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Summary

In 2012, the claimant became aware that he would be liable to pay costs, as yet unspecified, to the developers of his apartment. In 2013, he applied for employment and support allowance (ESA). He did not disclose savings of about £50,000 in a building society account, as he had ear-marked that money for eventual repayment of the costs. In 2014, the court issued a costs certificate of around £47,700. Initially, the claimant's brother-in-law paid it as it would take the claimant time to get access to the money in the building society account. In the meantime, the DWP became aware of the money in the building society account and issued decisions that the claimant was not entitled to income-related ESA because the capital limit was exceeded, and that the benefit paid was recoverable on the basis of misrepresentation - ie, the amount of his capital.

On appeal, the First-tier Tribunal allowed the claimant's appeal, holding (in essence) that there was no overpayment because 'in his mind' the claimant regarded the capital as set aside for repayment of a debt and, therefore, was to be disregarded as capital.

Judge Wikeley set the decision aside and remade the decision to the effect that the claimant had been overpaid and the overpayment was recoverable from him because he had misrepresented his capital. The claimant 'enjoyed the sole legal and beneficial ownership' of the money in the building society account and, despite his intentions, it was 'in principle his money to do with as he wished' (paragraph 66). The claimant's misrepresentation was in the circumstances entirely innocent, but nevertheless caused the overpayment which was therefore recoverable (paragraph 67).

In closing remarks, the judge suggested that the absence of dishonesty, that the claimant might be said to have tried to act responsibly and his poor. mental health might all be factors in the purely discretionary decision as to whether actually to enforce recovery (paragraphs 68-74).

The judge dismissed the argument that the building society money should be ignored as the claimant was under a 'certain and immediate liability' to pay the court costs, an argument derived from the Court of Appeal decision in Chief Adjudication Officer v Leeves. The Leeves principle did not apply here. That was actually about the classification of income (by extension, capital) where when given by a creditor the money is already impressed with a certain obligation of immediate repayment. In the present case the money was already the claimant's capital and the repayment was due not to a creditor but to a third party. Applying Judge Mesher's comments in JH v SSWP [2009] UKUT 1 (AAC), 'the mere existence of unpaid liabilities, even if payment is due, does not affect the calculation of the amount of capital for benefit purposes' (paragraphs 50-51).

Also, the judge dismissed arguments that the money was somehow impressed with a trust or given a nil value. The claimant had received no money from his brother-in-law impressed with a trust, a trust was not created merely by what was in the claimant's mind, and there was no court order on the money in the account (paragraphs 53-57).

Summary

The claimant had been entitled to income support (IS) with consequent 'passporting' to maximum HB - ie, through being treated as having nil income and capital. In January 2011, the local authority stopped her HB on the basis that her entitlement to IS had ceased in October 2010 and raised a recoverable overpayment of HB from that point. Although it was subsequently recognised that the claimant had been awarded HB from December 2010, recovery was still sought for the October to December 2010 period and the claimant was also held to be liable for the 'bedroom tax', a gap having arisen in the claimant's HB entitlement.

The First-tier Tribunal rejected the claimant's appeal, finding that the claimant had received IS between October and December 2010 in error, as she had not been entitled to it in law, that she did not become entitled to jobseeker's allowance (JSA) until December 2010 and, in the absence of producing details of her means, she was not entitled to HB in that period.

Judge Wikeley held that the tribunal had erred in law and substituted a decision that the claimant was entitled to 'passported' HB throughout the October to December 2010 period. On the facts, it was a reasonable interpretation of DWP correspondence that she had been awarded backdated JSA in that period (following a claim by the claimant in December 2010), but arrears had been withheld in recognition that IS had already been paid in error (paragraphs 48-50). The tribunal had erred in failing sufficiently to investigate the issue of backdated entitlement to JSA and failed adequately to explain its reasoning (paragraph 36).

The judge noted that the requirement for the claimant to be 'on' a qualifying benefit required lawful entitlement to the benefit. He rejected the claimant's argument that (applying the Court of Appeal decision in R v South Ribble DC HMRB ex p Hamilton [2000] 33 HLR 102 that meant only ruling out cases of fraud (paragraph 41). But he also had reference to the decision of Judge Masher in SO v Newcastle CC (HB) [2010] UKUT 306 (AAC). That held that a DWP decision that a person was no longer entitled to IS was only effective once notified. In the present case, the local authority's argument that HB entitlement ceased as soon as the qualifying criteria were no longer met was 'far too sweeping', and inconsistent with that (paragraph 40).

However, the judge went on to distinguish the present case from the facts in SO, as in the present case, unlike in SO, it was clear that the claimant knew of the termination of her IS before the local authority made its HB decision (paragraph 42).

