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Summary

The claimant was prelingually deaf and communicated by British Sign Language (BSL). When a DWP compliance officer visited the claimant at home to ask her about evidence regarding her savings, her parents were present and assisted her, but there was no signer present. The claimant, when pressed, provided bank statements regarding all her savings accounts, which showed that her savings were above the capital limit. The overpayment was held to be recoverable. The First-tier Tribunal rejected the claimant’s argument that as no BSL signer had been present, the department was in breach of its duties under the Equality Act 2010 and the claimant put at a disadvantage, so that the evidence gathered at the interview was inadmissible.

Judge Wikeley rejected the claimant’s further appeal. In the circumstances, which included the presence of the claimant’s parents at the interview, that there was no challenge to the accuracy of the claimant’s signed statement and the bank statements, that the DWP already had evidence from its generalised matching service and that the DWP could have in any case applied to the tribunal for a direction that the statements be produced, the tribunal was ‘plainly entitled to come to the view that the evidence in question was properly admissible’ (paragraphs 25–30). It was the case that under section 20 of the Equality Act the department was under a duty to make reasonable adjustments, which could include provision of a BSL interpreter (paragraph 24). Evidence could be excluded under the overriding objective (at rule 15 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, No.2685) of dealing with cases fairly and justly (paragraph 28). But even if there had been a breach of the Act (the judge did not say that there had been), it remained that, on the facts, the tribunal had been entitled to consider the evidence admissible (paragraphs 28–32).

The judge also rejected an argument (based on the decision in CSIS/45/1990) that the decision maker and tribunal had erred in only revising (ie, regarding the overpayment) only one decision where there had in fact been a number of decisions in the history of the award. CSIS/45/1990 was made under a previous and now repealed statutory regime. The current statutory test ‘does not require the identification of each and every preceding decision’ (paragraph 36).

Comment from CPAG

This decision illustrates that, while a potential breach of the Equality Act in evidence gathering might be the basis for, for example, complaints and requests for compensation, it does not necessarily follow that the evidence cannot be considered by a tribunal.

Summary

The claimant TD was a single parent with a disabled child, entitled to income support (IS), carer's allowance and child tax credit. The DWP wrongly stopped her IS and advised her to claim UC. She claimed UC and successfully challenged the stopping of her IS, but (due to transitional rules) was unable to make a new claim for IS. She was worse off on UC by £136.99 per month, due to the absence of equivalent amounts for disabled children in UC compared to IS and no transitional protection. In the case of PR, the claimant was getting income-related employment and support allowance (ESA) including the severe disability element and support component. The DWP stopped her ESA and, although she successfully challenged that, because she had claimed UC in the meantime she was also unable to start a new claim for ESA. She was worse off by £178.09 due to the absence of equivalent amounts for severely disabled persons in UC compared to income-related ESA and no transitional protection.

The claimants argued that their treatment amounted to unlawful discrimination in breach of Article 14 of the European Convention on Human Rights, read with Article 1 of the First Protocol (rights to possessions) and in the case of TD/AD, in breach of Article 8 (right to family life). They also argued that the inability of people in their position to return to legacy benefits without transitional protection in UC awards was irrational, and that the Secretary of State had failed to comply with her public sector equality duty (PSED).

Mrs Justice May rejected the claimants’ claims. Regarding unlawful discrimination, it was agreed that the relevant test was whether the treatment was ‘manifestly without reasonable foundation’ (paragraph 59). It was also accepted that a legitimate comparator ground (ie, in relation to which the claimants had suffered discrimination) was legacy benefit claimants who had not had erroneous decisions made. But the judge accepted that the discrimination there was justified (ie, not without reasonable foundation) as, in contrast to the claimants in R (TP and AR) v Secretary of State for Work and Pensions [2018] EWHC 1474, the evidence showed that proper consideration had been given to people in the claimants’ position before the rules were finalised (paragraphs 77–80). The judge doubted that the other two potential comparator groups (namely those who were to be subject in the future to ‘managed migration’ to UC, where transitional protection will apply, and disabled people) were eligible as comparator groups, but in any case any discrimination there was, for the same reason, also justified (paragraph 77). Regarding irrationality, again the justification for the alleged discrimination answered that point (paragraphs 81–82). Regarding the alleged failure to comply with the PSED, that had been rejected in TP and AR and there was no reason to hold differently here (paragraph 87).

