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Decision in brief

Tribunal erred in law in giving inadequate reasons for why it refused to admit the claimant’s father’s video evidence, why it made the findings it did as to how much time the claimant spent in the autism unit, or why his parents watching him as he made the journey between his home and his grandparents’ home did not amount to ‘supervision’ – the tribunal also erred in finding that the claimant’s playing with his penis in public was not ‘extremely disruptive’ behaviour – the behaviour does not have to be violent to be ‘extremely disruptive’ and to regularly require intervention to prevent injury.

Decision in brief

Fact that insurance policy had ‘matured’ by the time of the death and that claimant could have claimed the money on grounds other than the person’s death irrelevant – if the money was legally due to the claimant on the person’s death, that will be deductible (PA v SSWP [2010] UKUT 157 (AAC) cited) – but it is relevant whether or not the money was actually due, claimed and paid due to the person’s death.

Decision in brief

Family member of European Economic Area (EEA) national – requires the EEA national to have exercised free movement rights – CDLA/708/2007 approved – contrary approach in JFP v Department for Social Development (DLA) [2012] NICom 267 not followed.

Decision in brief

The First-tier Tribunal is a ‘court’ for those purposes and the claimant did not have the required leave – the tribunal therefore had no jurisdiction to determine the appeal and should have struck it out – Upper Tribunal has jurisdiction to determine the claimant’s application for leave to appeal against the tribunal decision but as there should have been no such appeal, permission to appeal is refused.

Decision in brief

No agreement about level of ‘remuneration’ received for the work – the giving of donations by passers-by does not involve a common understanding as to the amount of remuneration provided to the street musician, and there is also a good argument that, for the same reason, it does not involve remuneration at all.

Decision in brief

Guidance about proper approach to this (ie, so as to take proper account of pain, distance, halts, etc) in JT v SSWP (DLA) [2013] UKUT 221 (AAC) also applies to mobility Activity 2 test in personal independence payment, even though JT was a decision about the highest rate of the mobility component of disability living allowance – although statutory tests are not identical, similarities are such that JT should apply in context of consideration of ability to walk in an airport.

Decision in brief

Claimant given a low level sanction for failure to attend a telephone appointment with job centre and so fulfil a work-related requirement, despite the fact that, on the day after not taking part, he submitted evidence from his GP that he was suffering from a stomach complaint – in refusing the claimant’s appeal, the First-tier Tribunal erred in not adequately addressing whether the claimant had been sufficiently notified of the requirement to take part in a work-focused interview and of the consequences for not doing so (JB v SSWP (UC) [2018] UKUT 360 (AAC) cited) – in addition, the tribunal erred in failing to give adequate consideration to the claimant’s health condition – on the facts, the claimant had not been properly notified and did have good reason and so no sanction was applicable.

Decision in brief

It did not matter for this purpose that at the time of the relevant decision, regulation 23(4)(b)(i) of the Child Benefit (General) Regulations 2006 referred to the Immigration (European Economic Area) Regulations 2006, when they had been replaced by Immigration (European Economic Area) Regulations 2016 (Schedule 7 to the 2016 Regulations ensured that regulation 23(4)(b)(i) was taken to refer to the 2016 Regulations).

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).