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Summary

The claimant had an accident at work and, just over two months later, claimed personal independence payment (PIP). He was awarded the standard rate of the daily living component. Following mandatory reconsideration, the claimant appealed. The First-tier Tribunal adjourned its in-person hearing twice, on the second occasion notifying the claimant that ‘...at your appeal hearing you may lose this benefit or it might be increased or stay the same’. The claimant failed to attend the third hearing, which this time went ahead. The tribunal removed the award on the basis that, at the time of the claim, the claimant did not satisfy the ‘required period’ condition to have had the requisite disabilities for three months. 

Judge Wikeley allowed the claimant’s further appeal and remitted the case to a fresh tribunal. On the entitlement issue, the tribunal had erred by failing to have regard to the provision for an advance claim and of PIP at regulation 33 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013 (SI No.380). As noted in EB v Secretary of State for Work and Pensions (PIP) [2017] UKUT 311 (AAC), that provided that a claimant may qualify for an advance award by satisfying the three-month period after the date on which the entitlement decision was made. 

The tribunal also erred by failing to give the claimant an adequate warning that it intended to reduce the award already made. The Secretary of State submitted that, although the tribunal had notified the claimant of the potential for an adverse decision, it did not correctly inform the claimant of its intention to disallow the award. The Secretary of State cited CPIP/3480/2016, which held in that case that at ‘...no point was the appellant made aware of the specific concerns of the tribunal...so as to enable him to prepare his case...’ (cited at paragraph 17 to the present decision). Judge Wikeley agreed. 

Comment from CPAG

This decision is further authority of the general need for the tribunal to give a specific warning of an intention actually to reduce the award (or otherwise make a more adverse decision) in that particular case. For similar previous authority, see BTC v SSWP [2015] UKUT 155 (AAC), RC v SSWP [2017] UKUT 139 (AAC), and LJ v SSWP (PIP) [2017] UKUT 455 (AAC).

Summary

The claimant was someone with limited capability for work-related activity (LCWRA) under the work capability assessment (WCA) and also a disability rights campaigner with a particular interest in social security rights. She argued that, in the 2023 consultation on reform of the WCA, the (then) Secretary of State for Work and Pensions had: (1) failed adequately to explain what the proposals on WCA reform actually were; (2) failed to explain the alleged true rationale for the proposals; (3) failed to provide adequate information about the impact of the proposals; and (4) failed to provide sufficient time for consultees to respond. 

In the High Court, Mr Justice Calver granted the declaration that the consultation was unlawful. He agreed (in essence) with the claimant’s arguments in (1), (2) and (4) and considered that the claimant had ‘surmounted the substantial hurdle of establishing that the consultation was so unfair as to be unlawful’. In so holding, he applied the common law duty of procedural fairness in the context of a public consultation, in particular the fundamental question of whether the consultation was ‘so unfair as to be unlawful’: R (Bloomsbury Institute Ltd) v Office for Students [2020] EWCA Civ 1074, reported as [2020] ELR 653 (paragraphs 68–69). The consultation was launched on 5 September 2023. Under eight weeks were allowed for responses. The proposals were: to potentially change the ‘mobilising’ activity in the WCA and the associated descriptors; to potentially change activities regarding bowel/bladder control, coping with social engagement and getting about and associated descriptors; to potentially change the ‘substantial risk’ exceptional circumstances rule. 

The judge noted that in announcing the consultation the Secretary of State ‘made no mention at all of the fiscal/welfare savings aspect of the proposed changes to the WCA, in particular of the fact that the proposals would result in people with LCWRA status losing their current benefit payment of £390.06 (now £416.19) per month; nor of the fact that for people with LCWRA status, the proposals would replace voluntary work related activity with compulsory work related activity’ (paragraph 86). Neither did the published consultation paper, which failed to state that the proposals would compel more people to look for work and engage in work-related activity. But these effects were well known to the Secretary of State. The judge agreed with the claimant that ‘it was not made adequately clear that the legislative proposals for the affected groups were to replace voluntary work-related activity with compulsory work related activity, and to reduce the income of a large number of claimants’ (paragraph 109). Also, both the Chair of the Work and Pensions Committee and various non-governmental organisations expressed concern about the rushed nature of the consultation exercise and the lack of any published analysis of the effects of the proposals. But no extension to the consultation period was made. The judge agreed that: ‘There is a strong evidential basis for finding that less than eight weeks for a consultation concerning such significant proposals was insufficient and so unfair as to be unlawful’ (paragraph 131).

