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Summary

In this case, the High Court considered an application for judicial review of the so-called ‘bedroom tax’ restriction on housing benefit (HB) to a claimant whose house had been adapted under the local authority’s ‘Sanctuary Scheme’ arrangements, to provide a secure space in the accommodation for people at risk of domestic violence. The Court held that the bedroom tax was not unlawful.

The claimant lived with her son in a three-bedroom house. The claimant had been the victim of domestic violence and was still at risk. The local authority had carried out adaptations to the house under its Sanctuary Scheme, to provide a secure place within the house. As a consequence of the ‘bedroom tax’ rule (introduced by the Housing Benefit (Amendment) Regulations 2012 No.3040), she was subject to a reduction in her eligible rent on account of having an ‘extra’ bedroom – ie, in this case a third bedroom. She had been award a discretionary housing payment (DHP) which had covered the consequent shortfall in rent, although was now in the position of having to re-apply for one.

For the claimant, it was argued that the 2012 regulations were unlawful in that they failed to provide an appropriate exception from the bedroom tax for victims of domestic violence on HB in accommodation adapted under Sanctuary Scheme arrangements. In particular, it was argued that the regulations were in breach of Article 14 of the European Convention on Human Rights (prohibition of discrimination) read together with, among other provisions, Article 1of Protocol 1 (right to possessions). Also, it was argued that in making the regulations the Secretary of State had failed to comply with his public sector equality duty under the Equality Act 2010 (by failing to address the position of victims of domestic violence), and also that the regulations breached Article 8 of the Convention (right to family life).

In the High Court, HHJ Worster rejected all of those arguments. There was indirect discrimination against women, as the majority of victims of domestic violence are women, and the evidence showed that the overwhelming number of those protected by Sanctuary Schemes are women (paragraph 15). However, the discrimination was justified (and so not unlawful) as applying the relevant test for justification, the difference in treatment was not ‘manifestly without reasonable foundation’. Although the judge accepted that there was good reason for the claimant to be able to remain in her home, that was not the relevant test (paragraphs 62–63). The judge considered that the discrimination was not manifestly without reasonable foundation because (with particular reference to the decision of the Court of Appeal in R (MA and others) v Secretary of State for Work and Pensions [2014] EWCA Civ 13; [2014] PTSR 584) the bedroom tax had been vigorously debated in parliament, and although people in the claimant’s position were not specifically referred to, it was expressly recognised that there would be ‘other hard cases’; the DHP fund was there for such cases and had been reviewed and ‘apparently adequately funded (so far)…’ (paragraphs 64–65). Regarding the public sector equality duty, the Secretary of State had considered gender in an Equality Impact Statement, recognition had been made that there would be other ‘hard cases’ and it was not a requirement to list every consequence of a major government policy (paragraph 80). Regarding Article 8 of the Convention, the judge considered that any effect on the claimant was ‘plainly well short’ of the high level required for a breach of the Article, alternatively any breach was justified, for the reasons given regarding Article 14 (paragraph 83).

Summary

In this decision, the Court of Appeal considered the entitlement to social security benefits of a number of so-called ‘Zambrano carers’ – ie, non-European (third country) nationals responsible for the care of a child who was a citizen of the European Union (eg, a British child). The Court held that under domestic legislation introduced following a decision of the European Court of Justice, although Zambrano carers had a right to reside and were entitled to support, that did not (following the introduction of domestic amendment rules) extend to social security benefits.

The question arose firstly because the European Court of Justice had decided in Case-34/09 Zambrano v Office national de l’emploi [2012] QB 265 that such carers had to be granted a right to reside in an EU member state, if the consequence of a refusal of the right to reside would be that the child would be deprived of the benefit of their EU rights by having to leave the territory of the European Union. The Court of Appeal referred to this as the ‘effective citizenship principle’. Secondly, in response to the decision in Zambrano, the government had on 8 November 2012 introduced a number of statutory instruments (‘the amendment regulations’) in which the right to reside of ‘Zambrano carers’ was recognised, but also making it impossible for them to become entitled to various benefits (and housing assistance under homelessness legislation). For example, the amendment regulations for entitlement to DWP-paid benefits was The Social Security (Habitual Residence) (Amendment) Regulations 2012 No.2587.

