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Decision in brief

First-tier Tribunal erred in its understanding of the decision of the EUECJ (European Court of Justice) in Baumbast - that was about the proportionality of relying on the precise requirements of European Union law on right to reside in a case where the claimant (as described in SSWP v PS-B [2016] UKUT 5) 1 (AAC)) 'for all practical purposes satisfied the conditions for an accepted category of right to reside' - claimant in the present case did not come anywhere near that- similarly, the Supreme Court in Mirga held that, where a claimant was not in a right to reside category, proportionality could not be invoked to entitle that person to a right to reside, save perhaps in extreme circumstances

Decision in brief

Genuine prospect of work - fact that claimant obtained a job six weeks after the decision under appeal was evidence of a genuine prospect of work at that time - tribunal erred in holding that the gaining of a job after the decision under appeal could not be taken into account - although changes of circumstance after the date of the decision under appeal cannot themselves be taken into account, there is no bar on drawing inferences from them about the circumstances obtaining when, or before the decision was made

Decision in brief

Ability to use telephone for text functions is irrelevant here -tribunal erred in expecting claimant to avoid noisy places - Secretary of State policy of not taking ability to lip read into account not accepted as applying in all cases - regarding Activity 9, engaging with 'other people' includes with people not known to the claimant- but the 'social support' in 9(c) needs to be given at the time of the social engagement (not in advance}, and is materially different in nature from 'prompting', being 'more personal and intimate'

Comment from CPAG

The judge noted that regarding the meaning of 'social support' further appeals are current to the Court of Session against the decision in MMcK v SSWP [2016] UKUT 191 (AAC), and to the Court of Appeal against the decisions in both AH v SSWP [2016] UKUT 276 (AAC) and GH v SSWP (PIP) CPIP/65/2016.

Decision in brief

Appeal is not a limited capability for work appeal and therefore is dealt with by a judge sitting alone - CSE/272/2016 approved

Decision in brief

Use of catheter - specific provision for management of incontinence to include self-catheterisation for purposes of Activity 5 indicates that catheterisation should not also count as 'therapy' for the purposes of Activity 3 (managing therapy or monitoring a health condition)

Decision in brief

Court of Justice of the European Union (CJEU) decision in Brey requires a personalised assessment of whether claimant would be a burden on the social assistance system - subsequent decisions of CJEU in Dano, Alimanovic, Garcia-Neto and Mirga do not alter that, as they are about different rights to reside, and in particular do not concern claimants with comprehensive sickness insurance and a previous record of self-sufficiency

Decision in brief

Tribunal did not err in failing to treat them as a single 12-month period and in not considering the claimant's entitlement in that period as a whole - the 50 per cent of the time rule, by contrast, applies to descriptors rather than component or rate, and applies to the 12-month 'required period' as a whole

Comment from CPAG

Similar reasoning, though without reference to this decision, applied in DO v SSWP [2017] UKUT 115 (AAC) (3 March 2017) (file number CPIP/1673/2015). There, a cancer patient satisfied the 50 per cent requirement for descriptors during the 'required period' but, following surgery, did not satisfy the separate 'required period condition' as he did not require sufficient assistance throughout the nine months after his claim.

Decision in brief

'Living in' the CTA not defined and words must be given natural meaning - not a requirement to have actually been in the CTA throughout that period - temporary absence can be taken into account-factors like reasons for absence, previous residence and maintenance of accommodation ln the CTS while abroad all relevant- claimant who was clearly habitually resident and was then temporarily absent for two months to care for sick relative not excluded by the test - but the requirement is not contrary to European law

Note from CPAG

This is a decision of the Northern Ireland Commissioners and therefore not formally binding in Great Britain. However, it is of persuasive authority and has been highlighted by the Upper Tribunal.