Summary

In considering the claimant’s adult disability payment (ADP) appeal, the First-tier Tribunal for Scotland (FTS) found that he scored two points in each of daily living activities 1, 4, 6 and 9; and 10 points in mobility Activity 1 (for descriptor (d)). The claimant had contended for more points in the daily living activities, including four points in each of activities 7, 9 and 10.

Social Security Scotland appealed (and was granted permission) against the decision of the First-tier Tribunal regarding the tribunal’s decision in mobility Activity 1 (planning and following journeys). In the Upper Tribunal, Lady Carmichael allowed that, holding that the tribunal erred in its approach to mobility Activity 1 by failing to construe descriptor (d) as it was construed by the Upper Tribunal in MH v SSWP [2016] UKUT 531, reported as [2018] AACR 12. The appeal was remitted to a new tribunal in relation to mobility Activity 1 only.

Lady Carmichael also considered a separate point, regarding the jurisdiction of the Upper Tribunal to consider disputes with other findings of the tribunal, raised by the claimant in his response to Social Security Scotland’s appeal. The claimant, in responding, also attempted to dispute the approach of the tribunal to daily living activities 5, 7, and 9. The claimant argued that the tribunal had erred in not awarding him sufficient points in those activities, and that he should have scored 14 points rather than the eight awarded by the tribunal. Social Security Scotland argued that the Upper Tribunal did not have jurisdiction to consider those points as they had not been the subject of a grant of permission to appeal either by the First-tier or the Upper Tribunal.

After an extensive review of authority, Lady Carmichael agreed, settling the question by concentrating on the specific statutory requirements for the Upper Tribunal for Scotland. Under section 46(3) of the Tribunals (Scotland) Act 2014, an appeal to the Upper Tribunal requires the permission of the Firsttier Tribunal, and only if that is refused can permission be granted by the Upper Tribunal. Construing section 46, Lady Carmichael held: ‘The appellant in this case seeks to challenge the approach of the FTS to daily living activities 5, 7 and 9 in response to an appeal directed at the FTS’s treatment of mobility Activity 1. He requires permission to do so. He does not have that permission. It follows that I have no jurisdiction to adjudicate on his challenges to the treatment of daily living activities 5, 7 and 9’ (paragraph 38).

Further, ‘In the context of a claim for ADP, if the respondent seeks to do anything other than preserve the decision of the FTS in the terms in which it is made, then the respondent requires to seek permission to appeal. Any more involved analysis as to outcome and benefit is likely to be unworkable’ (paragraph 45).

Comment from CPAG

As the judge also observes that there may be no reason for a claimant to appeal against a tribunal’s decision unless he finds that Social Security Scotland has been given permission to appeal, that may result in late applications for permission to appeal where Social Security Scotland is given permission to appeal.

Summary

This decision of the Court of Appeal overturns the decision of the Northern Ireland Chief Commissioner in AS v HMRC (CB) [2013] NICom 15 (25 March 2013). The effect is that the right to reside test for child benefit is considered lawful.

The claimant was an AS national. At the time of her claim for child benefit she was not an 'authorised worker' and her claim was refused on the basis that she did not have the right to reside. The Chief Commissioner held that she was entitled as the right to reside test as it applied to child benefit was unlawful. That was because he considered it directly discriminatory on grounds of nationality, or if it was instead indirectly discriminatory, it was only justified if the claimant was held to satisfy the test having achieved a sufficient degree of 'economic or social integration' - ie, as an alternative to the standard right to reside categories.

The Court of Appeal held that both of the Chief Commissioner's findings were erroneous. There was no direct discrimination on grounds of nationality, the right to reside test was in fact part of a 'cumulative' approach in deciding whether the claimant was for child benefit purposes 'ordinarily resident' in the UK, and taking the test as a whole it was clear that may be complied with by both UK nationals and non-UK nationals (and so not directly discriminatory). The 'ordinary residence' test was in that sense not different in principle to the tests considered by the European Court of Justice in Bressol v Gouvernment de la Communatute Francaise [2010] 3 CMLR 559 (regarding access to free education in Belgium) and the Supreme Court in Patmalniece v Secretary of State for Work and Pensions [2011] 1 WLR 783 (regarding the right to reside test as part of the habitual residence test for pension credit). In the present case, the Court considered that it must follow the 'clear decisions' of both courts and hold that the right to reside test must be considered as part of a cumulative ordinary residence test, and therefore not direct discrimination on grounds of nationality (paragraphs 23-27).