The Court held that the amendment regulations were not unlawful. However, Zambrano carers became entitled to a right to reside from the moment that they became such a carer, as opposed to any later date on which action to remove them would be taken (paragraphs 23–25). Also, for the EU citizenship rights of the EU child to be effective, then member states must ‘make social assistance available to Zambrano carers when it is essential to do so to enable them to support themselves in order to be the carer for the EU citizen children in their care within the EU’ (paragraph 26). But the Zambrano carer did not have an entitlement to the same level of social assistance as EU citizens entitled to reside in the member state under non- discrimination principles. Only EU citizens (ie, not Zambrano carers themselves) can rely on the nationality non-discrimination principle under EU law, and EU law had no application when a member state treated some people (eg, EU children with Zambrano carers) within its jurisdiction less favourably than others. The only restrictions on that were under domestic law, and in the UK denying Zambrano carers benefits was not in violation of Article 14 of the European Convention of Human Rights (as incorporated by the Human Rights Act), as the UK government had ‘policy reasons for making distinctions between Zambrano carers and others, and this court cannot say that those reasons are clearly without foundation’ (paragraphs 27–29). The Zambrano carer and the EU child were not left destitute: they could have recourse to assistance under section 17 of the Children Act 1989, and the carer could apply for long-term leave to remain under the Immigration Rules (paragraph 115).

Summary

The claimant was a severely disabled child entitled to the high rate of both the care and mobility components of disability living allowance (DLA). In 2010, he went into hospital for what turned out to be over a year. Applying regulations 8(1) and 10(2) of the Social Security (Disability Living Allowance) Regulations 1991 No.2890, payment was suspended once he had been in hospital for more than 84 days. His father (his appointee) challenged that on the basis that it breached the child’s human rights. That argument was dismissed by the First-tier Tribunal, the Upper Tribunal and then the Court of Appeal.

In a unanimous decision, the Supreme Court upheld the claimant’s further appeal and held that the decision to suspend payment of DLA violated his human rights. The decision unlawfully discriminated against him in suspending his DLA, and so was in breach of Article 14 of the European Convention on Human Rights (ECHR) when taken with Article 1 of Protocol 1 (right to protection of property). The Secretary of State was not obliged to suspend payment by primary legislation and so, given the court’s finding about breach of the ECHR, acted unlawfully. Accordingly, the First-tier Tribunal should have allowed the claimant’s appeal, setting it aside and substituting a decision that the claimant was entitled to continued payment of DLA (paragraph 48). 

Regarding Article 14 and discrimination, disability was a prohibited ground and the court held that the claimant was within the Article’s scope as someone with ‘other status’, namely as a severely disabled child in need of lengthy inpatient hospital treatment (paragraph 19). There was no justification for the difference of treatment compared to severely disabled children not in hospital. Primarily, that was because the court considered that it simply was not the case that, as argued by the Secretary of State, all the claimant’s disability related needs were catered for by the NHS and so to have continued to pay DLA would have been ‘double provision’. Rather, the claimant’s parents continued to care for him in hospital and incurred a range of related costs in doing so. It was estimated that the extra costs of travel to and from hospital, parking, food and drink for staying at the hospital, and laundry was about £8,000 (paragraph 6). 

The court also accepted that (in the context that parents are now encouraged to attend and care for disabled children, and evidence about the cost of this from charities) the case of the claimant’s parents was not a hard case, unreflective of the position of most parents in their situation. This was not, therefore, a case in which difference in treatment could be justified as a ‘bright-line’ rule, the effect of which was beneficial overall (paragraphs 27–36). The court also considered that in failing to conduct an evaluation of the possible impact of suspension of DLA in such cases, the Secretary of State was in breach of international law, namely the UN Convention on the Rights of the Child. Although such international conventions were currently not incorporated in UK law, they may be relevant in that, as here, interpretation of the ECHR should be ‘in harmony’ with them (paragraphs 38–44). 

