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Decision in brief

What was said in PG v Commissioners for Her Majesty’s Revenue and Customs and NG [2016] UKUT 216 (AAC) about time spent with each parent not being determinative of who has main responsibility is correct – but it is equally an error in law to hold that in the current case the address which the dentist, GP and the school held for the children was as the tribunal put it ‘ultimately determinative as to who had the main responsibility for the children’ – this was particularly so given that the appellant’s evidence was that he was also the point of contact at the school, GP and dentist.

Summary

In this case, the Court of Appeal held that the absence of transitional protection for claimants who had their award of ‘legacy’ means-tested benefit wrongly terminated by the DWP and claimed UC as a result but were worse off on UC, was in breach of their human rights, and therefore unlawful. In so holding, the court reversed the earlier decision in these cases of the High Court but left it to the Secretary of State to devise a remedy.

TD was the mother of a disabled child (AD) who had been on income support (IS), child tax credit (CTC) and carer’s allowance. Her award of IS was terminated by the DWP. Although that decision was subsequently changed (as incorrect) on revision, in the meantime she had claimed UC, and was worse off as the amounts for her disabled child in UC were less than in her IS and CTC. The claimant in Reynolds was on income-related employment and support allowance (ESA) which included the severe disability premium (SDP). Her ESA was terminated following her failure, allegedly without good cause, to attend a medical assessment, but without the decision maker having regard to a letter from her GP explaining why she could not attend. Although that decision was subsequently changed (as incorrect) on revision, in the meantime she had claimed UC and was worse off due to there being no SDP in UC.

The Court of Appeal unanimously declared that in these circumstances the claimants had undergone a violation of their rights under Article 14 (prohibition of discrimination) of the European Convention on Human Rights. They had been discriminated against when compared to similar claimants who have not had their legacy benefit wrongfully terminated. The difference in treatment could not be justified (ie, so as to be lawful) as it was ‘manifestly without reasonable foundation’. The High Court, in the decision now under appeal, had erred in merely asking whether the Secretary of State had given adequate consideration to the question of justification, rather than actually deciding whether the difference in treatment was indeed justified.

Giving the lead decision, Lord Justice Singh held that ‘the difference in treatment was manifestly disproportionate in its impact’ on the appellants with regard to the Secretary of State’s aims in creating the UC rules, and so (in the absence of evidence from the Secretary of State to the contrary) was ‘manifestly without reasonable foundation’ (paragraph 92). The Secretary of State argued that the claimants in fact had undergone a change in their circumstances (ie, so as to justify their treatment) by themselves deciding to claim UC. But Lord Justice Singh said: ‘In my view, this is to elevate form over substance. Although it is true that the appellants were not compelled by law to apply for UC, as a matter of practical reality they had no choice but to apply for UC. It is important that the legislation in this country governing social security should be interpreted in a way which conforms to practical reality, given the potential impact on some of the poorest people in society’ (paragraph 69). Further, in rejecting administrative cost and complexity as a justification, he said: ‘What is crucial, in my view, is that these appellants were treated as they were despite their successful reviews, for reasons to do with administrative cost and complexity, which have nothing to do with the merits of their cases; and that the only reason in reality why they moved from legacy benefits to UC was as a result of errors of law by the state itself’ (paragraph 83).

Comment from CPAG

Other claimants who claimed UC having had their legacy benefit incorrectly terminated by the DWP and were worse off as a result may (depending on the facts) have good arguments that they have been treated unlawfully. However, the court made a declaration that the claimant’s Article 14 rights had been violated, rather than actually remedying that violation, which was left to the Secretary of State to devise. A response by the Secretary of State is now awaited.

Decision in brief

Tribunal took some details from appointee but (because of not realising she was the appointee and failure to adjourn to clarify this) did not put to her concerns about the medical evidence and so appointee did not have proper opportunity to address the tribunal – breach of fairness rules – claimant’s application for permission to appeal to the Upper Tribunal, although late and after a late request for a statement of reasons had been refused, cannot have lawfully been refused by ‘tribunal administration’ – ie, without putting before a judge.

Decision in brief

After reaching 65 the enhanced rate removed on reassessment – tribunal erred in holding that the award had been superseded for change of circumstances and that it had been for the standard rate, with effect that the enhanced rate could not be awarded after age 65 – supersession should have been for receipt of new official medical report, and on basis that original award was for the enhanced rate, with effect that the enhanced rate could be restored on appeal after age 65 – even if there had also been a change of circumstance, the correct approach would have been to allow the claimant to take advantage of the receipt of new medical report ground so as to avoid limitation of the award (DS v SSWP (PIP) [2016] UKUT 538 (AAC), reported as [2017] AACR 19, applied).