Regarding justification for indirect discrimination, the Chief Commissioner had focused on what he considered to be a 'concession' made on behalf of the Secretary of State in Patmalniece, to the effect that a sufficient degree of social and economic integration could in itself be a source of a right to reside, rather than a right to reside being an indication that the claimant had indeed achieved such integration. But the court considered that was based on a misunderstanding -of the relevant passage in Patmalniece. It was the right to reside test which indicated that a sufficient degree of integration had been achieved; the question was not whether an individual should be able to establish 'some undefined degree of economic and/or social integration as an exception to having to comply with the 'right to reside' requirement ... '. Therefore, the correct position, established in Patmalniece, was that the right to reside test was justified as a measure of determining sufficient integration (paragraphs 28-30).

Summary

The claimants were all parents with shared care of their children, having separated from their partners. The children alternated between living with each parent, on a roughly equal basis. The claimants were subject to the 'bedroom tax' reduction in their eligible rent. All were in receipt of discretionary housing payments (DHPs) although it was not clear they would continue in all cases. The claimants argued that the application of the bedroom tax to them was unlawful as: (1) it breached Article 8 (right to family life) of the European Convention on Human Rights (ECHR); (2) unlawful discrimination against separated parents under Article 14 ECHR read with Article 8; (3) irrationality, under public law principles.

In the High Court, Mr Justice Males dismissed the claimant's claim for judicial review. The 'short answer' to the claimants' arguments was that the payment of DHPs to the claimants 'completely compensated' for their reduced housing benefit, so that 'none of the claimants has suffered any interference with their family life capable of amounting to a breach of article 8' (paragraph 30).

But given that it was possible that payment of DHPs might not continue to the claimants, the judge went on to consider the claimants' argument in the context of DHPs not being paid. He was clear that the withdrawal of DHPs in these cases would mean that the claimants could not continue to live in their current homes, and that their children would no longer be able to live with them on a regular basis (paragraph 36). Also, Article 8 was engaged (paragraph 39). However, there was no unlawful interference with the claimant's right to family life. The judge referred to the decision of the Court of Appeal (regarding the benefit cap, but involving a similar argument regarding Article 8) in R (SG and others) (previously JS and others) v Secretary of State for Work and Pensions [2014] EWCA civ 156. There it was held that in was only in truly exceptional cases that Article 8 would impose a duty to provide housing and benefits. Parliament had been alive to the impact of the bedroom tax on separated parents with shared care, and the judge concluded that even if the bedroom tax resulted in the parents having to move to a smaller property where their children could not live with them, that would not in itself be a breach of Article 8 (paragraphs 43-51).

Regarding the other arguments, although separated parents with shared care probably did constitute an 'other status' with the meaning of Article 14, it was common ground that any discrimination was justified, for the same reasons as why Article 8 was not breached (paragraphs 60-61). Regarding irrationality, it was accepted that if the claims under ECHR failed, the argument for irrationality was unlikely to succeed, and the judge confirmed that the policy objectives and regulations regarding the benefit cap were not irrational as that term is used in public law (paragraph 62).

Summary

The claimant was aged over 80 when he claimed a Category D retirement pension in 2009. On the facts of his case, in order to satisfy the past presence test at regulation 10(a) of the Social Security (Widow’s Benefit and Retirement Pensions) Regulations 1979, requiring at least 10 years’ residence in Great Britain out of the last 20, it was required that his residence in Gibraltar (from 2003) be taken into account. The Upper Tribunal in SSWP v JG (RP) [2013] UKUT 300 (AAC) had held that it could be, as although Gibraltar was not part of Great Britain, reciprocal arrangements had the effect that residence in Gibraltar counted as residence in Great Britain.

The Court of Appeal unanimously disagreed with that, and held that on the facts the claimant’s residence in Gibraltar did not otherwise fall to be taken into account as residence in Great Britain, with the result that he failed the past presence test at regulation 10(a). Giving the lead decision, Lord Justice McCombe held that the reciprocal agreement only provided that a person shall have the same rights and liabilities in social security as he would have if the UK and Gibraltar had been separate states; it did not deem a person resident in Gibraltar to be resident in the UK (paragraph 33). Regarding the claimant’s rights, Article 45 of EC Regulation 1408/71 (which was in force at the relevant time, now replaced by EC Regulation 883/04), had the effect here that periods of residence ‘completed under the legislation of any other Member State…as an employed or self-employed person’ must be taken into account. But on the facts of the present case, the claimant had completed no relevant period of residence in Gibraltar as an employed or self-employed person. He had made no contributions to Gibraltar’s contributory insurance scheme. Therefore, there was no basis for taking the residence in Gibraltar into account (paragraphs 31–35).