The court was clear, however, that it was not making a general declaration about the violation of human rights. It accepted that ‘it may not always follow that the suspension of payment of a child’s DLA following his 84th day in hospital will violate his human rights’; although ‘no doubt many other disabled children’ would benefit from the decision, in individual cases the  Secretary of State must have the opportunity to consider how he could avoid violating the rights of disabled children in this situation (paragraph 49).

Comment from CPAG

The decision establishes that the First-tier Tribunal (ie, not just the court) can hold that the suspension is unlawful – ie, on human rights grounds. The court’s rejection of a ‘bright-line’ justification in the light of the evidence may be important in other discrimination challenges, as might its reference to the potential relevance of the international conventions, such as the UN Convention on the Rights of the Child.

Summary

The claimant had been on jobseeker's allowance but decided to go into business on his own as a painter and decorator. He claimed working tax credit (WTC) and explained on the claim form that his business was still in the early stages. His advertising consisted of an internet advertisement and door-to-door work. His preliminary accounts were a list of jobs with prices and outgoings. His claim was refused on the basis that it did not meet the definition of 'self-employed'. The First-tier Tribunal upheld that decision, holding that the claimant 'was unable to provide sufficient evidence that his self-employment was commercial, profitable, regular and organised'. For example, the tribunal considered it significant that the claimant did not have business plan.

Judge Wikeley allowed the claimant's further appeal and substituted a decision that he was 'self-employed', within the terms of the relevant definition of that term at regulation 2(1) of the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002, SI No.2005. That requires that the claimant be 'engaged in carrying on a trade, profession or vocation or a commercial basis with a view to the realisation of profits, either on one's own account or as a member of a business partnership and the trade, profession or vocation is organised and regular'. The tribunal had erred in failing to adopt a sufficiently inquisitorial approach (given deficiencies in the HM Revenue and Customs (HMRC) response to the appeal) and/or by disregarding time spent in setting up the business and handing out leaflets door-to-door, in breach of R(FIS) 6/85 (paragraph 24).

The judge made some more general comments about the approach to the definition of 'self-employed'. He approvingly set out the appellant's own response to the HMRC decision that the business was not carried with a view to a profit, which was: 'Why would I even bother with this if I didn't intend to make a profit? Do you think I'm doing this for fun?' (paragraph 8). Commenting himself, the judge pointed out that the finding in R(FIS) 6/85 that remunerative work in the self-employed was not restricted to activities which are costed is still good law (paragraph 30). Also, tribunals needed to 'get real'. Self-employed WTC claimants are typically 'not putting together business proposals of sufficient rigour to pass muster on a Masters of Business Administration course or to withstand scrutiny in an episode of Dragon's Den. Usually they are much more modest enterprises, as in the present case, and expectations about the documentary paper trail should be adjusted accordingly' (paragraph 31).

Comment from CPAG

The judge's observation that tribunals need to 'get real' neatly captures what went wrong in this case. Both HMRC and the tribunal adopted a rigid and unrealistic approach to a claimant who was working alone on a small scale and had only recently started self-employment. In fact, he had an accountant, which the First-tier Tribunal overlooked and Judge Wikeley did not; but he was at pains to point out that not having an accountant (or a business plan) would not in itself have indicated that the claimant failed to meet the self-employed test (paragraphs 26-27).

Summary

The claimant had various disabilities due to a history of persistent alcoholism. On transfer from disability living allowance (DLA) to PIP, he scored nil points. The First-tier Tribunal accepted that the claimant was alcohol dependant and (implicitly) that that amounted to a 'mental condition', but rejected his appeal, holding that alcohol was not having an impact upon his functioning.

Judge Hemingway allowed the claimant's further appeal and remitted the case to a fresh tribunal. The tribunal had erred in not explaining why it considered that alcohol did not affect the claimant's functioning and so 'effectively overlooking any possible consequences of the alcohol dependency and any intoxication when assessing whether or not any of the descriptors were satisfied' (paragraph 18).

The judge noted that in R(DLA) 6/06 it had been held, in the context of DLA, that alcohol dependency is a medical condition and a person who cannot realistically stop consuming alcohol to excess because of a medical condition could reasonably be said to have a disability, and to require help relevant to DLA entitleme11t. There was no reason why the effects of intoxication should not be taken into account for DLA (paragraphs 14-15). The judge said a similar approach should be taken to alcohol dependency and PIP. Specifically, alcohol dependence is a 'mental condition' for the context of PIP and difficulties caused by it may therefore be relevant to PIP (paragraph 16).

