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Decision in brief

Quashed by RF v Secretary of State for Work and Pensions [2017] EWHC 3375 (Admin) – amendments were invalid from the time that they were made by virtue of the retrospective effect of the quashing order when it came into force

Summary

The parents of a child were separated. Originally it was agreed that the child should live with the mother, who continued to receive child benefit. A few years later, however, the father submitted a competing claim for child benefit, asserting that following a dispute the child had come to live with him. That was disputed by the mother. What followed was a complex series of HM Revenue and Customs (HMRC) decisions and (eventually) two First- tier Tribunal hearings, forming what Upper Tribunal Wikeley describes as a ‘catalogue of procedural errors’ (paragraph 3). Both First-tier Tribunals awarded child benefit to the mother.

Judge Wikeley allowed the father’s appeal in both cases, but without deciding the substantive issue of who was entitled to child benefit for the child, a question that was remitted to a fresh tribunal. The first tribunal had erred in failing to join the father to the appeal (and in that he never saw the papers or was given the opportunity to attend the hearing), so breaching the rules of natural justice (paragraph 28). The second tribunal erred in proceeding when it had no jurisdiction, as the decision appealed against (by the father) was a misleading HMRC ‘decision’ following the first tribunal, which in fact was not a decision properly so called and carried no right of appeal (paragraph 31).

More widely, the judge made substantial criticism both of the HMRC's decision making and the tribunal's handling of these appeals. It was ‘difficult to know where to start’ in describing where HMRC had gone wrong. There were at least three obvious problems. Firstly, HMRC decision makers were ‘utterly confused as to the scope of their own powers in determining child benefit claims’ (paragraph 25). This had resulted in HMRC wrongly asserting that certain of its decisions in this case did not carry a right of appeal. Secondly, HMRC decision makers were ‘hopelessly confused about the effect of a decision by the First-tier Tribunal’. This led to them writing to the father after the first tribunal with a purported revision that in fact they had no power to make, a problem which, combined with a history of similar problems in other cases, led the judge to conclude that ‘there appears to be a systemic ignorance with HMRC of the basic architecture of decision making under the Social Security Act 1998’ (paragraph 26). Thirdly, this ‘double confusion’ was reflected in letters sent to both parents – eg, telling the mother in the same letter that she had no right of appeal and that she did have a right of appeal (paragraph 27).

Summary

The claimant’s child benefit appeal was about her right to reside. HM Revenue and Customs (HMRC) refused her claim on the basis that she had failed to provide evidence that her self-employment was genuine and effective. HMRC’s written response to the First-tier Tribunal stated that departmental records showed a period of maternity leave, but the records were not provided to the tribunal. The claimant said that she had already provided HMRC with evidence of her maternity allowance (which clearly indicated self- employment). The tribunal dismissed the claimant’s appeal, but made no finding regarding her entitlement to maternity allowance, did not address HMRC’s reference to maternity leave or why it considered it could proceed without evidence about that.

Judge Mitchell allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred in failing to address HMRC’s apparent failure to comply with its duty to provide the tribunal with relevant documents (under rule 24 (4) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, SI No.2685). In particular, the tribunal had failed to find that the evidence already before it was sufficient without the need to enquire into the nature of the undisclosed evidence from HMRC (paragraph 19).

The judge dismissed HMRC’s argument that there had been no failure under rule 24 as, although its undisclosed records indicated that the claimant ‘may’ have been self-employed, they did not ‘conclusively evidence’ that. It was for the tribunal, argued HMRC, to call for evidence and the tribunal’s approach in this case (ie, by not calling for it) was supported by FN v SSWP [2016] AACR 24; [2015] UKUT 670 (AAC). Firstly, held the judge, HMRC had confused its responsibility as a party to proceedings with those of the First-tier Tribunal. It was not for the public authority (ie, HMRC in this case) to determine whether a document proves a particular fact; rather that is the function of the tribunal (paragraph 17). Secondly, FN did not justify the tribunal’s approach in this case. While true that FN holds that a breach by a respondent of rule 24 does not inevitably result in an error of law by the tribunal, it is also emphasis that it is for the tribunal to decide if it has sufficient evidence. In the present case, the tribunal had made no such finding and so had erred (paragraph 19).

