax Credits (Immigration) Regulations, and that this was not prevented by the subsequent prevention of new claims by Article 7 of the No.23 Order. That was on the same statutory construction grounds as in Adnan and Adnan. The judge rejected alternative arguments put by the claimant, that prevention of the tax credits claim by Article 7 would have constituted a breach of his human rights, and that the introduction of Article 7 was in breach of the public sector equality duty.

It should be noted, however, that HMRC is appealing against both decisions (in the case of Adnan and Adnan to the Inner House of the Court of Session, and in the case of DK to the Court of Appeal).