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Medical evidence of publicly discredited assessor – to be given no weight
Secretary of State to come to a new decision based on other existing evidence or arrange for a new assessment.
Video surveillance evidence – authorisation for the surveillance marked ‘for judge only’ and not seen by other members of tribunal, claimant or representative
That was an error of law, although not a material error as it was agreed that the evidence was properly authorised – even in unredacted form, it should have been seen by all members of the tribunal – although the Secretary of State had been entitled to restrict sight of the unredacted authorisation to the tribunal, ‘excluding the appellant and her representative from any consideration of the surveillance authorisation evidence’ was a further error of law, although again immaterial – no different or higher standard of proof applies to the weighing of video surveillance evidence than it does to any other sort of evidence.
Claimant not precluded by virtue of the forfeiture rule as defined in section 1 of the Forfeiture Act 1982 from receiving a Category B retirement pension – the forfeiture rule does not apply to the claimant
Not satisfied that the claimant unlawfully killed her late husband – therefore, no questions arise for determination as to whether the claimant obtained a benefit in consequence of an unlawful killing nor whether the effect of the forfeiture rule should be modified – sections 1 and 4 of the Forfeiture Act 1982 and rules 26 and 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008.
Bedroom tax – whether small spare room counted as a bedroom
On the facts, tribunal was wrong to conclude that it did not – the First-tier Tribunal incorrectly applied the test of access to the room as contained in Nelson – the fact that a door cannot fully open into a room but touches the bed does not mean there is not reasonable access or that it is unsafe – a 50-degree angle of door opening on its own is not a sufficient reason to find that the arrangement of the room did not provide reasonable access or was too unsafe to use as a bedroom – on the facts, a 60-degree angle of opening was possible (working on the assumption of a 75-inch-long standard adult single bed) which was comfortable and safe.
Income – payments from a discretionary trust
To be regarded as ‘voluntary payments’ and so ignored as income under regulation 16(1) of the Employment and Support Allowance Regulations 2008 – trust was correctly classified as a discretionary trust on its terms, and so the trustees were neither obliged to pay the claimant income at all nor received anything in return – LC v SSWP (ESA) UKUT 220 (AAC) applied.
Claims made for several different prescribed diseases – Secretary of State entitled to issue separate decisions
Where the Secretary of State has made a decision awarding or disallowing disablement pension in respect of a particular prescribed disease, the First-tier Tribunal can only consider that prescribed disease if the claimant has appealed against that decision or it can treat the claimant as having done so, which requires that the claimant had a right of appeal against that decision – that includes that there must have been a mandatory reconsideration of the decision.
Tribunals – procedural irregularity leading to set-aside
Change of date of hearing notified to claimant at short notice, as a result of which her helper was unable to attend – rule 29 of the Tribunal Rules requires at least 14 days’ notice of the change of date, which was not observed – neither was there evidence that the claimant had consented to the change or that ‘urgent or exceptional circumstances’ applied (there had been an administrative error in setting the date), so no exception to the 14-day period applied – the lack of the supporter desired by the claimant meant the resulting procedural irregularity was material, and so the tribunal’s decision must be set aside.
Tax credits – income
Deduction for capital allowance – the claimant had not made a valid claim for capital allowance by the time his appeal was decided – even if he had made such a claim, it could not have succeeded as a matter of law as he was not operating or carrying on any overseas property business at the time of the decision and expenditure on a property could not constitute a permissible capital allowance – therefore, his income was too high to be entitled to tax credits during the relevant period.
Industrial injuries disablement benefit
Claimant had an existing award and his submission of Form BI168, even though in respect of a different prescribed diseases, was an application for a supersession of that award and not a new claim - arrears were therefore limited by the relevant rule on date a supersession takes effect – ie, date the change of circumstances was notified)
Tribunals – procedural irregularities leading to set-aside
Tribunal relied on medical report based on assessment in which (contrary to the claimant’s request) there was no interpreter – no procedural irregularity by the tribunal, and finding to the contrary in BF v SSWP [2019] UKUT 420 (AAC) not followed – First-tier Tribunal is not subject to the formal rules of evidence, and assessment of the report is a matter of fact, not procedure – ie, it needs to be weighed as evidence
Tax credits – loss of entitlement on death of partner in a joint claim
Section 3(4)(a) of Tax Credits Act 2002 provides that entitlement to tax credits on the basis of a joint claim ceases on death of the partner – the award does not continue until the end of the tax year – on the facts of the case, the claimant could not make a new claim for tax credits as a single person due to the introduction of universal credit (UC), and (although able to make a claim) he was not entitled to UC on the basis of his capital – no breach of human rights of claimant as a widower – for discrimination purposes, a widower is not in an analogous position to a couple with both partners alive – loss of entitlement to tax credits and the refusal of UC did not render any difference in treatment as manifestly without reasonable foundation
Jobseeker’s allowance – appeals re sanctions before 16 March 2013 in light of Reilly (No.2)
Effect of Remedial Order following Reilly (No.2) and TJ and others [2016] EWCA Civ 413; [2017] QB 657; [2017] AACR 14 – claimant lodged an appeal against the sanction decision before 26 March 2013 – appeal decided before coming into force of section 1A into the Jobseekers (Back to Work Schemes) Act 2013 – in such cases, section 1A requires Secretary of State to supersede a First-tier Tribunal decision upholding a sanction (so as to remove the sanction) – this applies even if the decision is under appeal to the Upper Tribunal.
