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Summary

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

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

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

Comment from CPAG

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

Summary

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

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

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

Decision in brief

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

Decision in brief

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

Decision in brief

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

Decision in brief

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

Decision in brief

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

Decision in brief

'Temporary interruption’ of studies – relevant rule (regulation 5(3) Social Security (Carer’s Allowance) Regulations 1976) is intended to draw a distinction between different types of interruption – where the interruption ‘means a person can no longer fairly be considered in fact to be actively pursuing a full-time course of study’ they are not prevented from being entitled to carer’s allowance – this applied to a carer who had started full time education, but by agreement with the educational establishment was on a ‘one year deferment’ to care for her disabled son – different from ‘other interruptions the nature of which means the person can fairly be said still to pursue a full time course of study’

Decision in brief

Problems mental in nature resulting from an operation may score points under the mental health descriptors – the reference to ‘mental illness or disablement’ in regulation 19(5) of the Employment and Support Allowance Regulations 2008 ‘encompasses not merely mental ill-health in the form of conditions such as depression or schizophrenia but mental disablement of all kinds, for example learning difficulties and cognitive deficiency whether that be by reason of age or acquired brain injury’ (paragraph 13)

Summary

The claimant appealed against a refusal to award her PIP on transfer from DLA. The representative requested copies of the claimants’ medical notes from her GP’s surgery. After a postponement, the representative sent to the tribunal a submission and a bundle of some 350 pages of medical records. There were no references in the submission to any of the contents of the accompanying medical records. The First-tier Tribunal refused the appeal.

Judge Wikeley held that the tribunal had erred in making inadequate findings of fact about the continence descriptors and remitted the case to a fresh tribunal. More substantively, however, he drew attention to an important procedural issue. The bundle of the claimant’s entire medical records sent to the tribunal included highly confidential child protection evidence which should not have found its way into the proceedings. The judge said that ‘this case should be a salutary warning for all representatives’ (paragraph 2). It later transpired that the representative had no idea that the submitted records contained this material, as she had not read all of it.

The disclosed medical notes included minutes of a child protection conference held in 1996. These minutes included highly sensitive information, and carried a prominent warning that they were ‘strictly confidential’ and ‘must not be copied or show, or their contents discussed, without the permission of the child protection co-ordination unit or the court’. Judge Wikeley noted that the representative was working under difficult constraints, including a dire funding situation in the advice sector and heavy workloads. However, the obvious point was that ‘a representative should never send in evidence which has not been read, if only to ensure that the evidence is relevant to the issues to be determined’ (paragraph 27). In the circumstances, a request simply to send a copy of the claimant’s medical notes, going back many years, would not have been a proportionate request, as such an unfocussed request simply increased the risk that other irrelevant and highly confidential information might be disclosed’ (paragraphs 31–33). Tribunals also needed to heed this warning. Careful consideration needs to be given to why medical records are being sought and the issues to which they are relevant, so that requests can be framed accordingly (paragraph 34).

Comment from CPAG

Many representatives will point to the increasing practice of GPs charging for focussed medical evidence as a driving factor behind a resort to medical records. However, the dangers of unfocussed requests for medical records and not reading evidence before submission are starkly represented in this case.

Summary

On transfer from disability living allowance (DLA), the claimant was awarded the daily living component, but not the mobility component. She was represented at the First-tier Tribunal hearing. Prior to the hearing, the tribunal had invited the representative to make it clear to the claimant that the tribunal would be considering the whole of the PIP decision – ie, including the award of the daily living component. At the outset of the hearing, the representative confirmed that the claimant fully understood that the whole of the award was to be considered, and the tribunal pointed out to the claimant that its powers included an ability to reduce the award. The tribunal not only refused the claim for the mobility component, but removed the award of the daily living component.

The claimants’ grounds for further appeal to the Upper Tribunal included that the tribunal erred in not adjourning before removing the daily living component. Reference was made to the decision in BTC v SSWP [2015] UKUT 155 (AAC). In the present decision, Judge Hemingway held that the tribunal had not erred in not offering an adjournment. He did not disagree at all with what was said in BTC, where a warning had been issued about the dangers of tribunals raising issues not previously raised and from failing to make it clear new concerns in order to allow a claimant to respond properly. But that did not mean that a tribunal was always obliged to adjourn. In the present case, the claimant had a competent representative who could have asked for a more detailed explanation from the tribunal, or applied for an adjournment. Had the claimant not been represented then the situation may have been different (paragraph 14).

More widely, the judge said: ‘A tribunal is, in my judgement, perfectly entitled, in general terms, to have confidence in a competent representative and to assume, where appropriate, that if an application which could have been made is not made, then an informed view has been taken not to do so. Much will turn on the particular circumstances but here the claimant was aware of the risk she was taking, she had competent representation, she was give a chance to consult with her representative, no further clarification as to the tribunal’s concern was sought and no adjournment request was made’ (paragraph 14).

Summary

The claimant was entitled to an award of tax credits for the year 2011/12. On 12 April 2012 (after the end of the tax year), the claimant was sent a ‘decision’ apparently informing him that he was not to be awarded child tax credit for his daughter from 9 November 2011, following the child’s mother making a claim on the basis of having ‘main responsibility’ for her from that date. The father appealed against that ‘decision’. Following a further change in the HMRC position, the First-tier Tribunal held that the father had main responsibility until 23 January 2012, and the tribunal decided the case on that basis.

Judge Wright allowed the father’s further appeal, but only in that in fact the tribunal had no jurisdiction at all to consider an appeal against the ‘decision’ of 12 April 2012. That is because that ‘decision’ was in fact not a statutory decision at all and did not carry a right of appeal. In fact, it was what HMRC call a ‘SLAN’ – a ‘Statement Like an Award Notice’ – issued about changes in payments while a proper finalisation of the award (under section 18 of the Tax Credits Act 2002) is being considered (paragraphs 18–19). On the facts of this case, which only emerged after extensive researches by the HMRC representative to the Upper Tribunal in this case, it was indeed a SLAN that was issued in April 2012, and a final section 18 decision was not in fact made until February 2013. Judge Wright held that the SLAN notice was wrongly treated by all as a decision that could be appealed as, in fact, there was no appealable decision and the tribunal had no jurisdiction to make a decision (paragraph 30).

Indicating considerable displeasure, the judge said it was ‘frankly disgraceful’ that it took until the present proceedings before the Upper Tribunal before it was revealed that the ‘decision’ at issue was in fact a SLAN. This ‘unedifying process’ was contributed to by ‘HMRC’s continuing (and in my view wholly unjustifiable) inability even to produce a copy of the decision said to be under appeal. A combination of Kafka and Captain Mainwaring might be thought unlikely to come up with such a sorry state of affairs’ (paragraphs 1–2). On the facts of the case (which involved subsequent ex gratia payments and writing off of overpayments), neither the claimant nor the child’s mother had lost out. But, warned the judge, ‘other claimants might not be so fortunate’ – if a claimant thought with very good reason s/he had already appealed, then s/he might not appeal against the later decision, which is in fact the appealable one, or not do so until it is too late (paragraph 4).

Comment from CPAG

Just two days later, Upper Tribunal Judge Wikeley made his own decision in a case involving an appeal against a SLAN, in TM v HMRC (TC) [2016] UKUT 512 (AAC). However, on the facts of this case, Judge Wikeley’s approach to resolving the mess involved treating the SLAN as a decision under section 18 of the Tax Credits Act 2002, so as to ensure a right of appeal and therefore that the claimant did not lose out on fundamental appeal rights.