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Decision in brief

A commode can be an 'aid' for managing toilet needs or incontinence - if the claimant does suffer from incontinence, mobility problems in getting to the toilet in time can be taken into account in assessing whether s/he reasonably needs to use an aid or appliance

Decision in brief

If a claimant walks at a slower pace than normal but is able to cover distances with a 'reasonable time period' (as defined at regulation 4(4)(c) of the Social Security (Personal Independence Payment) Regulations 2013), it is not possible to take that slowness into account when considering whether the walking ability is of an 'acceptable standard' (as referred to in regulation 4(2A)(b))

Decision in brief

Will not apply where claimant merely being 'treated as' in such work under the four-week run-on rule, immediately before start of the maternity allowance

Decision in brief

There is no requirement that the claimant's needs are met most nights, or most of the time - no requirement that the claimant's needs are met more than half of the nights in any given week, and an arithmetical approach is not consistent with previous caselaw -tribunal should make factual findings and consider in the round whether the test is met

Summary

The claimant was due to attend an oral hearing of his appeal along with his representative. The day before the hearing, the representative's organisation emailed the tribunal saying that the representative was ill and requesting an adjournment. Nothing was said about the claimant not attending; in a subsequent appeal to the Upper Tribunal it became clear that the claimant had either been expressly told not to attend the hearing by his representative, or at least that he had gained that impression. The tribunal refused to adjourn and heard the appeal (dismissing it) in the claimant's absence. A district tribunal judge refused an application to set it aside.

Judge Wikeley allowed the claimant's further appeal against the refusal to set the decision aside. The refusal of the claimant's appeal was set aside and a new tribunal was to reconsider it. There was no duty on a tribunal to telephone an absent appellant, and neither was there an obligation in every case to at least consider telephoning an absent appellant (paragraph 14). However, where a tribunal decided to proceed in the unexplained absence of an appellant, the tribunal should then adopt a more flexible and discerning approach when considering an application to set aside (paragraph 15). In the present case, the district judge had erred in not considering that a set-aside was in the interests of justice (paragraphs 16-18).

The judge considered the implications of the employment appeal tribunal's decision in Cooke v Glen rose Fish Co. In that case, it had been held that an employment tribunal was obliged at least to consider whether to telephone an absent appellant. But that was not, held the judge, good authority for the First-tier Tribunal in the Social Entitlement Chamber - ie, including social security appeals (paragraph 32). The relevant law was different, and in particular there was no such express requirement in the Social Entitlement Chamber's procedural rules (The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, No.2685). Where there is an unexplained absence, the First-tier Tribunal must apply rules 2 (overriding objective for fairness and justice and obligation to co-operate with the tribunal) and 31 (hearings in a party's absence). Applying those in the circumstances of the case, a telephone call may be good practice, but the rules could not be fettered by 'elevating what may in some circumstances be an example of good practice into a proposition of law' (paragraph 37).

Comment from CPAG

This decision serves as a warning to representatives not to assume that their non-attendance, or that of the appellant, automatically means that a hearing cannot proceed. Before considering the case, Judge Wikeley observed: 'an experienced representative... should know that [where they cannot attend the hearing] they should advise the Appellant to attend in any event... Representatives, like appellants, are under a duty to co-operate with the tribunal' (paragraph 13).

Summary

The claimant was a child with type 1 diabetes. She had been awarded the lower rate of the mobility component and the middle rate of the care component of disability living allowance but, on a renewal claim, both awards were removed. The claimant appealed. The Secretary of State did not supply to the First-tier Tribunal documentation about the previous decision awarding benefit to the tribunal, but merely said that 'the documents relating to this claim have not been enclosed but can be obtained if Tribunal wishes to view them'. The tribunal proceeded without the documentation and rejected the appeal, holding that the claimant was now older and could manage and control her condition.

