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Decision in brief

Descriptor (d) 'Cannot engage with other people' due to such engagement causing either 'overwhelming psychological distress' or 'substantial risk' - being able to 'engage socially' is part of whether a claimant can engage safely and to an acceptable standard but that test is relevant to descriptors (a)-(c) which envisage that a claimant can engage with other people - it is not relevant to descriptor (d) which envisages that the claimant cannot engage with other people without the distress or risk- if, on other hand, claimant can avoid the distress or risk with social support, s/he satisfies descriptor 9(c)

Summary

In nine tribunal decisions regarding the same claimant, the applications for permission to appeal to the Upper Tribunal were late. Applications for permission to the First-tier Tribunal had been late, and although accepted, permission was refused. The consequent application to the Upper Tribunal for permission to appeal was also made late (by almost two months). Just before the standard one-month time limit expired, the claimant's representative had written to the Upper Tribunal requesting an extension of time, setting out reasons which included that nine appeals were involved with extensive documentation and that he did not have time to read and digest all the papers and take further instructions before expiry of the time limit. The Upper Tribunal responded that extensions of time were not granted, but a late application could be considered if accompanied by reasons for lateness.

Judge Lane refused the eventual late application for permission to appeal to the Upper Tribunal: as it was not in the interests of justice to grant it. She followed, broadly, the approach taken by the Upper Tribunal in an immigration and asylum case, R (on the application of Onowu) v First-tier Tribunal (Immigration and Asylum Chamber) [2016] UKUT 185 (IAC). That set out three main stages for consideration of a late application: (1) identify and assess the seriousness or significance of the failure to comply with the rules; (2) consider why the failure occurred (ie, whether there is a good reason for it); (3) evaluate all the circumstances of the case, so as to deal with the application justly. Onowu was 'robustly disapproving of delays attributed to overworked and underfunded legal services and public bodies'. However, held the judge, 'that is not necessarily a view that advances the interests of justice to legal services and public bodies in the social entitlement sphere... In these circumstances, a more flexible approach to delay may be needed if justice is to be done' (paragraph 4).

But the present appeal did not provide an example of that need (paragraphs 4 and 9-18 Regarding the Onowu stage one, the facts showed 'very substantial delay' by an appellant who had had the advantage of legal representation, yet had applied late both to the First-tier and Upper Tribunals. Regarding stage two, both the appellant and her representative had delayed (the latter being a 'very lengthy' delay), and in the judge's view there was no good reason. The representative had only to identify an arguable error of law in the First-tier Tribunal decision, something the papers showed the appellant had herself already done, yet after two months' delay the actual application for permission to appeal added little. Onowu stated that, in most cases, the merits of the appeal will have little to do with whether an extension of time should be granted. Only in cases where very strong or very weak merit were easily apparent will the merits have a significant part to play, and that was not the case here.

Summary 

The claimant was in receipt of state retirement pension, including a dependant's addition for his wife. He notified the pensions office that his wife was about to start getting her own state retirement pension. He assumed that the pensions office would be aware of the amount, and made no further disclosures. In the event, he was overpaid the dependant's addition over a period of several years. A First-tier Tribunal dismissed his appeal against the decision that the overpayment was recoverable from him, as he had failed to disclose the amount of his wife's retirement pension.

Judge Wright allowed the claimant's appeal and substituted a decision that the overpayment was not recoverable from him as he had not failed to 'disclose' the amount of his wife's retirement pension. The Secretary of State accepted that initially the claimant had fulfilled his duty to disclose to the pensions office what he had been clearly instructed to do - ie, that his wife was entitled to a retirement pension. But it was contended that the claimant had .then failed to disclose the annual uprating of the pension in the following years, and this founded the recoverability of the overpayment. Rejecting that, Judge Wright held that the concept of 'disclosure' involved telling the relevant office something that, as far as the claimant was aware, it did not already know. The amount of his wife's retirement pension, including when it was uprated every year, was not something the claimant could as a matter of law 'disclose' to the pensions office (paragraphs 45-47).

