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Decision in brief

Fear of dogs – may in principle be taken into account if a fear of dogs sufficient to lead to overwhelming psychological distress is present when a person is unaccompanied outdoors and attempting to follow the route of a journey, and is attributable to a physical or mental condition, and does impact adversely upon a person’s ability to follow the route of a journey, and is capable of being sufficiently reduced by the presence of another while the route is being followed.

Decision in brief

A £50 civil penalty was also imposed under section 115D of the Social Security Administration Act 1992 regarding the failure to disclose – tribunal erred in both in failing to find that the claimant had ‘reasonable excuse’ for the failure, and in not exercising discretion about whether the penalty, even if applicable, should in fact have been applied – Secretary of State’s argument that the only criterion in the latter question is the amount of the overpayment (in particular whether it exceeded the Secretary of State’s ‘small overpayment threshold’) rejected as too narrow and restrictive – on the facts, claimant had a reasonable excuse for the failure to disclose in the light of his health problems; alternatively, a penalty should not have been applied on the particular facts of the case.

Decision in brief

Tribunal cited fact that the DLA evidence was five years old and that claimant had not requested the evidence – clear from CH and KN v SSWP [2018] UKUT 330 (AAC) that ultimately it is for the tribunal to make its own judgement as to whether DLA evidence might be relevant in a PIP appeal – it would be relatively rare for the Upper Tribunal to seek to interfere with decisions about that – but where the tribunal does expressly consider whether to obtain DLA evidence, it ought offer ‘a simple and succinct, perhaps even very succinct’ explanation of a decision not to do so – on facts of this case, the tribunal had narrowly failed to give an adequate explanation.

Summary

In this immigration case in the European Court of Justice (ECJ), the claimant and her son were Nigerian nationals. After arriving in the UK, they had a right of residence as (respectively) the spouse of national of a European Union (EU) member state and the child or dependent of that person. Those rights stopped in 2009. The claimant was divorced in 2010. The claimant worked on a self-employed basis; her son was in full-time education, firstly at school, then at university. Both applied for a permanent right to reside in the UK but were refused in 2010.

The first main question before the ECJ was in essence whether a parent of a child who was in education but who was more than 21 years old had a right to reside on the basis of being a primary carer of such a child, where the child had rights to education as the child of an EU worker. The Court held that the parent of such a child (where the child was exercising rights under Article 12 of EC Regulation 1612/68 to education as the child of an EU worker) may continue to have a 'derived' right to reside if that child 'remains in need of the presence and care of that parent in order to be able to continue and to complete his or her education', something which it was for the domestic court to assess, 'taking into account all the circumstances of the case before it' (paragraph 31).

The second main question before the Court was whether such a parent and child could have acquired a permanent right to reside on that basis - ie, on the basis of having been a primary carer, or a child in education of an EU worker respectively, for five years or more. The Court held that they could not. Permanent residence could only be acquired by fulfilling conditions laid down in EC Directive 2004/38. Although that made provision for situations in which family members who are not themselves EU nationals could acquire a right to reside, that was not satisfied in this case. Specifically, it held that, 'periods of residence in a host Member State which are completed by family members of a Union citizen who are not nationals of a Member State solely on the basis of Article 12 of Regulation No 1612/68, as amended by Directive 2004/38, where the conditions laid down for entitlement to a right of residence under that directive are not satisfied, may not be taken into consideration for the purposes of acquisition by those family members of a right of permanent residence under that directive' (paragraph 48).

Decision in brief

Mobilising - relevance of award of high rate DLA mobility component - where put in issue by claimant - ML v SSWP [2013] UKUT 174 (AAC); [2013] AACR 33 right to say that mere fact of the DLA award does not necessarily mean a mobilising descriptor applies - but ML v SSWP is not authority for simply disregarding the DLA award - the evidence behind the award matters and may be relevant for the mobilising descriptors (paragraph 5)- in this case the evidence behind the DLA award was potentially relevant and the DWP ought to have produced it (or been directed to do so) under rule 24 of the Tribunal Procedure Rules (paragraph 7)

Decision in brief

Personal independence payment - mobility component - decision in MH and others v SSWP [2016] UKUT 531 (AAC) represents the law up to the point where and insofar as new regulations effective from 16 March 2017 [SI 2017 No.194 - see Bulletin 257, p10] changed the law - entitlement up to 16 March is to be decided on basis of law as applied in MH

Decision in brief

Personal independence payment - Activity 6 (Dressing and undressing) - hesitation or indecision in dressing as a consequence of a health condition can be relevant - selection of clothing on basis of appearance can also be relevant in this, where as a consequence of a health condition

Comment from CPAG

See also DP v SSWP [2017] UKUT 156 (AAC).

Decision in brief

Mental health descriptors – use of aids and appliances not taken into account – regulation 19(4) of the Employment and Support Allowance Regulations 2008, No.794 provides that they are taken into account only regarding the physical health descriptors – but aids and appliances in any case not relevant to the tests involved in the mental health descriptors

Decision in brief

Income support (IS) on basis of being a foster carer – claimant stopped being a foster carer when she obtained a special guardianship order for the child (and later got child benefit and child tax credit) – change not disclose to DWP and on the facts no other IS prescribed category applied – overpayment caused by failure to disclose income is recoverable – but tribunal made insufficient findings of fact about date of receipt of new income and imposition of a penalty for failure to disclose without reasonable excuse should have been considered in light of advice from the local authority that her benefits would not be affected

Decision in brief

Need to apply regulation 11 of the Social Security (General Benefits) Regulations 1982 – claimant applied for a supersession of the assessment of his disablement from an industrial accident – tribunal in refusing to supersede accepted that there had been some degenerative changes regarding that but also found that disablement also resulted from another cause – regulation 11(4) required the tribunal to perform a notional assessment of the deterioration as a building block towards the actual assessment – should have assessed how disabled the claimant would have been during the period taken into account by the assessment if the other degenerative changes had not occurred

Decision in brief

Claimant missed time limit for submitting a claim in years up to 2019 – fact that women of same age would generally have been treated as making a claim in time on basis of retirement pension records at DWP did not amount to discrimination – relevant provision was discretionary and applied to DWP records regarding several benefits not just retirement pension – in any case, any difference in treatment was justified as objectively justified

Decision in brief

Entitlement stopped when claimant claimed tax-free childcare (refused) – attempted to make a new claim for tax credits in August 2019 – not possible due to introduction of UC – savings rule at Article 7(6) of SI 2015 No.634 (‘the No.23 Order’) did not apply as the August claim was not, as required, ‘for the next tax year’