Comment from CPAG

The saving grace for the claimant in this case was that it was accepted that she was in fact entitled to JSA (ie, a qualifying benefit) in the relevant period. Failing that, the fact that she knew of the termination of her IS before the HB overpayment decision was made would have been problematic for her.

Summary

The claimant had a number of physical and mental health conditions, including inflammatory joint disease, rheumatoid arthritis, gout, pain and swelling in the hands. He failed the work capability assessment. The First-tier Tribunal rejected his appeal. In so doing, the tribunal noted that the claimant had last worked as a shelf stacker, and that taking account of the transferable skills from that job, there was 'an adequate range of work' he could undertake without substantial risk to himself or others.

Judge Bano set the decision aside and referred to case to a fresh tribunal. The tribunal had erred in not giving adequate reasons regarding the 'substantial risk' rule at regulation 29 of the Employment and Support Allowance Regulations 2008, SI No. 794. In Charlton v Secretary of State for Work and Pensions [2009] EWCA Civ 42, the Court of Appeal had held that is was necessary to assess the 'type of work' that a claimant could do without substantial risk. The tribunal's reasoning did not need to be long or elaborate, but- said Judge Bano - it was necessary that it was 'reasonably apparent' from the reasons that the individual circumstances of the claimant had been properly taken into account (paragraphs 8-9).

It was true that the tribunal had explained why (with reference to lack of reasons and differences from the claimant's own account) it did not accept the evidence of the claimant's GP. But his physical disabilities 'could be expected to call into serious question' his ability to resume work as a shelf stacker or similar work, and the tribunal had been unclear about how his alleged abilities regarding watching television and using a mobility phone were relevant to particular work (paragraphs 10 and 11).

Overall, held the judge, an informed reader of the tribunal's decision 'is left guessing as to what specific type of work the tribunal considered that the claimant could undertake without substantial risk to his mental or physical health' (paragraph 12).

Summary

This decision of the Scottish Court of Session, now reported, concerns the right to reside for income support (IS) purposes of a child of a European jobseeker estranged from both parents, in circumstances in which the parent with a right to reside was no longer in the UK.

The claimant, a Polish citizen, was at school in the UK. Her mother joined her in the UK in 2014 and was a jobseeker, but returned to Poland. The father had never been in the UK. The claimant was estranged from both parents. Her claim for IS was refused on the basis that she did not have the right to reside. Although the First-tier Tribunal allowed her appeal, it was overturned by the Upper Tribunal, who considered the right to reside at issue - that of a family member of a jobseeker - was excluded for 1S purposes.

The Court of Session allowed the claimant's further appeal, and substituted a decision that she did have the right to reside for IS purposes. It was true that a right to reside as the family member of a jobseeker who was in the UK was excluded under regulation 21 AA(2)(b) of the Income Support (General) Regulations 1987, SI No.1967. But the court accepted that that provision, by referring to a jobseeker who was a 'qualified person' under the Immigration (European Economic Area) Regulations 2006, SI No.1003 (the 'EEA Regulations') referred only to jobseekers who were in the UK. The extended right to reside of such a person and her/his family members was under regulation 14(2), and this was the right that was excluded in the IS rules.

By contrast, where a person (like the claimant) is the direct descendant of someone who stopped being a qualified person on ceasing to reside in the UK, and was in education in the UK immediately before then, s/he retains her/his right of residence under regulation 10 of the EEA Regulations and has an extended right to reside under regulation 14(3). That, considered the court, was not excluded by the IS rules (paragraphs 22-26). There was no absurdity in such an approach. On the contrary, held the court, 'we consider that it is consistent with the principles of non-discrimination and equality of treatment which are fundamental to EU law that children of EEA citizens who are estranged from their parents and left in the United Kingdom should be treated in the same way as British children would be treated in the same circumstances' (paragraph 29).

Summary

This decision of the Scottish Court of Session concerns the meaning of 'social support' in Activity 9(c) of the personal independence payment assessment, namely whether the claimant scores four points because s/he needs 'social support to be able to engage with other people'. The court considered an appeal by the Secretary of State against the decision on the Upper Tribunal in MMck v SSWP [2016] UKUT 191 (AAC). The Secretary of State submitted that the Upper Tribunal had been wrong to hold that 'social support' could - in specific circumstances - include 'prompting', and that the social support could in some situations be given in anticipation of the claimant meeting people face to face, rather than just at the same time as the engagement.

The court rejected the Secretary of State's appeal. There could be 'no justification for a requirement that either prompting or social support must be given during or immediately before the face-to-face engagement with other people' (paragraph 50). The court did accept that there needed to some sort of 'temporal or causal link' between the support and the engagement.