The judge approved (at paragraph 48) the meaning of the word 'disclose' given in R(SB) 15/87. There it was said that, 'disclosure consists in the statement of a fact so as to reveal what the discloser knows was previously unknown to the person to whom the statement was made'. On the facts, the uprating of his wife's state pension was 'plainly known' to the pensions office. 'Just as importantly', the claimant would have known that, because his wife's pension 'was the same species' as that which he had been getting and was uprated annually (paragraph 49). The judge rejected as incorrect the approach which had been taken (by Judge Ward) in GK v SSWP [2009] UKUT 98 (AAC)), where it was held that the effect of the Court of Appeal's decision in B v Secretary of State for Work and Pensions (R(IS) 9/06) was that whether the fact was already known was no longer relevant. That was incorrect, said Judge Wright, fundamentally because R(IS) 9/06 was not concerned with the meaning of 'disclose', but rather with the concept of 'failure'. Although a claimant might 'fail' to notify or furnish information in breach of her/his duties, a resulting overpayment will only be recoverable if that amounts to a failure to 'disclose' (paragraphs 63-65).

Comment from CPAG

This decision requires careful reading and application: It is a reassertion of the relevance of whether the relevant office already knew the facts. But the judge attached significance to his finding that the claimant would himself have known that the pensions office knew the relevant facts. Further, the fact that it was annual uprating that was in issue clearly informed the judge's view that it was plain that the Secretary of State would have known about it: uprating was 'public knowledge' that would have been known even in separate offices (paragraph 53).

Summary

The claimant was awarded PIP for three years from 26 February 2014. At some point in 2015 he reported a change in circumstances, namely that his condition had worsened. But following completion of a further PIP questionnaire and another medical, in November 2015 he was told that he no longer qualified for PIP at all. His appeal (following a mandatory reconsideration) was dismissed by the First-tier Tribunal.

Judge Wikeley allowed the claimant's further appeal and remitted the case to be heard by a fresh tribunal. As the judge commented: 'This case is a further reminder of the need to identify the basis for any supersession and to provide an appropriate explanation for any change in a person's entitlement to personal independence payment (PIP)' (paragraph 1). The tribunal had erred in failing to establish whether a ground for supersession of the claimant's award existed, and failed to explain to the appellant why his existing award should be removed (paragraph 12).

This applied both to awards made by the Secretary of State and by a First-tier Tribunal. The Secretary of State was able to look into an existing PIP award, but in changing the decision must show that a supersession ground was made out, and the subsequent decision on entitlement 'must have regard to all the evidence' (paragraphs 17-18). Regarding supersession grounds, the judge clarified that his earlier decision in MR v SSWP (PIP) [2016] UKUT 481 (AAC) was not authority that supersession was only possible for change of circumstances (paragraph 18). One ground for supersession is receipt of new medical evidence by the Secretary of State. But (regarding the issue of what the claimant's actual entitlement is) the judge also pointed out that a new official PIP assessment report could not simply be assumed to 'trump' the first one - for example, by virtue of being more recent. The appellant was entitled to an explanation as to why his award had been terminated ahead of time (as pointed out in R(M) 1/96 and in SF v SSWP (PIP) [2016] UKUT 481 (AAC)) (paragraph 14).

Comment from CPAG

This decision is further clarification of the basic position that an ongoing award can only be changed where a supersession ground is identified, any change in entitlement is considered on the evidence and (at tribunal level at least) that change is properly explained to the claimant. For a discussion of the earlier caselaw on this subject, see 'PIP: changing an ongoing award', Bulletin 258, p6.

Summary

The claimant was a British national. He had lived all his life in the UK and lived in his mother's house. He decided to spend time travelling abroad, leaving the UK in November 2013 and returning (back to his mother's house) in February 2015.He did not work while abroad, stayed in hotels and hostels, and retained bank accounts in the UK. On his return he claimed jobseeker's allowance, but was refused on the basis that he was a 'person from abroad' as he had not been 'living in' the UK in the three months before his claim. His appeal to the First-tier Tribunal was rejected.