Comment from CPAG

The documents not sent to the tribunal were clearly relevant, and that was enough both to put HMRC under an obligation under rule 24 and to require the tribunal to address the failure to meet that obligation. Contrary to the implication of the HMRC argument, FN is not authority that it is always acceptable for a tribunal to proceed without missing evidence.

Summary

The claimant was a 19-year-old German national who had lived in the UK with his father and mother since he was 11. He was seriously ill and had never worked. His claim for universal credit was refused on the basis that he did not have a right to reside. The First-tier Tribunal dismissed his appeal without holding a hearing, something the tribunal explained by saying that the claimant had opted for that and the Secretary of State had not objected.

Judge Poynter allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred by virtue of ‘a comprehensive failure by the judge to exercise her enabling and inquisitorial jurisdiction’ (paragraph 15). The available evidence (including the claimant’s own German nationality) clearly indicated that he might be able to establish a right to reside, in particular by virtue of his father or mother possibly having German nationality at least at some stage and having worked in the UK. The tribunal had completely failed to enquire into this. The claimant was not represented. The law about right to reside was ‘not straightforward and the claimant was entitled to expect the First-tier Tribunal to exercise its inquisitorial function by asking all the questions that needed to be asked…’ (paragraphs 17–29).

The tribunal had also erred by not holding a hearing without having shown that it had considered whether it could so proceed fairly and justly. Although the claimant had opted for the appeal to be dealt with on the papers and the Secretary of State had not objected, it was also required (under rule 27(1)(b) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, SI No.2685) that the tribunal itself ‘considers that it is able to decide the matter without a hearing’. Taken together with the overriding objective (at rule 2), that meant it had to consider whether it could deal with matters ‘fairly and justly’ without a hearing. The tribunal decision did not show that had been considered or, if it had, why it could proceed fairly and justly without a hearing. Had the tribunal judge considered that then, given the need to enquire further into the facts, the answer should have been that it could not so proceed (paragraphs 44–54).

Summary

The claimant claimed asylum in the UK on 24 July 2014. He was awarded refugee status on 26 November 2016. He promptly telephoned the tax credit office (on 1 December 2016) and requested a tax credits claim form. However the form failed to arrive (either because of a failure by HM Revenue and Customs (HMRC) or the Royal Mail) and his claim was not received until 9 February 2017. HMRC automatically backdated the claim for one month – ie, to 9 January 2017. On appeal to the First-tier Tribunal, the claimant argued that his date of claim should have been the date of his claim for asylum. The tribunal refused the appeal.

Judge Wikeley refused the claimant’s further appeal. The date of claim was correctly identified as 9 January 2017 and the tribunal had not erred. Although there was a provision allowing for a claim by a refugee to be dated as the claim for asylum (at regulation 3(4)–(8) of the Tax Credits (Immigration) Regulations 2003, SI No.653 (‘the 2003 regulations’), that did not apply on the facts of this case. That left the standard ‘one-month backdating rule’ at regulation of the Tax Credits (Claims and Notifications) Regulations 2002, SI No.2014 (‘the 2002 regulations’), which had been correctly applied.

The reason that the claimant was not assisted by regulation 3 of the 2003 regulations was that he did not satisfy the requirement at 3(5)(b) to have claimed tax credits within one month of receiving notification of refugee status. On the facts, he had been notified on 26 November 2016, but did not claim tax credits until 9 February 2017 – ie, more than a month later. The judge held that the telephone call on 1 December 2016 could not be regarded as a claim. Regulation 5 of the 2002 regulations provides that claims must be made in writing ‘or in such other manner as [HMRC] may decide having regard to all the circumstances’. Firstly, the tribunal had no jurisdiction regarding whether a claim could be made in writing as that was purely discretionary for HMRC (paragraph 16, applying CTC/31/2006). Secondly, in any event, ‘no reasonable tribunal’ could have concluded that the telephone call, which was very short and clearly just to request a form, amounted to a claim (paragraph 18). The judge noted that if the issue was whether the claimant had good cause for claiming when he did, his late receipt of the claim form may have been relevant – but good cause was not part of the statutory test (paragraph 20).

