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Decison in brief

In applying to withdraw her appeal to the Upper Tribunal, the Secretary of State accepted that 

‘an EU citizen who retains worker status by virtue of reg.6(2)(b) of the Immigration (European Economic Area) Regulations 2006…will not lose that worker status merely because his or her JSA is disallowed on the grounds of “not actively seeking work”’

Note from CPAG

This decision is merely a consent to withdraw an appeal rather than a fully reasoned and binding decision of the Upper Tribunal. However the Secretary of State’s concession is noteworthy. 

Thanks to Joe Power of Kirklees Citizens Advice and Law Centre for sending us this decision.

Decision in brief

‘Dependence’ and need for support to be material – linguistic support in the form of translation at medical and other appointments – not a form of material support – neither is emotional or social support – material support is that concerned with the physical necessities of life

Decision in brief

Prior to rule change on 16 November 2017, no definition of the ‘amount of any income foregone’ in regulation 18 of the State Pension Credit Regulations – where the assets of the plan were less than the claimant’s initial investment, withdrawals from the plan were capital and could not be notional income – from 16 November 2017, rule change provided that the ‘amount of income foregone’ is the amount of an annuity which may have been purchased with the fund

Decision in brief

Interview was for 9am but claimant said he only received the notification letter in the afternoon – it is inherent in the nature of a notification that can lead to a sanction for failure to comply that it does not take effect unless and until it is received – whether it was received on time is a question of fact – if it was not, then the issue of good reason for not attending does not arise – absence of a history of undelivered mail does not necessarily undermine the claimant’s case

Decision in brief

RJ, GMcL and CS v SSWP; SSWP v RJ [2017] UKUT 105 (AAC) is not authority that someone with cochlear implants who needs to remove them when bathing will always score points under descriptor 4c – RJ said there was an indication of need for supervision in such circumstances, but award requires judgement on the individual facts of the case – but it is not correct to say that a claimant can be expected to minimise risk by limiting the time taken to bathe (EG v SSWP (PIP) [2017] UKUT 101 applied)

Decision in brief

Property jointly owned by claimant and daughter and occupied by the daughter and her son – application of regulation 51 of the Housing Benefit Regulations 2006 – District Valuer valued the claimant’s interest – did not have to provide evidence of the existence of a local market as ‘there is a market for interests that do not allow immediate exclusive possession. That may not be widely known among claimants, but it has been referred to in a number of Upper Tribunal decisions. It may not be easy to provide evidence of that market, but its existence is not in doubt.’

Comment from CPAG

It is not clear that the judge’s view that there is a market for part shares in such circumstances commands widespread assent, at least in the context of regulation 51 and without clear evidence of sales in similar cases (see for example CH/1953/2003, and the commentary in CPAG’s Housing Benefit and Council Tax Reduction Legislation, 2017/18, pp465–6).

Decision in brief

Concession by Secretary of State that lip reading is not an acceptable way to interpret verbal communication – concession accepted in SB v SSWP and that ‘pragmatic approach’ adopted here – as long as Secretary of State continues to make this approach, then tribunals should take same approach – if Secretary of State changes her position, then issue of lip reading may need to be subject of a binding decision of the Upper Tribunal, but not at present

Decision in brief

Although PIP and ESA are separate benefits and there is no question of an award of one binding a tribunal regarding the other, evidence given in respect of one may still be relevant to another – nor is there anything to prevent an argument on one benefit based on an analysis of an award of the other (LC v SSWP [2015] UKUT 32 (AAC) cited and approved) – proper role of the tribunal is to assess the evidence presented to it, and the tribunal should deal with evidence if the claimant or her/his representative has specifically relied on it

Decision in brief

Regulation 12(1)(d) of the Housing Benefit Regulations 2006 – reference to ‘use and occupation’ of the dwelling is to be interpreted according to the decision in R v Bristol City Council ex parte Mrs J Jacobs [2000] 32 HLR 841 (ie, as reference to payments to a landlord, not in respect of a licence to use water) – contrary reasoning in CH/0844/2002 disapproved

Comment from CPAG

In CH/0844/2002, it was also accepted that as ‘mooring charges’ for a houseboat were eligible, that could also cover, under what is now regulation 12(1)(f), both a mooring permit and a boat licence fee payable to British Waterways. That part of the decision was not addressed in the present decision, presumably because it did not arise on the facts.

Decision in brief

Tribunal hearing an appeal against that decision, which decides that there is no entitlement for the year, should not reproduce that as it is legally incorrect – however, where there has since been a final decision for the year under section 18 of the Tax Credit Act 2002, the in-year section 16 decision in any case ceases to have legal effect and cannot still be the subject of an appeal, although any appeal against the section 18 decision can go ahead (LS and RS v HMRC [2017] UKUT 257 (AAC) applied)