The Court also rejected the claimant’s argument that the past presence test must be disapplied as in breach of European law, and instead a test of whether he had a ‘genuine link’ to the UK applied instead – a test which he would pass. The claimant relied on the decision of the European Court of Justice in Stewart v Secretary of State (EUECJ), Case C-503/09 (21 July 2011). It was accepted (and not questioned by the Court) that the requirement at regulation 10(b) that the claimant is ordinarily resident in Great Britain on his 80th birthday or on the date of claim fell foul of the decision in Stewart, and a ‘genuine link’ test applied there instead (paragraph 28). But regarding the past presence test for a Category B pension at regulation 10(a), the Court held ‘it is only in cases where the residence provisions are not permissible that it becomes necessary to examine whether the alternative qualifying criterion (of “genuine link” to the Member State concerned) is satisfied’. In the present case, however, Article 45 of EC 1408/71 allowed periods of residence or insurance as an employed or self-employed person to be taken into account, and therefore the past presence test was permitted (paragraphs 28–30).

Summary

In this decision, the Supreme Court dismissed an appeal against the decision of the Court of Appeal (R (SG and others (previously JS and others)) v Secretary of State for Work and Pensions [2014] EWCA Civ 156). The appeal was based on arguments that the benefit cap breaches discrimination law in the European Convention on Human Rights (ECHR). The result is that the benefit cap remains lawful. However, judges in the court also considered that the cap nevertheless fails to comply with the UN Convention on the Rights of the Child (UNCRC).

The argument made for the claimants was that the benefit cap unlawfully discriminated against them as women who were lone parents and victims of domestic violence. Specifically, as women, especially those with larger families, were more likely to be subject to the cap and yet also find it more difficult to move into work so as to escape the cap, it was argued that the cap was in breach of Article 14 of the ECHR (prohibition of discrimination), read together with Article 1 of Protocol 1 (right to possessions). It was also argued that in deciding whether there was unlawful discrimination here, it was required to take account of the position of the children of lone parents and, in particular, the requirement in Article 3(1) of the UNCRC to treat the ‘best interests of the child’ as a ‘primary consideration’.

The Court held by a 3:2 majority (Lords Reed, Hughes and Carnwath in the majority) that the cap did not unlawfully discriminate against women. Giving the lead judgement, Lord Reed said that the discrimination here was indirect discrimination, and (consistent with previous authority) that the test for deciding whether that was unlawful was whether it was ‘manifestly without reasonable foundation’ (paragraph 11). Lord Reed said that the government’s stated policy aims in introducing the cap were legitimate, and giving due weight to the assessment of the relevant law in parliament, was not persuaded that the rules breached Article 14, despite the fact that they did affect a greater number of women than men (paragraph 96). Regarding Article 3(1) of the UNCRC, as an unincorporated international treaty, the UNCRC was not part of UK law.

Although it was true that the UNCRC had in European caselaw been taken into account in considering human rights arguments, that did not apply to the present context which was about alleged discrimination between men and women, and the judge considered that separable from the question of children’s rights (paragraphs 78–89).

In dissenting judgements, Lady Hale and Lord Kerr both considered that the cap was unlawfully in breach of Article 14 read with Article 1 of Protocol 1 – ie, as unlawful discrimination against women. Both considered that the international obligations about the rights of the child under the UNCRC should inform the judgement of whether indirect discrimination was justified. Lady Hale said that she agreed with both Lord Carnwath and Lord Kerr in considering that the best interests of children were not treated as a primary consideration in the benefit cap rules, and said ‘it cannot possibly be in the best interests of children affected by the cap to deprive them of the means to deprive them of the means to provide them with adequate food, clothing, warmth and housing, the basic necessities of life’ (paragraphs 225–56). However, although Lord Carnwath was of the view that ‘the Secretary of State has failed to show how the regulations are compatible with his obligation to treat the best interests of children as a primary consideration’ (paragraph 128), he also agreed ‘with considerable reluctance’ that, as the discrimination in this case was against the mother of the child rather than the child, the UNCRC did not have a role to play in deciding whether that was unlawful (paragraph 129). His judgement was, therefore, to dismiss the appeal. However, he expressed the hope that the government would consider the UNCRC in its review of the cap (paragraph 133).

See also the article in our Welfare Rights Bulletin 245 p5.

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.