Endorsing the approach of the Upper Tribunal, the court considered that, for example, a psychologist could give a psychological intervention which could mentally attune the claimant to go and meet people face to face. On the other hand, where, as a result of psychiatric or psychological intervention in the past, the claimant now did not need further help to engage, it could not be said that social support (or prompting) was required. It was for the decision maker or tribunal to decide whether the required temporal or causal link was present (paragraphs 47-51 ).

The court held that there was the potential for overlap between 'prompting' and 'social support'. The crucial distinction between the two was that social support 'comes from a person trained or experienced in assisting people to engage in social situations' (paragraphs 54-55). That did not mean the mere fact that prompting came from such a person meant it was social support. There had to be some necessity for it to come from that person, so that 'encouragement or any other sort of prompting can qualify as "social support" if, to render it effective or to increase its effectiveness, it requires to be delivered by someone trained or experienced in assisting people to engage in social situations' (paragraph 56).

Decision in brief

While tribunal has a function to enquire, there are certain clinical matters which should be respected - re both Activity 9 (Engaging with people face to face) and the mobilising descriptors, tribunal erred in restricting consideration to social contact that was 'reasonably necessary' or to what walking was 'reasonably required' - wrong to exclude claimant's choice- reasoning in Secretary of State v Fairey (R(A) 2/98) that 'the yardstick of a "normal life" is important' was pertinent here

Decision in brief

For 'reasonable grounds' for believing' that the rate is wrong or that claimant is not entitled - on appeal, tribunal stands in shoes of decision maker and considers whether at the time of the section 16 decision there were 'reasonable grounds' or not - appeal is also against the discretionary decision to amend or terminate the 'award' - should still be decision about 'entitlement' at the end of the year, under section 18

Comment from CPAG

At the time of making the present decision, the judge was aware that a decision in LS and RS v HMRC was forthcoming. Insofar as an appeal against a section 16 decision is not lapsed, it remains pertinent. LS and RS v HMRC changes that in the situation where a decision under section 18 is made before the appeal is heard - ie, because the section 16 appeal will then lapse. However, as both the present decision and LS and RS v HMRC indicate, a claimant appealing a section 18 decision is able to make all the points about entitlement that s/he wishes to.

Decision in brief

As soon as a decision on entitlement at the end of the year has been made under section 18, any decision made under section 16 for that tax year ceases retrospectively to have any operative effect - any appeal against the section 16 decision lapses and the tribunal must strike out the proceedings

Comment from CPAG

A three-judge panel was convened to make this decision, as different approaches had been taken regarding this subject by the Upper Tribunal in RF v HMRC [2016] UKUT 399 (AAC) and in JY v HMRC [2016] UKUT 407 (AAC). The former had held that the section 16 appeal was not lapsed by the section 18 decision, the latter that it was lapsed but there was still discretion to hear the appeal. Both decisions were disapproved on those points by the present decision. It is now clear that the section 18 decision lapses the section 16 appeal, which must then be struck out.

Decision in brief

Tribunals - First-tier Tribunal concluded its hearing but did not issue decision - on the day before decision sent out, claimant sent in additional evidence - tribunal erred in holding it could not be taken into account as the hearing had concluded - a decision only becomes final once written notice of that decision has been sent to the parties (CJ v SSWP (IS) [2013] UKUT 131 (AAC) applied) and matters are in abeyance before that point- tribunal in fact had discretion as to whether to admit the evidence or not, applying the overriding objective to deal with matters fairly and justly

Decision in brief

Inability to see people being spoken to and to see body language may present barriers - tribunal should not assume that ability to engage at a tribunal hearing means that no prompting or social support is required in other contexts

Decision in brief

Work consisting solely of selling Big Issue - decision in Bristol City Council v FV (HB) [2011] UKUT 494 (AAC) not authority that all Big Issue sellers are self-employed persons - on facts of present case (which included that claimant worked for 40 hours a week at a profit of less than £2 per hour, did not keep sales records, had no intention of seeking other or more remunerative work and had bulk of income from benefits), tribunal did not err in holding that the work was not genuine and effective

Decision in brief

Young person with ADHD - points may be scored regarding needing prompting to avoid selecting malodorous or unhygienic clothing - points me also be scored regarding need for help avoiding impulsive spending - but in either case the inability must stem from a physical or mental condition (includes ADHD), so mere indifference or inexperience does not by itself suffice

Comment from CPAG

The Upper Tribunal is clearly indicating that dressing and undressing involves more than simply putting clothes on and taking them off - see also ML v SSWP [2017] UKUT 171.