Note

CPAG represented the claimants and is applying for permission to appeal to the Court of Appeal.

Summary

The claimant was homeless and suffered from chronic fatigue syndrome. He did not know from week to week whether he would be in hospital, staying with friends or elsewhere. He could not always travel so could not pick up mail from a job centre, and did not have a phone. He repeatedly tried to persuade the DWP to communicate with him by email. The department refused to do so for some time. Eventually the department came up with a ‘workaround’ under which his mail was initially sent to an internal address and then converted to email. The workaround was allegedly necessary because of the department’s ‘relatively antiquated IT infrastructure’ (paragraph 51). The claimant refused to accept the workaround and argued that the department was in breach of both the public sector equality duty (PSED) and the duty to make reasonable adjustments to accommodate his disability under the Equality Act 2010.

Judge Jeremy Johnson QC held that ‘as matters stand’, the DWP had offered the claimant a system of communication that (subject to effective implementation) amounted to reasonable adjustment and complied with the PSED, and therefore dismissed the claim for judicial review (paragraph 108). The department told the judge that ‘the department’s policy in relation to email as a reasonable adjustment is clear; email is made available to disabled customers who require it as a reasonable adjustment’ (paragraph 41). However, the judge also said:

‘The approach of the DWP to the claimant, and to many other disabled claimants, failed over a period of years to comply with its statutory obligations under the Equality Act 2010 (and before that the Disability Discrimination Act 1995). Those with disabilities that meant that they had difficulty communicating by post were, in many instances, unable to secure a satisfactory means of communication with the DWP. This in turn meant that some went without benefits that were essential to them’ (paragraph 107).

Decision in brief

Dutch invalidity benefit in payment – Holland competent state for payment of ‘sickness benefit’ – tribunal erred in deciding there was a difference in view about competent state between UK and Holland leading to entitlement to care component on a provisional basis – no evidence of a difference of view – no entitlement on basis of being a pensioner as neither the mobility component nor the care component of DLA is a pension.

Decision in brief

No smaller chalets available and no other caravan sites in area to move to – no violation of claimant’s rights as a gypsy traveller under the European Convention on Human Rights as council provided discretionary housing payments to mitigate in full the adverse effect of the bedroom tax on the claimant.

Comment from CPAG

The judge noted that it was not in dispute that in general terms ‘gypsy travellers’ have rights to respect for their homes and protection from unjustified discrimination under the Convention. The judge placed heavy reliance on the role of discretionary housing payments in avoiding a breach of the Convention. Had those payments not been in place, it would seem that such a breach may well have been an issue.

Decision in brief

Not possible in such a case for an appeal against the section 14 decision to lapse because a section 18 decision is purported to be made – if the three-judge panel’s comments about lapsing appeals in LS and RS v HMRC [2018] AACR 2; [2017] UKUT 257 (AAC) were intended to apply to decisions under section 14 not to award tax credit, they overlooked that no section 18 decision can be made in such a case and are not followed.

Summary

The claimant was unable to attend the hearing of her appeal, and the hearing was adjourned for what was the second time. The adjournment notice included that ‘this is a peremptory adjournment, that is the appeal must proceed when next listed'. A new hearing was arranged but on the day the claimant was again unwell and unable to attend, and arranged for a friend to telephone and ask for a postponement. That request was refused and the hearing went ahead in the claimant’s absence. The tribunal decision included that the previous adjournment was a ‘peremptory’ adjournment and it had been decided that the next hearing must proceed. The claimant requested a set-aside of the tribunal decision on the basis that she was absent from the hearing. The district tribunal judge refused to set the decision aside.

Judge Poynter held that the claimant’s further appeal against the tribunal decision should be treated as an appeal against the refusal to set the decision aside. He allowed the appeal, so as to set the decision aside, with the result that the appeal was to be reconsidered at a hearing by a fresh tribunal. The district tribunal judge’s decision to refuse to set the decision aside involved an error of law, namely the assertion that none of the grounds for a set-aside applied, whereas one did: namely that the claimant did not attend the hearing. On the facts, Judge Poynter considered that it was in the interests of justice to set the decision aside (paragraphs 6–7). Regarding that, the judge put particular emphasis on the previous, so-called ‘peremptory’ adjournment notice. The
tribunal granting the adjournment had no power to give a direction that the appeal must proceed when next listed, and the tribunal that insisted on proceeding at the subsequent hearing should not have permitted itself to be influenced by that direction (paragraph 31).

