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Summary

In these joined cases (concerning claimants with epilepsy and deafness), a three-judge panel of the Upper Tribunal considered the meaning of the test of whether a claimant can carry out an activity 'safely'. The judges disapproved previous case/aw to the effect that the test was of whether harm was 'more likely than not', and held that rather the test should be whether there was a 'real possibility' of harm, having regard to the nature and gravity of the feared harm.

The claimants were all appealing against First-tier Tribunals who, in refusing to award points for needing supervision, had referred to the infrequency or remoteness of the risk occurring and referred to the need for the descriptor to be satisfied most of the time. Before the Upper Tribunal, previous caselaw authority supporting that approach to the meaning of ability to carry out an activity 'safely' (by Judge Hemingway in CE v SSWP (PIP) [2015] UKUT 643 and by Judge West in CPlP/3006/2015) was cited by the Secretary of State. The three-judge panel also had reference to the decision of Judge Bano in SB v SSWP [2016] UKUT 219 (AAC), which also supported that approach, but held that where supervision was at issue, a separate approach must be taken which had regard to the possible seriousness of the risk.

Lady Carmichael and Upper Tribunal Judges Knowles QC and Markus QC allowed the claimants' appeals and held that the previous caselaw authority had taken the wrong approach to the meaning of 'safely'. That a claimant is only assessed as being able to carry out an activity ifs/he can do so 'safely' is provided for by regulation 4(2A)(a) of the Personal Independence Payment Regulations 2013, No.377. Judge Bano had been wrong in SB to posit a distinct approach to descriptors concerning supervision - regulation 4 applied to the assessment of each and every descriptor including those concerning supervision (paragraphs 26-28). Judges Hemingway and West had been wrong to hold that the approach to the meaning of 'safely' in regulation 4 was only about the likelihood of an event occurring and not the nature of the risk or harm. Considering the legislation as a whole, and with reference to House of Lords authority in the context of protecting people against future harm in other contexts, considering whether an activity can be carried out 'safely' required consideration of whether 'there is a real possibility that cannot be ignored of harm occurring, having regard to the nature and gravity of the feared harm in the particular case'. It followed that 'both the likelihood of the harm occurring and the severity of the consequences are relevant' (paragraph 56).

Summary

The claimant had had corrective surgery on his left eye in the form of a retinal implant. His appeal to the Upper Tribunal centred on the argument that the implant was an 'aid or appliance' for PIP Activity 8 (reading and understanding) and that therefore he fell to score points in that activity.

Judge Gray rejected the claimant's appeal, holding that the First-tier Tribunal had not erred in refusing to score the claimant points under Activity 8. Straightforwardly, that was because the tribunal correctly held that, in any case, the claimant was able to read within the terms of Activity 8 with his right eye alone. Consequently, the 'baseline' descriptor of 0 points applied (paragraphs 24-26). Formally, that left the question of whether the implant in the claimant's left eye was an 'aid or appliance' an unnecessary one for the judge to answer. However she decided to make some obiter (ie, non-binding) comments.

The argument that a retinal implant is a device which improves or replaces a physical function and is therefore an aid or appliance was 'in straightforward language terms, unimpeachable' (paragraph 42). But this could lead to absurdity. If, for example, an artificial heart valve or stent counted as an aid or appliance, multiple points could apply for 'using' it in a variety of activities included preparing food, bathing and dressing, where the claimant had no 'actual problem' with any of those things. Such absurdity could not have been the intended outcome of the PIP scheme. Internal implants were therefore not of themselves 'aid or appliances' for PIP. This was in contrast to a 'prosthesis' which was specifically included in the definition of an aid or appliance, and in common sense terms clearly related to impaired function (paragraphs 42-47). However, the judge explicitly exempted cochlear implants from her observations. ln the present case, there was a collective lack of knowledge about the way in which they operated, whether they could be removed, etc, and were not included even in the judges obiter comments (paragraph 49).