Summary

The claimant was awarded personal independence payment (PIP) at the enhanced rate of the daily living component. The claimant's appeal challenged his points score in both the daily living and mobility components, even though he could not actually achieve a higher award in the former. The claimant did not attend, and the tribunal adjourned. The adjournment notice said that the tribunal could maintain the existing award, increase it or reduce or remove it, that the claimant may wish to take advice and had the option of withdrawing his appeal. The claimant maintained the appeal and said he wished for a hearing on the papers. The First-tier Tribunal proceeded, and reduced the daily living component from the enhanced rate to the standard rate.

Judge Bano allowed the claimant's further appeal and substituted a decision that the claimant was entitled to PIP at the enhanced rate of the daily living component. On the facts, the tribunal had erred in failing to reconsider whether to adjourn the appeal so as to allow the claimant to attend an oral hearing (paragraph 12-15). ln R(IB) 2/04, a Tribunal of Commissioners referred to a need for a Claimant to have 'sufficient notice' of a tribunal's intention to consider making an adverse decision. The adjournment notice may have been sufficient notice of the tribunal's general powers but 'at no point was the claimant made aware of the specific concerns of the tribunal' that only clearly emerged at the hearing on the papers (paragraph 12).

In the claimant's absence, the practical difficulties of proceeding might have led the tribunal to adopt the suggestion in R(B) 2/04 that it should be left to the Secretary of State whether to supersede so as to reduce the award (paragraph 13). But assuming that the tribunal's real doubts about the award only emerged in the course of the hearing, it was under a continuing duty to keep the matter of adjournmentto.allow.an oral hearing under review (paragraph 14). Although the claimant had requested a hearing on the papers, it would have been clear that the appeal against the points for the daily living component was misconceived, and when the tribunal formed the view that he was at risk of losing the award, it came under a renewed duty to consider an adjournment so that the risk could be fully explained to the claimant (paragraph 15).

Comment from CPAG

The facts of this case may be contrasted with those in MW v SSWP (PIP) [2016] UKUT 540 (AAC), in which a tribunal did not err in failing to adjourn where the claimant had a representative who consented to proceeding and did not request an adjournment. Even so, the present decision clearly indicates that a statement of the tribunal's powers in general terms is not sufficient to provide 'sufficient notice' of an intention to consider an adverse decision. It Is explicit that in the absence of such notice, there is a continuing duty to consider an adjournment.

Summary

The claimant lived in a UC 'live service' area - ie, one in which gateway conditions apply. When he attempted to claim jobseeker's allowance (JSA). he was redirected to claim UC instead. In answer to the question in the online claim process, 'Are you expecting take- home pay of £330 or more in the next month?', the claimant answered 'yes', because he simply did not know whether he would be paid that amount and thought that was the safest answer. The consequence was that the computer system told him he could not claim UC. Having attempted to claim JSA again, he was instructed to claim UC again and this time answer 'no' to the question about pay. The claim was successful, but was not backdated to the earlier attempt. The First-tier Tribunal dismissed the claimant's appeal.

Judge Rowland dismissed the claimant's further appeal. It was a 'gateway condition' of being able to claim UC that a single claimant must declare that in the next month her/his earned income is not expected to exceed £330; the on line question was clearly intended to allow the claimant to make that declaration by answering 'no' (paragraphs 14-15). It was true that the online question was apt to confuse someone who, like the claimant, simply did not know what her/his expected income was, and the Secretary of State may wish to consider amending either the question or the gateway condition, or both (paragraphs 25-29).

However, that did not permit backdating of the claim. The relevant rule was at regulation 26 of the Universal Credit, Personal Independence Payment, Jobseeker's Allowance and Employment and Support Allowance (Claims and Payments} Regulations 2013, No.380. The part of that rule potentially in issue was the provision at subparagraph (3)(d), allowing backdating of up to a month where the claimant was unable to claim 'because the official computer system was inoperative'. In this case, the computer system worked property on the date the claimant first attempted to claim and so cannot be regarded as having been inoperative. 'Whatever defects there may have been in the claim form,' said the judge, answering 'yes' to the question about expected earned income 'was clearly not a declaration sufficient to satisfy the gateway condition and so the claimant was not eligible for universal credit' (paragraph 37).