The judge accepted that, depending on the facts, an alcoholic claimant who only becomes significantly intoxicated at the very end of the day would probably have performed many of the PIP functions already. So tribunals may need to make findings of fact about when impairment would take hold during a day, which functions would be impaired and whether intoxication could properly found a conclusion that incapacity had a 'tangible impact' during a day (paragraph 24).

Comment from CPAG

The primary importance of this decision lies in its clarification that alcohol dependence is a 'mental condition' for PIP, and so that resulting disabilities can be taken into account. Tribunals are reminded that they must then attend to the particular facts in deciding whether or not PIP descriptors are satisfied.

Summary

In 2012, the claimant became aware that he would be liable to pay costs, as yet unspecified, to the developers of his apartment. In 2013, he applied for employment and support allowance (ESA). He did not disclose savings of about £50,000 in a building society account, as he had ear-marked that money for eventual repayment of the costs. In 2014, the court issued a costs certificate of around £47,700. Initially, the claimant's brother-in-law paid it as it would take the claimant time to get access to the money in the building society account. In the meantime, the DWP became aware of the money in the building society account and issued decisions that the claimant was not entitled to income-related ESA because the capital limit was exceeded, and that the benefit paid was recoverable on the basis of misrepresentation - ie, the amount of his capital.

On appeal, the First-tier Tribunal allowed the claimant's appeal, holding (in essence) that there was no overpayment because 'in his mind' the claimant regarded the capital as set aside for repayment of a debt and, therefore, was to be disregarded as capital.

Judge Wikeley set the decision aside and remade the decision to the effect that the claimant had been overpaid and the overpayment was recoverable from him because he had misrepresented his capital. The claimant 'enjoyed the sole legal and beneficial ownership' of the money in the building society account and, despite his intentions, it was 'in principle his money to do with as he wished' (paragraph 66). The claimant's misrepresentation was in the circumstances entirely innocent, but nevertheless caused the overpayment which was therefore recoverable (paragraph 67).

In closing remarks, the judge suggested that the absence of dishonesty, that the claimant might be said to have tried to act responsibly and his poor. mental health might all be factors in the purely discretionary decision as to whether actually to enforce recovery (paragraphs 68-74).

The judge dismissed the argument that the building society money should be ignored as the claimant was under a 'certain and immediate liability' to pay the court costs, an argument derived from the Court of Appeal decision in Chief Adjudication Officer v Leeves. The Leeves principle did not apply here. That was actually about the classification of income (by extension, capital) where when given by a creditor the money is already impressed with a certain obligation of immediate repayment. In the present case the money was already the claimant's capital and the repayment was due not to a creditor but to a third party. Applying Judge Mesher's comments in JH v SSWP [2009] UKUT 1 (AAC), 'the mere existence of unpaid liabilities, even if payment is due, does not affect the calculation of the amount of capital for benefit purposes' (paragraphs 50-51).

Also, the judge dismissed arguments that the money was somehow impressed with a trust or given a nil value. The claimant had received no money from his brother-in-law impressed with a trust, a trust was not created merely by what was in the claimant's mind, and there was no court order on the money in the account (paragraphs 53-57).

Summary

The claimant had been entitled to income support (IS) with consequent 'passporting' to maximum HB - ie, through being treated as having nil income and capital. In January 2011, the local authority stopped her HB on the basis that her entitlement to IS had ceased in October 2010 and raised a recoverable overpayment of HB from that point. Although it was subsequently recognised that the claimant had been awarded HB from December 2010, recovery was still sought for the October to December 2010 period and the claimant was also held to be liable for the 'bedroom tax', a gap having arisen in the claimant's HB entitlement.

The First-tier Tribunal rejected the claimant's appeal, finding that the claimant had received IS between October and December 2010 in error, as she had not been entitled to it in law, that she did not become entitled to jobseeker's allowance (JSA) until December 2010 and, in the absence of producing details of her means, she was not entitled to HB in that period.