Although it is important to avoid unnecessary adjournments and First-tier Tribunals are busy, adjournment is sometimes necessary and it is the tribunal before which the appeal is listed that is best placed to consider that (paragraphs 36–37). A history of previous adjournments will often be an important factor to take into account when considering a further request, and there is no harm in a tribunal granting an adjournment saying that it is unlikely that a further adjournment will be granted. But, said the judge, ‘what a tribunal may not do is seek to bind the hands of a future tribunal’ by directing that an appeal must proceed when next listed, or by giving any other direction with a similar effect (paragraphs 38–39).

Comment from CPAG

The First-tier Tribunal appears to have been overly concerned with progressing business, resulting in an attempt to bind future proceedings that it was wrong to follow. Judge Poynter also points out that changes in circumstance can easily lead to a perfectly legitimate repeat request for an adjournment, and that the other party to the appeal may in fact be the source of the most recent request.

Summary

The claimant had originally been awarded the standard rate of the daily living component of personal independence payment (PIP), but had that removed on mandatory reconsideration, which had been requested as the claimant considered he was entitled to a higher award. At the beginning of the tribunal hearing the tribunal made an ‘offer’ to the claimant, who was represented, to reinstate the original award – ie, the standard rate of the daily living component. The claimant refused the offer. The tribunal continued with the hearing and eventually decided the claimant was not entitled to any award of PIP at all.

Judge Brunner QC allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred in giving inadequate reasons for its decision, as it did not include a clear explanation of the tribunal’s ‘change of mind’ regarding the claimant’s entitlement. It was not possible to understand from the tribunal’s reasons what new information the tribunal had heard or had taken note of during the oral proceedings which led to its change of mind (paragraph 17).

The judge also made observations on the tribunal’s sharing of its preliminary views – ie, the making of an ‘offer’ to the claimant at the outset of the hearing. These observations were ‘deliberately not prescriptive’ but instead intended to ‘set out guidance’ for tribunals (paragraph 18). In summary, the observations were: there is nothing in principle wrong with a tribunal coming to a preliminary view after looking at the papers; there is nothing in principle wrong with a tribunal sometimes sharing that view with the parties; there are obvious dangers in sharing preliminary views, in particular a claimant feeling pressured in accepting the preliminary view, and in the appearance of bias, especially where the claimant is not represented; tribunals should be cautious about sharing preliminary views; if sharing a preliminary view, the tribunal should do so in clear language which does not put pressure on the claimant; language such as ‘offer’ is not appropriate; it should be made clear that the preliminary view remains provisional until the conclusion of proceedings and that its ultimate view (ie, after taking further evidence) may be different; there is nothing in principle wrong with a tribunal changing its preliminary view; where it does change that view, it should consider whether natural justice and the overriding objective (ie, to deal with cases fairly and justly) require it to alert the parties to that before the proceedings are concluded; where made, a preliminary view should be recorded in the statement of reasons; where shared and the tribunal has subsequently reached a different view, the reasons for that change of mind should be clearly stated in the reasons.

Comment from CPAG

This decision makes clear that it is possible for a tribunal lawfully to indicate a preliminary view to the parties to the appeal – for example, with a mind to conclude the case more quickly. However, the guidance set out in the decision also indicates that tribunals should take care to avoid pressuring claimants, to make clear that the view is a provisional one which may change in the light of further evidence, and to avoid use of the word ‘offer’. Though explicitly not prescriptive, not adhering to its principles could well lead to an error of law.

Summary

The First-tier Tribunal refused the claimant’s appeal, holding that she was not entitled to personal independence payment (PIP). The tribunal had not put to the claimant that it did not consider her a credible or reliable witness in that it did not accept her evidence that she suffered from blackouts. The claimant appealed, arguing that the fact of blackouts occurring had been accepted by the decision maker and examining healthcare professional, and that the tribunal had erred in not giving her a chance to deal with the tribunal’s view.