Judge Hemingway allowed the claimant's further appeal and remitted the case to a new tribunal. The tribunal had erred by not at least acknowledging the existence and availability of the evidence in the earlier documentation and considering whether to call for it (paragraph 21). As a preliminary matter, the judge agreed with the acceptance by the Secretary of State that, in this case, the Secretary of State had been under an obligation (under rule 24 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008) to produce to the tribunal the documentation used when making the previous awarding decision. The judge considered that would usually be the case in an appeal regarding the refusal of a renewal claim (paragraph 17).

The substantive point, however, was what the approach of the tribunal should be when the Secretary of State had not fulfilled his obligation under rule 24. The judge rejected the argument that a tribunal will always be under an obligation to adjourn to obtain the missing evidence, as being an 'unduly inflexible' approach (paragraph 19). However, he did consider that generally speaking 'tribunals should be very cautious in deciding to, as it were "bat on" in circumstances where such material has not been produced but should have been' (paragraph 20). In this case, the tribunal might reasonably be said to have concentrated on the basis of what seemed to be the more up-to-date position; however the tribunal had not even considered the possibility of calling for the earlier evidence, and it could not have known the exact basis of the earlier award. In these circumstances, the tribunal erred in failing, as a minimum, to consider whether to call for the earlier evidence (paragraph 21).

Comment from CPAG

The judge seems to accept that FN v SSWP [2015] UKUT 670 (MC), concerning employment and support allowance, could be relevant to this case. Although he did not make extensive reference to FN, his reasoning is not dissimilar, in that he declined to hold that tribunal should always adjourn to get the missing evidence. However, he is more forthright in considering that consideration to getting it should always be given, and in urging caution before proceeding without it.

Summary

This decision of a three-judge panel of the Upper Tribunal dismisses an argument that the transitional rules regarding transfer of disability living allowance (DLA) awards to claims for PIP were unlawful. Specifically, it was argued for the claimant that the provision in the Personal Independence Payment (Transitional Provisions) Regulations 2013, No.387, that an award of PIP made under the transitional rules does not take effect for 28 days after the award is made, breached discrimination rules in the European Convention on Human Rights (ECHR). It was also argued that the rules were ultra vires in that they produced an irrational result.

The claimant was entitled to DLA at the lowest rate of both the care and the mobility components. On transfer to PIP, following a mandatory reconsideration, she was awarded the enhanced rate of the daily living component. She appealed to the First-tier Tribunal on the basis that setting of her PIP entitlement from 28 days after her date of claim (with the old DLA award, which was worth significantly less, continuing for that time) was in breach of Article 14 of the ECHR read with Article 1 of Protocol 1. Her rights as a disabled person entitled to a higher award of PIP than DLA had, it was argued, been breached. The tribunal dismissed the appeal.

In the Upper Tribunal, Mr Justice Charles and Judges Rowland and Wright dismissed the claimant's further appeal. The test of discrimination involved whether it could be justified, and would be unlawful if it had 'no objective and reasonable justification' (paragraph 47, applying Stec v United Kingdom [2006] 43 EHRR 1077). The judges considered that any discrimination was justified, as it had an objective and reasonable justification, and that for the same reason the rules were not irrational. Cost, practicality and the need to protect those who would lose out were part of the judges' reasoning. The regulations were 'pursuing a legitimate aim'. That was part of a more general aim of moving to PIP 'so as to reduce public expenditure and better focus social security social security benefits on the more seriously disabled, but more specifically to ensure and effective and manageable transition from DLA to PIP for DLA claimants and one which protected the claimants' entitlement to DLA until the transition had been completed' (paragraph 79). The regulations were in proportion to these aims. The claimants who benefited from transition to PIP were caught in a 'hugely complex transition from one benefit to another', the design of the transition was deliberately aimed at protecting those who would lose out, and the judges were satisfied that the protection of those claimants was a legitimate aim (paragraph 80).