Judge Wikeley held that the tribunal had erred in law and substituted a decision that the claimant was entitled to 'passported' HB throughout the October to December 2010 period. On the facts, it was a reasonable interpretation of DWP correspondence that she had been awarded backdated JSA in that period (following a claim by the claimant in December 2010), but arrears had been withheld in recognition that IS had already been paid in error (paragraphs 48-50). The tribunal had erred in failing sufficiently to investigate the issue of backdated entitlement to JSA and failed adequately to explain its reasoning (paragraph 36).

The judge noted that the requirement for the claimant to be 'on' a qualifying benefit required lawful entitlement to the benefit. He rejected the claimant's argument that (applying the Court of Appeal decision in R v South Ribble DC HMRB ex p Hamilton [2000] 33 HLR 102 that meant only ruling out cases of fraud (paragraph 41). But he also had reference to the decision of Judge Masher in SO v Newcastle CC (HB) [2010] UKUT 306 (AAC). That held that a DWP decision that a person was no longer entitled to IS was only effective once notified. In the present case, the local authority's argument that HB entitlement ceased as soon as the qualifying criteria were no longer met was 'far too sweeping', and inconsistent with that (paragraph 40).

However, the judge went on to distinguish the present case from the facts in SO, as in the present case, unlike in SO, it was clear that the claimant knew of the termination of her IS before the local authority made its HB decision (paragraph 42).

Comment from CPAG

The saving grace for the claimant in this case was that it was accepted that she was in fact entitled to JSA (ie, a qualifying benefit) in the relevant period. Failing that, the fact that she knew of the termination of her IS before the HB overpayment decision was made would have been problematic for her.

Summary

The claimant had a number of physical and mental health conditions, including inflammatory joint disease, rheumatoid arthritis, gout, pain and swelling in the hands. He failed the work capability assessment. The First-tier Tribunal rejected his appeal. In so doing, the tribunal noted that the claimant had last worked as a shelf stacker, and that taking account of the transferable skills from that job, there was 'an adequate range of work' he could undertake without substantial risk to himself or others.

Judge Bano set the decision aside and referred to case to a fresh tribunal. The tribunal had erred in not giving adequate reasons regarding the 'substantial risk' rule at regulation 29 of the Employment and Support Allowance Regulations 2008, SI No. 794. In Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42, the Court of Appeal had held that is was necessary to assess the 'type of work' that a claimant could do without substantial risk. The tribunal's reasoning did not need to be long or elaborate, but- said Judge Bano - it was necessary that it was 'reasonably apparent' from the reasons that the individual circumstances of the claimant had been properly taken into account (paragraphs 8-9).

It was true that the tribunal had explained why (with reference to lack of reasons and differences from the claimant's own account) it did not accept the evidence of the claimant's GP. But his physical disabilities 'could be expected to call into serious question' his ability to resume work as a shelf stacker or similar work, and the tribunal had been unclear about how his alleged abilities regarding watching television and using a mobility phone were relevant to particular work (paragraphs 10 and 11).

Overall, held the judge, an informed reader of the tribunal's decision 'is left guessing as to what specific type of work the tribunal considered that the claimant could undertake without substantial risk to his mental or physical health' (paragraph 12).

Summary

This decision of the Scottish Court of Session, now reported, concerns the right to reside for income support (IS) purposes of a child of a European jobseeker estranged from both parents, in circumstances in which the parent with a right to reside was no longer in the UK.

The claimant, a Polish citizen, was at school in the UK. Her mother joined her in the UK in 2014 and was a jobseeker, but returned to Poland. The father had never been in the UK. The claimant was estranged from both parents. Her claim for IS was refused on the basis that she did not have the right to reside. Although the First-tier Tribunal allowed her appeal, it was overturned by the Upper Tribunal, who considered the right to reside at issue - that of a family member of a jobseeker - was excluded for 1S purposes.

