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Decision in brief

Analysis regarding jobseeker’s allowance housing costs in SK v SSWP [2013] UKUT 138 (AAC) approved and applied

Decision in brief

Paragraph 1 of Schedule 1 to the State Pension Credit Regulations 2002, No.1792 – in this context ‘receipt’ of AA is not synonymous with ‘payable’ – literal meaning of ‘in receipt of’ is simply that AA payments are received and, in this context, that is not unworkable or irrational

Decision in brief

So cannot apply where someone else undertakes the whole task for the claimant – claimant who only eats a proper meal if someone else cooks it for him is not receiving ‘assistance’ under that definition

Comment from CPAG

This decision was made some time ago but has recently been placed on the Upper Tribunal website, no doubt as a consequence of its adoption in the more recent CP v SSWP (CPIP) decision.

Decision in brief

Definition requires physical ‘intervention’ and is not involved where someone undertakes the whole task for the claimant (SSWP v GM [2017] UKUT 268 (AAC) – see below) – but can involve someone intervening to undertake a discreet or number of discreet parts of an overall process – for example, handling of hot pans but otherwise allowing claimant to cook – with result that points for ‘assistance’, but not for complete inability to cook, would result

Decision in brief

The money was not the subject of a court order and the claimant was free to deal with it as he wished – nothing in the separation agreement compelled the claimant to deploy the pension to maintain his wife – it was therefore properly regarded as the claimant’s income

Decision in brief

Claimant was a French national who lived with a self-employed British citizen in France but did not marry him until after returning to the UK – regulation 9 of the Immigration (European Economic Area) Regulations 2016, as interpreted in light of relevant European caselaw, requires that the claimant was the family member of (ie, in this case, married to) the British citizen in the other European member state before the return to the UK – as that did not apply, claimant did not have the right to reside as a family member of a British citizen in the UK

Decision in brief

So wrongful advice given by the A4e provider to end jobseeker’s allowance claim does not provide basis for backdating of the subsequent new claim under regulation 19(5)(d) of the Social Security (Claims and Payments) Regulations 1987, No.1968

Summary

The claimant was the father of a child. When the child started college, she began living with her godparents as their house was close to the college. But the claimant supported her financially (he got child benefit for her) and in other ways, and she stayed with him on alternate weekends. However, the claimant was refused the child element on the basis that, applying the relevant rule (at regulation 4 of the Universal Credit Regulations 2013, No.376), the claimant was not ‘responsible’ for the child as she did not ‘normally live’ with him. That was upheld by the First-tier Tribunal on the basis that the claimant lived most of the time with her godparents.

Judge Wikeley set aside the tribunal’s decision and held that the child ‘normally lived’ both with the godparents and the claimant, but, in this situation, applying regulation 6(4), the claimant should be regarded as responsible as he had ‘main responsibility’ for her (paragraphs 52–63). He remitted the case to a new tribunal for more findings on whether the child still counted as a child or qualifying young person. The tribunal had adopted a ‘fatally flawed’ approach to the test in regulation 6, including failing to appreciate the nuances of meaning in ‘normally lives with’ and eliding the statutory test (paragraph 46).

Regarding ‘normally living with’, the official guidance (at Advice for Decision Makers, Chapter F1, paragraph F1060) stated that it was a test of whether the child spend more time with the person than anyone else. That was wrong and based on a misunderstanding (paragraph 42). It drew on caselaw (CFC/1537/1995) about the ‘normally living with’ test for family credit (now child tax credit). But that considered a very differently worded rule and does not apply to UC (paragraphs 37–38). The UC rule presupposed that a child may normally live with a ‘minority carer’, and the ‘main responsibility’ test at regulation 6(4) provided a mechanism for resolving disputes in such situations. The expression ‘normally lives with’ should be applied ‘with a focus on the quality rather than the quantification’ of the normality, and the amount of time may be a factor ‘but cannot be the exclusive or determinative factor’ (paragraph 41). On the facts of the present case, the child ‘normally lived with’ both the godparents and the claimants. In such situations, responsibility was then a case of who had the ‘main responsibility’. On the facts, it was clear that the claimant had the ‘main responsibility’ for her (paragraph 60).

Summary

The claimant received a number of sanctions for failure to undertake ‘all reasonable’ work search action. Specifically, he failed to apply for a number of vacancies (for cleaning work) which the work coach considered suitable for the claimant. On appeal, the claimant in oral evidence said that the vacancies were unsuitable for him because they were all zero- hours contracts and would adversely affect his benefit, and that part-time work was no use as he could get more on UC. His representative submitted that the claimant misunderstood what was mean by a ‘suitable’ vacancy and that he misunderstood the effect of work on his UC. The First-tier Tribunal rejected the appeal, holding that ignorance of the law was no defence and could not amount to ‘good reason’ for failing to undertake all reasonable work search.

Judge Mitchell rejected the claimant’s further appeal, holding that the tribunal had not substantively erred in law. Section 27(2) of the Welfare Reform Act 2012 provides that a sanction could be applied for failure ‘for no good reason’ to comply with a work-related requirement. The tribunal was in fact wrong in holding that ignorance of the law could never amount to good reason. There was long- standing caselaw to the effect that ignorance of the law, where that ignorance is itself reasonable, can amount to ‘good cause’, and that caselaw applies to the concept of ‘no good reason’ (paragraphs 55–57). But, held the judge, ‘any old reason is not sufficient’ to count as ‘good reason’. On this (substantive) point, the tribunal arrived at the right result. The claimant did not give evidence that he had sought clarification from the DWP about the implications of different types of work, such as part-time work, on his UC. He could reasonably have been expected to have done that and raised is concerns or confusion with them. On the evidence, he was in regular contact with his work coach and there was no evidence that he was incapable of raising these simple queries. Therefore, his ignorance of the law could not amount to good reason (paragraphs 57–58).