Summary

The claimant was awarded the enhanced rate of the mobility component of PIP by the First-tier Tribunal, for a period starting from 2 January 2014 and ending on 1 January 2016. A renewal claim form was sent to the claimant in October 2015; following receipt of that and a new medical report, the tribunal's award of PIP was removed from 20 November 2015. The claimant's eventual appeal against that was dismissed by a second tribunal.

Judge Wright allowed the claimant's further appeal and remitted the case to a new tribunal. Both the DWP and the second tribunal had failed to deal correctly with the removal of the award made by the first tribunal. This was 'yet another case' in which a removal of an award of PIP 'was not dealt with in any sense adequately either by the Secretary of State in his appeal response to the First-tier Tribunal or by that tribunal in deciding the appeal' (paragraph 1). Indeed, the Secretary of State's response for the second tribunal was 'woeful and wholly inadequate' (paragraph 8).

Specifically, the tribunal needed to satisfy itself that there was an applicable supersession ground for revisiting the decision of the first tribunal (paragraph 9). Endorsing SF v SSWP (PIP) [2016] UKUT 481 (AAC) (Bulletin 265, p11), the judge reminded the new tribunal of its obligation both to identify the relevant ground for supersession and the date from which such a decision properly takes effect (paragraph 9). One potential ground was at regulation 26(1 )(a) of the Universal Credit, Personal Independence Payment, Jobseeker's Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013, No.381. That permits supersession on receipt of a new official medical report. But that did not determine the outcome of the supersession: tribunals still need to consider whether the evidence showed that the original award should indeed be changed, and then explain their findings (paragraphs 11-15, also citing the decisions of Judge Mesher in KB v SSWP (PIP) [2016] UKUT 537 (AAC) and OS v SSWP (PIP) [2016] UKUT 538 (AAC)). In the present decision, Judge Wright pointed out that the effective date of any changed entitlement following supersession under regulation 26(1 )(a) could only be from the date of the superseding decision (paragraph 15).

Comment from CPAG

The Upper Tribunal is clearly trying to emphasise to the DWP and tribunals that interfering with a current award of PIP requires identification of a valid supersession ground, weighing evidence as to whether the original award is indeed now incorrect and identification of an effective date for any changed entitlement. In MR v SSWP (PIP) [2017] UKUT 46 (AAC) (1 February 2017), Judge Wikeley describes a failure of a tribunal to do this, instead treating the case effectively as a new claim, as 'a pretty sorry tale'.

Summary

In seeking a tenancy, the claimant told the landlord that she would move in with her sister. That was because the claimant would have been reliant on HB, and the landlord did not wish to let to a claimant. A tenancy was drawn up naming the sister as the sole tenant. In fact, the claimant and her child moved in, and the sister never lived in the property. To support her claim for HB, the claimant supplied to the local authority a false tenancy agreement naming her instead of her sister as the tenant. She also indicated that the monthly rent was slightly higher than it actually was, in order that any shortfall would be such that the claimant could meet in payments to her sister, who then paid the rent to the landlord. When the landlord discovered the truth, the claimant was required to leave. A recoverable overpayment was raised against the claimant on the basis that she had never been liable to pay rent. The claimant appealed, arguing that she was liable.

The First-tier Tribunal accepted that the claimant acted 'without fraudulent intent' but rejected her appeal, concluding that the tenancy agreement was between the landlord and the claimant's sister. It considered whether the arrangements between the claimant and her sister formed a sublet between them (and therefore a liability for the claimant) but concluded there was no legal liability between them.

Judge Hemingway allowed the claimant's further appeal and remitted the case to a fresh tribunal. The tribunal had erred in failing to consider whether the claimant might be treated as liable for rent under regulation 8(1)(c)(iii) of the Housing Benefit Regulations 2006, No.213 (paragraph 20). That provides that a person may be treated as liable where s/he must make payments if s/he is to continue to live in the home because the liable person is not paying, and either s/he was formerly a partner or it is otherwise 'reasonable' to treat her/him as liable. The judge held that here 'reasonable' meant 'reasonable in all the circumstances and in light of the overall purpose of the housing benefit scheme'. Although dishonesty was a factor which may have relevance to the question, it should not necessarily lead to a conclusion against the claimant. In the present case, relevant factors also include the tribunal's findings that the claimant had not acted with fraudulent intent, was on a low income, may well have been entitled to rent a flat for herself and her son and claim HB, and felt driven to act as she did by landlords' reluctance to let to people dependent on HB (paragraph 21).