The Court of Session allowed the claimant's further appeal, and substituted a decision that she did have the right to reside for IS purposes. It was true that a right to reside as the family member of a jobseeker who was in the UK was excluded under regulation 21 AA(2)(b) of the Income Support (General) Regulations 1987, SI No.1967. But the court accepted that that provision, by referring to a jobseeker who was a 'qualified person' under the Immigration (European Economic Area) Regulations 2006, SI No.1003 (the 'EEA Regulations') referred only to jobseekers who were in the UK. The extended right to reside of such a person and her/his family members was under regulation 14(2), and this was the right that was excluded in the IS rules.

By contrast, where a person (like the claimant) is the direct descendant of someone who stopped being a qualified person on ceasing to reside in the UK, and was in education in the UK immediately before then, s/he retains her/his right of residence under regulation 10 of the EEA Regulations and has an extended right to reside under regulation 14(3). That, considered the court, was not excluded by the IS rules (paragraphs 22-26). There was no absurdity in such an approach. On the contrary, held the court, 'we consider that it is consistent with the principles of non-discrimination and equality of treatment which are fundamental to EU law that children of EEA citizens who are estranged from their parents and left in the United Kingdom should be treated in the same way as British children would be treated in the same circumstances' (paragraph 29).

Summary

This decision of the Scottish Court of Session concerns the meaning of 'social support' in Activity 9(c) of the personal independence payment assessment, namely whether the claimant scores four points because s/he needs 'social support to be able to engage with other people'. The court considered an appeal by the Secretary of State against the decision on the Upper Tribunal in MMck v SSWP [2016] UKUT 191 (AAC). The Secretary of State submitted that the Upper Tribunal had been wrong to hold that 'social support' could - in specific circumstances - include 'prompting', and that the social support could in some situations be given in anticipation of the claimant meeting people face to face, rather than just at the same time as the engagement.

The court rejected the Secretary of State's appeal. There could be 'no justification for a requirement that either prompting or social support must be given during or immediately before the face-to-face engagement with other people' (paragraph 50). The court did accept that there needed to some sort of 'temporal or causal link' between the support and the engagement.

Endorsing the approach of the Upper Tribunal, the court considered that, for example, a psychologist could give a psychological intervention which could mentally attune the claimant to go and meet people face to face. On the other hand, where, as a result of psychiatric or psychological intervention in the past, the claimant now did not need further help to engage, it could not be said that social support (or prompting) was required. It was for the decision maker or tribunal to decide whether the required temporal or causal link was present (paragraphs 47-51 ).

The court held that there was the potential for overlap between 'prompting' and 'social support'. The crucial distinction between the two was that social support 'comes from a person trained or experienced in assisting people to engage in social situations' (paragraphs 54-55). That did not mean the mere fact that prompting came from such a person meant it was social support. There had to be some necessity for it to come from that person, so that 'encouragement or any other sort of prompting can qualify as "social support" if, to render it effective or to increase its effectiveness, it requires to be delivered by someone trained or experienced in assisting people to engage in social situations' (paragraph 56).

Decision in brief

While tribunal has a function to enquire, there are certain clinical matters which should be respected - re both Activity 9 (Engaging with people face to face) and the mobilising descriptors, tribunal erred in restricting consideration to social contact that was 'reasonably necessary' or to what walking was 'reasonably required' - wrong to exclude claimant's choice- reasoning in Secretary of State v Fairey (R(A) 2/98) that 'the yardstick of a "normal life" is important' was pertinent here

Decision in brief

For 'reasonable grounds' for believing' that the rate is wrong or that claimant is not entitled - on appeal, tribunal stands in shoes of decision maker and considers whether at the time of the section 16 decision there were 'reasonable grounds' or not - appeal is also against the discretionary decision to amend or terminate the 'award' - should still be decision about 'entitlement' at the end of the year, under section 18

Comment from CPAG

At the time of making the present decision, the judge was aware that a decision in LS and RS v HMRC was forthcoming. Insofar as an appeal against a section 16 decision is not lapsed, it remains pertinent. LS and RS v HMRC changes that in the situation where a decision under section 18 is made before the appeal is heard - ie, because the section 16 appeal will then lapse. However, as both the present decision and LS and RS v HMRC indicate, a claimant appealing a section 18 decision is able to make all the points about entitlement that s/he wishes to.