Decision in brief

Descriptor (d)(i) ‘cannot’ engage due to such activity causing ‘overwhelming psychological distress’ - relevance of ability to engage with social support – a tribunal is ‘quite entitled to infer from the fact that a claimant actually carries out an activity reasonably often that he or she can do so without undue pain, distress or other discomfort’ – MH v Secretary of State for Work and Pensions (PIP) [2016] UKUT 531 (AAC), reported as [2018] AACR 12 did not hold that being anxious, worried or emotional could not amount to ‘overwhelming’ distress or that it had to be a ‘momentary’ episode, rather that the threshold was very high – regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013, No.377 (need to carry out an activity safely, etc.) is relevant to (d)(i) but not to reasons other than overwhelming distress: ‘Distress that has the effect that a claimant cannot engage with other people, having regard to the factors mentioned in regulation 4(2A), must be regarded as overwhelming and, equally, distress that is not overwhelming cannot, if regulation 4(2A) is properly applied, have the effect that a claimant cannot engage with other people.’

Decision in brief

Non-European Economic Area family member who had acquired permanent right to reside after five years residence with that person - as had acquired permanent right to reside, fact of subsequent divorce from family member did not require claimant to be a worker, self-employed or self-sufficient to continue to have a right to reside – no longer needed family member status.

Decision in brief

Claimant had telephoned to make a claim for income support but following non-attendance at an interview, no decision on the claim had been made and no further action taken – tribunal originally (and correctly) struck out the appeal as no decision had been made and therefore no right of appeal arose – subsequent decision to set aside the strike-out on the basis of R(IS) 6/04 incorrect as that was about appeal rights against a decision that a claim was invalid, not about where (as here) no decision had ever been made

Decision in brief

Supersession in light of MH v SSWP (PIP) [2016] UKUT 531 (AAC), reported as [2018] AACR 12 – supersession for error of law - anti-test case rule applies so as to limit date of altered decision to date of MH (ie, 28 November 2016) – although MH was made within a month of original decision in claimant’s case, so that revision on any ground could have been applied within that month, no revision was made and there was no basis for that failure itself to have been the basis for a revision on the ground of ‘official error’.

Summary 

The claimant was entitled to employment and support allowance (ESA). In 2018, following a reapplication of the work capability assessment, he was found not to have limited capability for work and so not entitled. He requested a mandatory reconsideration of that decision. Due to error at the DWP, that was not dealt with for around four months. By the time it was dealt with (and the refusal of ESA upheld), the claimant was on a combination of income support and carer’s allowance instead, and he chose not to appeal. Instead, he challenged the legality of the so-called ‘mandatory reconsideration requirement’ at regulation 3ZA of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, No.991 (the ‘Decisions and Appeals Regulations’). Under that rule, a right to appeal only arises where the Secretary of State has first considered, following a request, whether or not to revise the decision. That was important in the claimant’s case as, although a claimant such as he could have been entitled to ESA pending appeal (under regulation 30(3) of the Employment and Support Allowance Regulations 2008), there was no such entitlement pending mandatory reconsideration.

In the High Court, Mr Justice Swift allowed one of the claimant’s arguments, that in cases such as his the mandatory reconsideration requirement at regulation 3ZA was in breach of his human right to a fair trial under Article 6 of the European Convention on Human Rights. Specifically, held the judge, ‘regulation 3ZA of the Decisions and Appeals Regulations is a disproportionate interference with the right of access to court, so far as it applies to claimants to ESA who, once an appeal is initiated, meet the conditions for payment pending appeal under regulation 30(3) of the ESA Regulations’ (paragraph 28). The remedy was ‘a declaration to the effect that regulation 3ZA of the Decisions and Appeals Regulations is unlawful in so far as it is applied to ESA claimants who would, if pursuing an appeal to the First-tier Tribunal, subject to compliance with the condition at regulation 30(2) of the ESA Regulations, be entitled to receive payment pending appeal pursuant to regulation 30(3)’ (paragraph 35).

The judge held that the mandatory reconsideration requirement at regulation 3ZA was not in itself a breach of Article 6. But it was an ‘impediment or hindrance’ to the right of access to a court, and so it fell to be considered (in the context of the claimant’s case) whether that was proportionate (paragraph 19). The regulation had a legitimate objective. What remained were the questions identified by Lord Sumption and Lord Reed in their judgments in Bank Mellat v Her Majesty’s Treasury (No.2) [2014] AC 700: could the objective have been pursued by a less intrusive measure without compromising its achievement; and having regard for the objective pursued and the severity of the consequences of the measure enacted, has a fair balance been struck between the interests of those affected and the general public interest? The judge took into account that there was no time limit for making a decision on mandatory reconsideration, and during that time payment of ESA ceases. Further, considered the judge, it was ‘anomalous’ that the payment of ESA pending appeal rule at regulation 30(3) did not apply to mandatory reconsideration (paragraph 25). The judge did not consider that the Secretary of State had provided an answer as to why this was. He therefore held that regulation 3ZA of the Decisions and Appeals Regulations was disproportionate in cases where ESA pending appeal would apply (paragraph 31).