Comment from CPAG

Clearly, this is a harsh outcome for the claimant. It reflects not only the complexity created by the gateway conditions in live service areas, but also the very limited circumstances in which a UC claim can be backdated. The judge pointed out that, unlike in some other benefits, there is no UC provision allowing an expressed intention to claim to be sufficient.

Summary

The claimant was a single parent with three children. Her working tax credit included childcare costs. Following notification by her of a reduction in childcare costs, HMRC asked for further information. Before the claimant responded (including receipts from her childcare providers), HMRC reduced entitlement, and in a final decision also refused to accept evidence about some of the claimant's childcare costs, without being specific as to why. Only after the claimant had appealed did HMRC indicate, in a response to the appeal, that it considered bank statement evidence showed that some of the childcare costs were not genuine. The First-tier Tribunal dismissed the claimant's appeal, holding on the papers that the HMRC decision was 'a reasonable one for HMRC to have made'.

Judge Hemingway allowed the claimant's appeal and remitted the case to a fresh tribunal. The tribunal had erred in not appreciating that it was making its own decision on the basis of the evidence, rather than merely reviewing the HMRC and the 'reasonableness' of the decision it made (paragraphs 18-19). Further, the tribunal was not merely required to 'rubber stamp' the claimant's preference for an appeal on the papers; given that HMRC raised issues about the claimant's credibility, in particular after the appeal had already been lodged and a request for a hearing on the papers made, the tribunal erred in failing to explain why it was not adjourning for an oral hearing (paragraph 20). Further still, the tribunal's very brief reasoning as to why it found the point about conclusions from bank statements convincing, when the claimant had already sent relevant receipts to HMRC, was 'simply inadequate' (paragraph 21 ).

The judge commented on the 'inadequacy of the appeal response prepared by Her Majesty's Revenue and Customs' to the First- tier Tribunal, and additional concerns 'regarding a failure on the part of HMRC to put salient key aspects of its case to the claimant prior to the production of the appeal response' (paragraph 1). 'Perhaps,' said the judge, 'HMRC might wish to aim to do better in future.' As for the tribunal, it might well have thought an oral hearing appropriate given the late taking of points of potential importance.

Comment from CPAG

Given the recent history of inadequate HMRC responses to First-tier Tribunals (see for example AK v HMRC (TC) [2016] UKUT 98 (AAC) and DG v HMRC and EG (TC) [2016] UKUT 505 (AAC)), whether HMRC really does wish to aim to do better may be considered at best unclear. In any case, First- tier Tribunals need to be alive to the possibility of severe inadequacies in HMRC responses, and act accordingly.

Summary

The claimant was married but, although not divorced, had been separated from her husband for four to five years. HMRC decided that she was not entitled to tax credits as a single person, as she remained part of a couple. The First-tier Tribunal dismissed her appeal, holding that the claimant's separation was not (as required by the relevant law, at section 5(5A)(a)(ii) of the Tax Credits Act 2002) likely to be permanent.

The First-tier Tribunal cited that the claimant maintained a joint bank account with her husband (he had poor budgeting skills and there was a joint mortgage), that her husband continued to help her with her health problems, occasionally sleeping on the sofa, that he used the claimant's address for post (he had not found his own permanent accommodation), and there had been no matrimonial proceedings.

Judge Jacobs allowed the claimant's appeal and substituted a decision she was entitled to tax credits as a single person. There was no doubt that the claimant was separated from her husband. But the tribunal had erred in not finding that the separation was likely to be permanent, and in the conclusions they drew from the facts of the claimant's case. It would be wrong to reason that because a couple remain married, their separation cannot be permanent (paragraph 11). Although a couple's continuing involvement can indicate that they are not actually separated, it is wrong to conclude that continuing involvement is necessarily an indication that the separation is not likely to be permanent: 'the model of divorced couple as warring combatants is not universal' (paragraph 13). In this case, the parties had been separated for four or five years, and there was no reason to doubt their explanation for why they had arranged their lives as they had (paragraph 14).