Comment from CPAG

This decision does not question the basic position that dishonesty can result in recoverable overpayment and prosecution for fraud. Even in the present case, the judge did not hold that the claimant should have been treated as liable. However, it does clarify that the 'reasonableness' test at regulation 8 should involve consideration of alt relevant factors, including why claimants and those assisting them acted as they did.

Summary

The claimant had learning difficulties and was profoundly deaf and partially sighted. The First-tier Tribunal rejected his argument that he was entitled to the high rate of the mobility component on the basis of the so-called 'blind/deaf' test. The tribunal did not consider him to meet the requirement of being 100 per cent disabled resulting from his loss of vision. That test required that he was 'unable to perform any work for which eyesight is essential', and the tribunal considered that was not met, as he was able to perform activities such as identifying an image on a computer screen and reading large print.

Judge Wright allowed the claimant's further appeal and remitted the case to a fresh tribunal. The tribunal had erred in considering individual job activities for which eyesight is essential, and not whether the claimant could carry out particular paid work for which eyesight was essential (paragraph 77). In so holding, the judge considered the application of the 'blind/deaf' test at regulation 12(2)(a) of the Social Security (Disability Living Allowance) Regulations 1991, No.2890. That includes a requirement that the claimant 'is blind only where the degree of disablement resulting from the loss of vision amounts to 100 per cent'. There was no dispute that R(DLA) 3/95 was, and remains, good law in holding that meant requiring loss of sight so as to render the claimant 'unable to perform any work for which eyesight is essential' (paragraph 19).

The test was a 'functional' one as to whether there is any work for which eyesight is essential that the sight-impaired claimant can do, and that in that assessment the 'work' in question was 'an occupation in the sense of a job of work and not instances of individual work tasks' (paragraph 41). Also, the test for being 'blind' under this test was to be applied simply on its own wording, and was not determined by objective measurement of visual acuity and visual fields under a Snellen's test (as used by the Department of Health in certifying severe visual impairment, and adopted by DWP in its guidance) (paragraph 57). On this point, the tribunal had not erred in law in not using a test of visual acuity of 6/19 as being determinative (paragraph 76). Similarly, evidence from a consultant ophthalmologist as to whether a claimant has a certificate of 'severe sight impairment' or just 'sight impairment' may be relevant evidence in deciding whether a claimant is unable to do any work for which eyesight is essential, but was not necessarily decisive (paragraph 42).

Summary

This decision of the Court of Justice of the European Union (EUECJ) concerns a claimant's ability to 'export' an award of the care component of disability living allowance (DLA) to another EU member state under the old EC Regulation 1408/71. It is, therefore, about this issue before the replacement of 1408/71 with the current EC Regulation 883/04 in May 2010. It arises from Secretary of State appeals against the decision of the Upper Tribunal in SSWP v LT (DLA) [2012] UKUT 282 (AAC) (Bulletin 230, p12) and the subsequent Court of Appeal decision, and reference to the EUECJ from the UK Supreme Court.

The EUECJ essentially upheld the original finding of the Upper Tribunal, in that it held that DLA care component was a 'sickness benefit' for the purposes of EC Regulation 1408/71, and was therefore exportable to another member state under Article 22 of the Regulation. The claimant (who has since died) had worked in the UK and paid national insurance contributions towards (among other things) a retirement pension, although had not worked since moving to Spain. The DWP had removed entitlement from the date of the move to Spain.