Judge May QC refused the claimant’s further appeal. In the circumstances, the tribunal had been under no obligation to raise with the claimant the potential conclusion that she did not suffer from blackouts. The tribunal had relied on the evidence before it and assessed that. In its reasons, the tribunal explained that it could see no treatment for blackouts and no evidence of investigations into it until the matter had been raised in connection with the appeal. Judge May said was ‘apparent’ from the existing evidence that the examining healthcare professional ‘had doubts’ about the history given to him (paragraph 4). The claimant’s representative had been prepared to proceed on the existing evidence, and ‘it was not for the tribunal to cross-examine the evidence on the evidence that she gave. The task of the tribunal was to assess it’ (paragraph 7).

The judge did not accept that it was ‘incumbent on the tribunal to test the claimants evidence by cross-examining her on her credibility’ (paragraph 8). He considered that to be suggested in the commentary by Judge Jacobs in the book Tribunal Practice and Procedure, where it is suggested that a witness suspected to be lying must be given a chance to deal with that concern. The danger of such an approach is ‘that it could be argued that the tribunal is adopting the approach of an adversary rather than a dispassionate assessor of the evidence before it’. Judge May also considered that comments (also by Judge Jacobs) in CDLA/4585/1997 about it being good practice for tribunals to give claimants a chance to comment on any impressions that may have been formed as a result of observations at a hearing were not ‘directly in point’ in this case, as they concerned observations of a claimant made by the tribunal itself, which was not what had happened here.

Comment from CPAG

Arguably, a tribunal should be able to put concerns about credibility in a non- adversarial way. But a similar approach to that taken by Judge May QC is taken by Judge Poole QC in CC v SSWP (ESA) [2019] UKUT 14 (AAC) (7 January 2019) (file number CSE/266/2018). There a tribunal considered that the claimant’s tearfulness at the hearing was an affectation designed to help her win her appeal, but did not put that to her. The tribunal did not err. It is, held the judge, ‘not the job of tribunals to cross-examine claimants, or to put to them specifically all matters which do not support their appeal’. Natural justice is key, but what that requires varies according to context, and matters of credibility do not as a generality have to be put to claimants. In this case, the claimant herself had put her tearfulness in issue so could not have been taken by surprise by the tribunal considering it.

Summary

In this judicial review decision, the High Court held that draft rules providing for ‘transitional payments’ to severely disabled people who underwent ‘natural’ migration from legacy benefits to universal credit (UC) before 16 January 2019 are unlawful. The claimants had all been entitled to the severe disability premium (SDP) in their legacy benefit. When they underwent ‘natural’ migration to UC (after making a claim for that benefit), they were significantly worse off (as UC does not include such a premium and there is no transitional protection to the levels of the former legacy benefit in ‘natural’ migration).

Following rule changes from 16 January 2019, such claimants are now prevented from undergoing migration until they become subject to the ‘managed’ migration process, which does provide transitional protection. Rules still in draft form (the Universal Credit (Managed Migration Pilot and Miscellaneous Amendments) Regulations 2019) provide for ‘transitional payments’ to such claimants who naturally migrated before that date, to reflect their loss of the premium. But these payments are in the form of fixed-rate, generic payments rather than the transitional protection (covering the full difference in value between legacy benefit and UC) that will apply to claimants who undergo managed migration. In the claimants’ cases, these fixed-rate payments would be significantly less (by about £100 per month) than they would have been entitled to in transitional protection.

Mr Justice Swift accepted the claimants’ argument that the difference in their treatment compared to a severely disabled claimant who would get transitional protection under managed migration amounted to unlawful discrimination, via a breach of Article 14 read with Article 1 of Protocol 1 of the European Convention on Human Rights (ECHR). It was common ground that, here, transitional protection fell within the ‘property and possessions’ ambit of Article 1 of Protocol 1. It was also accepted that the difference between ‘natural’ migrants and ‘managed’ migrants (who since the 16 January 2019 changes were a proper comparator group) was a difference in status for the purposes of the prohibition of discrimination in Article 14 (paragraphs 42–43). Although discrimination was capable of justification if not ‘manifestly without reasonable foundation’, the judge was not satisfied that the Secretary of State had identified any reason that explains the difference in treatment between those (like the claimants) in the ‘SDP natural migrant group’ and those SDP recipients who since 16 January would not undergo natural migration (paragraph 64).Consequently, the parts of the draft rules providing for the transitional payments were quashed, and it was ‘now a matter for the Secretary of State to decide what should happen next’ (paragraphs 72–73).