Comment from CPAG

This decision is authority that claimants who would be entitled to ESA pending appeal should (if they so choose) be able to appeal directly against ESA refusal following a work capability assessment failure, rather than being required first to go through mandatory reconsideration.

Summary

The claimant’s deceased spouse had suffered from a substantial neurological disease. She had been unable, because of disability, to work throughout her working life and therefore could not and did not pay any class 1 or class 2 NI contributions (although she was credited with contributions). Following her death, the claimant’s claim for bereavement support payment was refused on the basis that his late wife had not actually paid sufficient NI contributions for him to qualify, as required (in Northern Ireland) by sections 29 and 30(1)-(3) of the Pensions Act (Northern Ireland) 2015 (‘the 2015 Act’). The claimant argued that this was a breach of human rights via discrimination under Article 14 of the European Convention on Human Rights (ECHR) read together with Article 1 of Protocol 1 of the Convention.

The Northern Ireland Court of Appeal held that, on the facts of this case, there had been a breach of Article 14 (and therefore unlawful discrimination). The court preferred to classify the Article 14 breach as one of the principle, established by the European Court of Human Rights in Thlimmenos v Greece (2001) 31 EHRR 15, that to avoid discrimination there may be a duty to treat differently a claimant whose situation is significantly different. In this case, the claimant and the children from the marriage had been treated similarly to those whose situation is relevantly different – ie, a surviving spouse where the deceased partner had not been so disabled as not to be able to pay contributions. Such treatment (like different treatment of people whose situations are similar) would not amount to discrimination if the treatment was justified. Regarding justification, the court applied the finding of the Supreme Court in R (DA and DS) v Secretary of State for Work and Pensions [2019] 1 WLR 3289 that the test is whether the treatment is ‘manifestly without reasonable foundation.’ However, the court emphasised the finding (at paragraph 66) in that decision that a ‘proactive’ examination of whether the foundation is ‘reasonable’ is involved, and that it would be ‘fanciful’ to hold that where the Secretary of State had failed to convince that court that the treatment was reasonable, there could still be a failure by the claimant to show that it was ‘manifestly unreasonable’ (paragraph 63). The four-stage test for judging proportionality, as set out in Bank Mellat v Her Majesty’s Treasury (No.2) [2014] AC 700 (and which includes consideration of whether the impact of the measure is disproportionate), was a relevant tool in this test.

Analysing the bereavement support payment requirement for the deceased spouse/civil partner to actually have paid sufficient contributions, the court considered ‘…that the policy in its application to those who through disability are unable to work throughout their working life is manifestly without reasonable foundation. It is just not reasonable to suggest that one can incentivise a severely disabled person to work if through their disability they cannot work. Alternatively, to put it another way, that is manifestly without reasonable foundation’ (paragraph 98). Further, the court held: ‘We consider that the adverse impact is disproportionate…the respondent has failed to justify the similarity in treatment of those with and those without severe disabilities so that the contributory principle in so far as it effects those individuals who through disability cannot work throughout their working life is manifestly without reasonable foundation’ (paragraph 100). Regarding remedy, the court concluded that: ‘We can reach no other conclusion than that section 29(1)(d) of the 2015 Act should be read and given effect so that the contribution condition is to be treated as met if the deceased was unable to comply with section 30(1) throughout her working life due to disability’ (paragraph 103).

Comment from CPAG

This decision is of persuasive authority in Great Britain. However, the court’s remedy was based on a finding that (as the primary legislation was in fact the Northern Ireland Act 1998) a declaration of incompatibility was not possible. But the equivalent bereavement support payment rule in Great Britain is at sections 30 and 31 of the Pensions Act 2014, which would appear to be the relevant primary legislation in that context, with the result that a declaration of incompatibility would appear to be possible in Great Britain. The decision is also notable for its insistence on a proactive approach, involving questions of reasonableness and proportionality, to the ‘manifestly without reasonable foundation’ test.

In a separate decision (Lennon v Department for Social Development [2020] NICA 15 (26 February 2020), the Northern Ireland Court of Appeal dismissed a human rights challenge to the rules, under which an award of widowed parent’s allowance is suspended if the claimant begins cohabiting and terminated if they marry. There was no discrimination against the claimant and her children: there was no valid comparison with a claimant who remained single, and any difference in treatment was in any case justified as objectively and reasonably founded and not manifestly without reasonable foundation.

Decision in brief

Exception where had an award in previous tax year and is making a claim for the next tax year – exception can only apply if it is the same party or parties making the new claim – claimant who had been part of a couple claim in the previous tax year but is now single cannot use this ground to make a new claim for the next tax year.

Decision in brief 

Notification of requirement to attend an interview can be made orally in the course of face-to-face contact, as well as in writing or by telephone or by electronic means