Comment from CPAG

This is an early, if not the first, decision about implants and PIP in what may well become a long line of authority on the subject. Others are very likely to arise, in the general context because the judge's observations are obiter, and in the specific context of cochlear implants because of their clear exclusion from this decision.

Summary

The joined cases in this decision concerned claimants whose main argument was that they should be treated as having limited capability for work-related activity (and therefore put in the support group) under the 'substantial risk' rule at regulation 35(2) of the Employment and Support Allowance Regulations 2008, No.397. On the facts of the cases, what was specifically in issue was the evidence that should be considered about the assessment of risk where the claimant's work-related activity would be applied via the 'Jobcentre Plus Offer' rather than an external provider.

Judge Wright began with the central importance of the decision of the three-judge panel in IM v SSWP [2014] UKUT 412 (AAC); [2015] AACR 10. That was authority on what information should be provided to a First-tier Tribunal by the Secretary of State where the assessment of risk under regulation 35(2) was in issue. This is a list of work-related activity available in the geographical area relevant to the claimant, identification of the least and most demanding types of activity, and what types of activity the particular claimant may be required to undertake (paras 3, 24-29). IM was binding in the present cases. Official guidance (Memo DMG 17/15) was largely accurate in summarising the requirements in IM, although was wrong to say that where the claimant had also been found not to have limited capability for work, there was no need to identify the most and least demanding types of work- related activity (paragraphs 84-90).

In the present cases, it emerged that the claimants' work-related activity fell to be applied via the 'Jobcentre Plus Offer' - ie, through interviews with work coaches in jobcentres and 'flexible' interventions and support- rather than via an external provider. The DWP provided evidence that the Jobcentre Plus Offer applied in cases where the claimant has limited capability for work and was not due to be reassessed for more than 12 months, or in any case where the claimant was awarded contributory ESA (paragraphs 48 and 93). It was not disputed that in both cases the tribunal erred in failing to have any adequate or relevant evidence before it about work-related activity under the Jobcentre Plus Offer (paragraph 66). Judge Wright held that any list of work-related activity (under the Jobcentre Plus Offer or not) had to specifically identify the most and least demanding work-related activity in the claimant's area and then, as a second stage, identify the range of work-related activities from the list the individual claimant was capable of performing and might have reasonably been expected to undertake (paragraphs 106-112). The judge seemed to accept official guidance that the list provided in Jobcentre Plus Offer cases could not, for practical reasons, be a complete list, and could consist of examples of the m.ost and least demanding types of work-related activity, before identifying the specific types of work- related activity the claimant could undertake without risk (paragraph 94).

Comment from CPAG

The judge made extensive reference to the difficulty of getting precise information about the Jobcentre Plus Offer from the DWP. Historically, that had at times 'bordered on the farcical', and the overall impression was that it had had to be 'dragged out of the DWP'. lt is to be hoped the situation will improve: tribunals that proceed without it run a high risk of error.

Summary

The claimants in these joined cases were both European Union nationals and self-employed when they became pregnant. Both continued work for a while but eventually-'took maternity leave', returning to some economic activity after childbirth. They were both refused child benefit on right to reside grounds, HMRC' deciding that, in both cases, the claimants had ceased self-employment during maternity and so were not workers by the time of their claim. HMRC did not consider that the decision of the Court of Justice of the European Union (CJEU) in Saint-Prix Case C-507/12, could apply in these self-employment cases. The First-tier Tribunal allowed both appeals on the basis that the claimants had remained self-employed but could in any case rely on Saint-Prix.

Judge Ward allowed both further appeals by HMRC, on the basis that in both cases the fact finding by the tribunal was inadequate to conclude that the claimants had remained self-employed throughout (paragraph 12). In GP, however, the judge made further findings on the evidence before him and concluded that the claimant had indeed remained self- employed at the time of her claim (paragraphs 27-32). The claimant had been in 'genuine and effective' work before maternity, then took steps to maintain it while not actually working, and anticipated returning to work (paragraph 30). For that reason, the possible application of Saint-Prix to her case was hypothetical only and the judge declined to consider it.