Judge White allowed the claimant's further appeal and substituted a decision that he was not to be treated as a 'person from abroad' at the time of his claim. The relevant rule was at regulation 85A of the Jobseeker's Allowance Regulations 1996, SI No.207. A person is a 'person from abroad' ifs/he is not habitually resident in the common travel area (ie, the UK, Channel Islands, Isle of Man and Republic of Ireland); subject to exceptions, a claimant shall not be treated as habitually resident if s/he has not been 'living in' any of those places for the past three months. The case therefore turned on whether the claimant could be regarded as having been 'living in' the UK in the three months before his claim. The judge considered that he had.

In so holding, he approved the approach taken to the meaning of 'living in' by the Northern Ireland Commissioners in AEKM v Department for Communities (JSA) [2016] NICom 80 (paragraph 27). That involved taking a broad approach, considering things like duration of past residence, family connections and temporary absence. The tribunal in the present case erred in holding that 'living in' required physical presence (paragraph 28). Judge White considered the claimant was plainly habitually resident in the UK when he left, and that, on the facts, his 15-month period abroad was a temporary absence. His travels were 'just that: an extended holiday' (paragraph 34). The Secretary of State argued that a 15-month absence could not be a temporary one; but the judge held that although duration of absence was relevant, it was not determinative (paragraphs 36-7).

Comment from CPAG

This decision formally adopts the approach taken in AEKM into binding caselaw in Great Britain.

Summary

The subject of this decision of a three-judge panel of the Upper Tribunal is the power of a First-tier Tribunal where regulations (in this case, those applying the so-called 'bedroom tax' restriction to HB) have been held to be in breach of the claimant's rights under the European Convention on Human Rights (ECHR). The decision follows on from the decision of the Supreme Court in R (Carmichael and Rourke) v Secretary of State for Work and Pensions, part of the decision in R (MA and others) v Secretary of State for Work and Pensions [2016] UKSC 58 (9 November 2016). The Supreme Court held that, in the case of the claimants, who were disabled adults unable to share a bedroom, the bedroom tax rules unlawfully discriminated against them and so were in breach of the ECHR.

Despite the decision in the Supreme Court, the Secretary of State argued that the First-tier Tribunal was nevertheless obliged to apply the regulations implementing the bedroom tax. The claimant's entitlement could not change, argued the Secretary of State, until the regulations themselves were changed so as to reflect the Supreme Court's decision, the relevant date being 1 April 2017 (paragraph 53). In short, the Secretary of State argued that the tribunal had no ability to correct the (now undisputed) breach of the claimant's human rights.

Mr Justice Charles, Judge Lloyd-Davies and Judge Wikeley rejected that, and held that the tribunal was able to remedy the breach of the claimants' human rights. The correct approach (not quite the one adopted by the tribunal in question) was to direct that the claimant's HB was to be calculated without the reduction for the bedroom tax. It was unlawful for the local authority to apply the bedroom tax where to do so involved a breach of the claimant's Convention rights (paragraph 67).

The judges pointed out that the starting point (under section 3(1) of the Human Rights Act 1998) is that 'both primary and secondary legislation must be read and given effect to in a way which is compatible with Convention rights' (paragraph 57). The Secretary of State, in arguing that the tribunal could not remedy the discrimination, was failing to give sufficient effect to sections 6 and 7 of the Act, which provide that a tribunal must not act in a way which is incompatible with a Convention right and that a claimant has the right to rely on Convention rights in any legal proceedings (paragraph 60). 'In effect', said the judges, the Secretary of State 'is asking us to accept that a member of the public cannot get an effective remedy on human rights grounds in the First-tier Tribunal. If so, that would be truly remarkable' (paragraph 59).