There was nothing, held the court, in Article 13(2)(f) of the Regulation to preclude the legislation of the original member state ceasing to apply to the claimant. It was for the national legislation of the member state to provide when its legislation ceased to apply (paragraph 64). However, the claimant had paid contributions and was to be regarded as an 'employed or self-employed person' even though she was not working before moving to Spain, and as such came within the protection of Article 22(1 )(b). That meant the national legislation could not make DLA care component dependent on residence and presence in the member state (paragraph 93). The claimant therefore retained her right to receive the care component of DLA (as a sickness benefit) in another member state.

Comment from CPAG

This decision is closely focused on provisions in the old EC Regulation 1408/71 , and is not straightforwardly applicable to the provisions in the current EC Regulation 883/04. However, there should be no doubt that care component of DLA remains a 'sickness benefit'.

Summary

In this decision, a request for judicial review of changes in 2020 to the rules on which a disabled students could qualify for universal credit (UC) was rejected by the High Court. The claimant was a disabled student, entitled to personal independence payment. In October 2020, after starting his university course, he applied for UC. That was refused on the basis that he was in full-time education. Crucially, he could not satisfy the exemption (provided for in regulation 14(1)(b) of the Universal Credit Regulations 2013 No.376) that allows some disabled students to qualify. That was because he did not satisfy the requirement there, as created by amendment regulations from 5 August 2020 (‘the 2020 Regulations’), to also have been assessed as having limited capability for work at the time of his application for UC. It was common ground that before the amendment the claimant could have qualified, in that the assessment of limited capability for work could have been made subsequent to the claim for UC.

The claimant argued that the amendment made to regulation 14(1)(b) by the 2020 Regulations was unlawful for any of four reasons: first, that it was unlawful to make the amendment without prior consultation; second, that the decision to make the amendment was irrational as the change made by the 2020 Regulations did not achieve the Secretary of State’s purpose; third, that the amendment to regulation 14(1)(b) was unlawful discrimination in breach of Article 14 of the European Convention on Human Rights; and fourth, that the Secretary of State failed to comply with her obligations under section 149 of the Equality Act 2010 (‘the public sector equality duty’).

Mr Justice Swift rejected all of those arguments. He accepted the Secretary of State’s argument that her intention had always been that regulation 14(1)(b) should provide an exception to the requirement not to be receiving education only for those who, before making a claim for UC, had already been assessed as having limited capability for work, and the amendment was a clarification of that. Hence there was no unlawful failure to consult, as ‘the policy the amendment the 2020 Regulations pursued had already been the subject of consideration within her department and been determined to be appropriate’ (paragraph 22). The amendment was not irrational. A previous action for judicial review (the Kauser litigation) had prompted the Secretary of State to amend the rules and, said the judge, ‘the 2020 Regulations were consistent with the Secretary of State’s intention that for this class of applicant a claim for universal credit should not itself be the event triggering the capability for work assessment’ (paragraph 29). The judge also held that the amendment did not breach Article 14. That was partly because of the (somewhat unusual) finding that the claimant did not have an ‘other status’ for the purpose of the Article: the judge considered that the claimant’s alleged ‘status’, that of a disabled student who had not been assessed as having limited capability for work, was really a restatement of the alleged discrimination rather than actually being a status. But the judge also held that even if that were wrong, the change was justified as being ‘for sound reason’, as evidenced by the Secretary of State (paragraph 34). Finally, there was no breach of the public sector equality duty: ‘In this case it was sufficient for the Secretary of State to identify the sources of income and support that would be available to disabled students once the 2020 Regulations were made. This addressed the core consequences of the amendment to regulation 14’ (paragraph 40).

Comment from CPAG

As noted in the decision, more recently, the Universal Credit (Exceptions to the Requirement not to be receiving Education) (Amendment) Regulations 2021 No.1224 further amended regulation 14(1)(b). Now, regulation 14(1)(b) limits the exception for disabled student to those who have been determined to have limited capability for work and work-related activity before the date on which s/he starts receiving education. The present decision obviously makes any challenge to that change more difficult. See also the article in Bulletin 287, p7.