In HD, the judge held that on the facts of the case that the claimant had ceased to be a worker during her maternity. In her there had been some measure of self-employment throughout, but a combination of the pregnancy and the effects of a house move meant that, for the judge, the work ceased to be 'genuine and effective' and never regained its earlier status (paragraphs 20-22). That therefore led to the question of the possible application of the decision in Saint-Prix. However, the judge did not make a substantive finding. There has been a reference to the CJEU from the Court of Appeal (Ireland) in Florea Gusa v Minister for Social Protection, Attorney General, Case C-442/16. That involves a possible reconsideration of whether a self-employed person could retain worker status while registered as a jobseeker. The judge considered that of sufficient relevance, therefore, to make only an interim decision in this case and to direct further submissions on whether a final decision should be stayed pending the outcome in Florea Gusa.

Decision in brief

But although a claimant has no right to assume that the same decision on entitlement will be made, on appeal any apparent difference from the previous award ought to be explained by the tribunal – depending on the facts, it may be reasonably obvious from the tribunal’s findings – but for that ‘the reasoning must be such as to be able to carry the clear implication that the First-tier Tribunal either found a change of circumstances or disagreed with the previous decision’

Decision in brief

On the facts, it was reasonable to expect claimant to attend a medical in his home town of Derby, but not to attend a medical further afield (eg, in Nottingham) – claimant therefore had good cause for failing to attend a medical in Nottingham – decision that a claimant has failed to show good cause for non-attendance has serious consequences and ‘tribunals should therefore examine the Department’s evidence and arguments with some care and, where that material is deficient, with a healthy degree of scepticism’

Inability of tribunals to remedy human rights violation following decision of Court of Appeal in Secretary of State for Work and Pensions v Carmichael and another [2018] EWCA Civ 548 – ‘leapfrog’ certificate for challenge to that finding to be considered by Supreme Court

Decision in brief

EC Regulation 883/2004 – under Articles 11, 25 and 29 is that if claimant was still to be regarded as self-employed, UK would be competent state, but otherwise effect of Polish pension is that Poland is the competent state – it is possible that where work is given up as a result of the sickness of the person being cared for, then can be treated as continuing as self-employed under Article 11 – but on the facts of the case, that did not apply as claimant was only working for two hours a week on a Saturday and it was plain she was not required to give up work to care for the disabled person

Decision in brief

A deportation order invalidates any leave to enter or remain in the UK (section 5(1) of the Immigration Act 1991), but the leave is extended while appeal rights against the order are being exercised (section 3D) – so claimant was not a ‘person subject to immigration control’ until his appeal rights against the deportation order were exhausted

Summary

The claimant failed to attend an appointment with his adviser. On appeal, the claimant said he failed to attend because he misread the requirement to attend and thought it was on the day after the actual date. A sanction was applied. The First-tier Tribunal dismissed the claimant’s appeal, holding that he did not have good reason for his failure to attend.

Judge Poole QC allowed the claimant’s further appeal and remitted the case to a fresh tribunal. A sanction can only be lawfully applied if there is proper notification of the requirement and of the consequences of failure to comply. Although the claimant clearly had been sent notification of the date, time and place of the appointment, ‘mere notification’ of those things was insufficient to meet that. The tribunal had erred in upholding the sanction when the Secretary of State had not shown that a sanctionable requirement had been imposed in the first place (paragraph 32).