Summary

The claimant was entitled to the high rate of the mobility component and the middle rate of the care component of DLA. On transfer to PIP, she was eventually awarded only four points regarding entitlement to PIP. On her further appeal, the claimant submitted (among other things) that she had been in receipt of DLA for approximately 23 years, but the First-tier Tribunal had not given a reasonable explanation for how its decision on PIP entitlement differed from her DLA award.

Judge Ward allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The judge also considered that the tribunal errors included not explaining the inconsistency between the DLA award and its decision about PIP. The Secretary of State argued that as DLA was a different benefit to PIP, a recent line of authority on the need to explain differences from previous PIP awards, relying on still earlier authority in R(M) 1/96, did not apply. But the judge disagreed. R(M) 1/96 established a generalised principle about the adequacy of reasons where there was genuine inconsistency between awards (paragraph 10). It was not enough merely to point to a change in the law and to ‘claim that as a result an earlier decision is of no consequence and need not be addressed’. However, it was also not enough to say that any decision that a benefit is not qualified for must be inconsistent with the previous award of a different benefit. Instead, what is required of the tribunal ‘is a degree of analysis as to the potential for a genuine inconsistency’ (paragraph 12).

The judge went on to outline a number of potential overlaps between DLA and PIP, including inability to walk for the mobility components and supervision for the care component of DLA and daily living component in PIP. But this was not an attempt to provide a definitive list. Rather, the judge intended to point to a situation where ‘the conditions on which a previous award of a different benefit was made are reasonably capable of being material to whether the conditions for the award of a subsequent benefit are met…’. Where there was an ‘apparently divergent decision on the subsequent benefit’, then R(M) 1/96 should be applied (paragraph 21).

Summary

The claimant had a number of health conditions including depression. He indicated that he did not want an oral hearing of the appeal. The First-tier Tribunal decided it could proceed and make a decision on the basis of the papers – ie, without a hearing. In its statement of reasons, the tribunal said that it considered relevant tribunal procedure rules and determined that it could make a decision on the papers, as it had before it ‘adequate information to come to a reasoned decision’.

Judge Hemingway set the decision aside and remitted the case to a fresh tribunal. The tribunal had erred in its reasoning about making a decision without a hearing, in particular by not paying sufficient attention to the duty to decide cases fairly and justly. The judge said he had put his decision on the Upper Tribunal website ‘because I have come across a number of cases recently where it seems to me that tribunals have relied overly or even exclusively (and therefore wrongly) upon a view that there is sufficient material available to make a reasoned decision when deciding whether to proceed on the papers’ (paragraph 12).

The tribunal said it had considered rules 2 and 27 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, No.2685. Rule 2 requires tribunals to decide cases ‘fairly and justly’. Rule 27 permits tribunals to decide a case without a hearing where the parties have consented (or at least not objected) to that and the tribunal ‘considers that it is able to decide the matter without a hearing…’. The judge allowed that tribunals will often be able to offer only a relatively brief explanation for not holding a hearing. However, the tribunal must show in particular that it has had proper regard ‘to what is fair and just in all the circumstances’. Further, it ‘must not allow its ability to arrive at a reasoned decision…to be determinative or overly influential’. As had been held in CE/2784/2016, there is not necessarily a connection between having sufficient material to make a reasoned decision and having sufficient information to decide an appeal fairly (paragraph 9).

Summary

The claimant was entitled to the enhanced rate of mobility component of personal independence payment but had appealed about the refusal to award the daily living component. The First-tier Tribunal adjourned the hearing, warning the claimant that ‘there was a risk’ that the mobility component would be reduced or removed, and when it reconvened, eventually decided to confirm the refusal of the daily living component and to reduce the mobility component to the standard rate.

Judge Wright held that the tribunal had erred in law and set the decision aside. On the evidence, he remade the decision so as to refuse the daily living component but to restore entitlement to the enhanced rate of the mobility component. The tribunal had erred in its decision notice (on adjourning and also when reconvened) in not making it clear whether entitlement to the mobility component was an issue raised by the appeal or alternatively was an issue which as a matter of discretion it considered should be addressed (paragraph 5). If it was the latter, there was no consideration (as required by R(IB) 2/04) as to whether it should exercise its discretion in that way (paragraph 6). If the tribunal considered the matter to be raised by the appeal, it failed to give reasons why that was so (paragraph 7).

Moreover, the tribunal erred in the warning given to the claimant, so that it acted in an unlawful and unfair manner. The most directly relevant caselaw here was BTC v SSWP [2015] UKUT 155 (AAC). Following BTC, the tribunal should have identified to the claimant what it was in the evidence that may have questioned his award of the mobility component. It had to be borne in mind that had the Secretary of State wished the tribunal to alter that award, he would have needed to have set out his reasons why, on the evidence, in advance of the hearing (paragraphs 2 and 8).

Comment from CPAG

The Upper Tribunal takes a broadly consistent approach to this subject – see, for example, the recent decision of Judge Hemingway in LJ v SSWP (PIP) [2017] UKUT 455 (AAC). Evidently, however, some First-tier Tribunals are still minded to interfere with uncontested awards without proper attention to matters like adequate warnings and exercise of discretion.