Comment from CPAG

The judge's comments perhaps also reflect the incredulity many will feel at the Secretary of State's arguments. Nevertheless, the Secretary of State persists. Having been refused permission to appeal further by the Upper Tribunal in this case, he has applied for permission directly to the Court of Appeal.

Summary

In this decision, the Court of Appeal held that a self-employed person does not have a right to reside as the primary carer of a child in education - that applies only to employed persons. The court therefore refused to make a reference to the Court of Justice of the European Union (CJEU).

The claimant was a Slovakian national. She had been self-employed after corning to the UK. Her son entered school in the UK. Her right to reside for income-related employment and support allowance depended on her having such a right as the primary carer of a child in education (a right now referred to as a 'derived' right to reside, as based on the right of the child to complete their education). The claim had been refused, including at the Upper Tribunal, on the basis that such a right applied to employed persons but did not extend to self-employed persons. In particular, Judge Jacobs in the Upper Tribunal had considered himself bound by the decision to that effect of the CJEU in Case 14 7 /11 Secretary of State for Work and Pensions v Czop [2013] PTSR 334 (Bulletin 230, p11). In that case, reference had been made to the fact that European provisions on the right of children to be educated referred specifically and deliberately to the children of 'employed persons'.

Lady Justice Arden, Lady Justice Black and Lord Justice Flaux unanimously dismissed the claimant's further appeal and refused to make a further reference to the CJEU. The court considered that Czop had concluded the issue and had not, contrary to the claimant's argument, failed to answer all the questions that had been put to it regarding the position of self-employed persons in European law (paragraphs 59-67). The court also reasoned that there was no basis for holding that the principle of non-discrimination (ie, regarding the position of self-employed persons) applied in this context. There was no directly enforceable right under European law for a self-employed person to be treated identically with an employed person where, as here, European legislation indicated otherwise (paragraphs 68-75).

Note: application for leave to appeal to the Supreme Court has been made.

Decision in brief

First-tier Tribunal erred in its understanding of the decision of the EUECJ (European Court of Justice) in Baumbast - that was about the proportionality of relying on the precise requirements of European Union law on right to reside in a case where the claimant (as described in SSWP v PS-B [2016] UKUT 5) 1 (AAC)) 'for all practical purposes satisfied the conditions for an accepted category of right to reside' - claimant in the present case did not come anywhere near that- similarly, the Supreme Court in Mirga held that, where a claimant was not in a right to reside category, proportionality could not be invoked to entitle that person to a right to reside, save perhaps in extreme circumstances

Decision in brief

Genuine prospect of work - fact that claimant obtained a job six weeks after the decision under appeal was evidence of a genuine prospect of work at that time - tribunal erred in holding that the gaining of a job after the decision under appeal could not be taken into account - although changes of circumstance after the date of the decision under appeal cannot themselves be taken into account, there is no bar on drawing inferences from them about the circumstances obtaining when, or before the decision was made

Decision in brief

Ability to use telephone for text functions is irrelevant here -tribunal erred in expecting claimant to avoid noisy places - Secretary of State policy of not taking ability to lip read into account not accepted as applying in all cases - regarding Activity 9, engaging with 'other people' includes with people not known to the claimant- but the 'social support' in 9(c) needs to be given at the time of the social engagement (not in advance}, and is materially different in nature from 'prompting', being 'more personal and intimate'

Comment from CPAG

The judge noted that regarding the meaning of 'social support' further appeals are current to the Court of Session against the decision in MMcK v SSWP [2016] UKUT 191 (AAC), and to the Court of Appeal against the decisions in both AH v SSWP [2016] UKUT 276 (AAC) and GH v SSWP (PIP) CPIP/65/2016.

Decision in brief

Appeal is not a limited capability for work appeal and therefore is dealt with by a judge sitting alone - CSE/272/2016 approved

Decision in brief

Use of catheter - specific provision for management of incontinence to include self-catheterisation for purposes of Activity 5 indicates that catheterisation should not also count as 'therapy' for the purposes of Activity 3 (managing therapy or monitoring a health condition)