The issue of adequate notification will not feature in every appeal. But it will in others – eg, as in this case where the claimant was unrepresented and the papers contained obvious inconsistencies about what was notified to the claimant (paragraph 21). Requirements can be imposed both within and without a claimant commitment, but the sanctions related not to the claimant commitment itself but for failures to perform ‘requirements’ which may or may not be in the claimant commitment (paragraph 12). It was for the Secretary of State to establish that a requirement had been imposed (paragraph 14). Public law principles of fairness apply to ensure that sanctions are only lawful where properly notified including the consequences of failure to comply (paragraph 18). That can be done by a combination of the claimant commitment and subsequent communication (including verbal). The legislation was sufficiently flexible for there not to be specific wording or methods used, but ‘the key matter for tribunals to consider is whether fair notice has been given, having regard to all of the communications between the SSWP [Secretary of State for Work and Pensions] and the claimant…does the evidence show that the substance of the relevant requirement and consequences of non-compliance were notified to the claimant?’ (paragraphs 29.1 and 29.2). In the present case, it was not shown that the work-related requirements in the claimant commitment had ever been notified to the claimant, and there was insufficient proof that other communications had supplemented the commitment so that the claimant had been adequately notified of the appointment in question (paragraphs 29–31).

Comment from CPAG

This decision is authority that the mere fact that a claimant has been told of the date, time and place of an interview/ appointment connected to a work-related requirement is insufficient to count as adequate notification. The claimant must have been notified so that s/he is able to understand what s/he is required to do and the consequences of failing to do so. Whether that has been met will depend on the facts of the case. But tribunals should be alive to the possibility that it has not been met.

Summary

The claimant had paranoid schizophrenia, involving thought disorder, paranoid and delusional thinking, low mood, lack of motivation and high levels of anxiety. He usually needed encouragement to venture outside at all, could sometimes manage a familiar journey but not all such journeys, and to undertake any unfamiliar journey he had to be accompanied by a friend who provided ‘moral support’. Having being refused PIP on transfer from disability living allowance (DLA), the claimant appealed to the First-tier Tribunal. The tribunal awarded the daily living component at the standard rate, but not the mobility component. In particular, although it scored the claimant four points under Activity 1b (needs prompting to be able to undertake a journey) it declined to apply any higher scoring descriptor instead.

Judge Hemingway allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred in its approach to higher scoring descriptors in Activity 1 in thinking (and deciding) that help needed from another person in actually following the route of a journey had to be active (in the sense of prompting, assistance, supervision, etc.) and could not be, as in the present case, merely passive. Had it not taken such an approach, it might in particular have, with due reference to ‘overwhelming psychological distress’, scored the claimant 10 points under descriptor 1d (cannot follow the route of an unfamiliar journey without another person, assistance dog or orientation aid) or 12 points under descriptor 1f (cannot follow the route of a familiar journey without another person, an assistance dog or an orientation aid). In fact, and as accepted by the Secretary of State, neither of those descriptors required anything more than presence, and prompting, etc. was not required (paragraphs 15 and 19).

In this case, the need for another person had to arise from ‘overwhelming psychological distress’, as established by the Upper Tribunal in MH v SSWP (PIP) [2016] UKUT 531 (AAC). However, that was clearly accepted by the tribunal in its award of points under descriptor 1b. The reason it declined to score points under descriptors 1d or 1f seemed to be that it considered, erroneously, that only active help from another person was relevant (paragraph 15). The judge also held that the claimant was capable of scoring under descriptor 1f even though he may be able to undertake (without help) some familiar journeys. If on a broad assessment the claimant could not undertake some other familiar journeys most of the time, then an ability to manage without help ‘a very limited number’ of specific journeys will not prevent him scoring points (paragraphs 20–21).

Comment from CPAG

In an important aside, the judge also said that, in his recent experience, some tribunals seemed to misunderstand MH in one respect. This is that they consider that a person who needs ‘prompting’ both to get out of the house and then also to enable her/him to follow the route of a journey could only score four points – ie, under descriptor 1b. But that is not right: if the need for prompting to prevent/reduce overwhelming psychological distress is also in the context of following the route of a journey, the claimant could instead score 10 points under descriptor 1d or 12 points under descriptor 1f (paragraph 18).