Comment from CPAG

This is clearly a harsh outcome for the claimant although, in the absence of a good cause provision, it is hard to see what other one could have applied. The judge noted that an HMRC refusal to accept a claim other than in writing can be challenged on judicial review. Although not discussed in this case, HMRC's failure to send out a claim form when requested might, depending on the facts, be the subject of a claim for compensation.

Summary

The claimant was in receipt of tax credits as a single person. But following HM Revenue and Customs enquiries, she was notified that she was not entitled as she was considered to be ‘living together as husband and wife’ with her allegedly former partner, and so should have been claiming with him jointly. The claimant acknowledged that she lived in the same house as her alleged partner and had had a child with him, but said the only reason they lived together was that he was ill and she was caring for him, and that they were not in a relationship. The First-tier Tribunal dismissed the claimant’s appeal, finding that they were living together, had a child together and shared finances, with the result that the arrangements were ‘similar to a family unit’.

Judge Wikeley allowed the claimant’s further appeal and, on the facts of the case, substituted a decision that the claimant was not living together as husband and wife with her former partner, even though she shared the same address, and was correctly claiming tax credits as a single person. Drawing on the extensive evidence on file, the judge found that the claimant and her ex-partner were originally a couple, were living together and had a daughter together. But that relationship ceased and the claimant and her daughter left the home. They lived away for about 18 months before returning there for financial reasons and staying longer term because of the ex-partner’s deteriorating health and wanting to provide care for him. The tenancy and bills were in the claimant’s sole name. There were separate rooms and separate finances, although a joint account was retained. With reference to authority on the living together as husband and wife test, the judge was satisfied that did not amount to counting as a couple under that test (paragraphs 45–46).

The tribunal had failed to explore the claimant’s explanation of what had happened and in doing so failed to make appropriate findings of fact or give adequate reasons for its decision. ‘The moral of this case’, said the judge, ‘is that in cases in which it is alleged that a man and a woman having been living together as husband and wife it may be necessary to “drill down” into the facts to arrive at a decision that can be properly sustained on all the evidence. It is not necessarily enough to ask: are they living together?...one must also ask: If they are living together, why are they living together?’ (paragraphs 1–4).

Comment from CPAG

Although the tribunal in this case did not err regarding the correct legal test and relevant authorities, it did err in its approach to fact finding. The latter is especially important in ‘living together’ decisions, in which there may be various explanations for the living arrangements.

Summary

In May 2015, the claimant wrote to the DWP saying she had been told she could get PIP as well as her current employment and support allowance (ESA), and if so could she be sent an application form. The claimant asked for more time to complete the PIP1 form and for confirmation that she could get PIP without it affecting her ESA, but never got a clear answer from the DWP. This was repeated when she was eventually sent the PIP2 form in December. The claimant never returned the PIP2 form and her claim was disallowed (for failure to supply further information) in January 2016. Her appeal to the First-tier Tribunal was refused.

Judge Ramshaw allowed the claimant’s further appeal, and substituted a decision that the disallowance of the claim be set aside, with the deemed date of her claim for PIP the date in May 2015 when she requested the claim form. She now (having had the reassurance she requested) had one month from the date that this decision of the Upper Tribunal was sent to her to complete and return the PIP2 form. The judge held that the appeal raised two issues: the ‘negative determination’ issue (ie, the disallowance of the claim) and the ‘extension of time’ issue – ie, what should be the date of claim. The tribunal erred on the former issue by wrongly finding that the claimant had been sent the information she had asked for, when in fact she had only been sent a ‘nonsense document’ with confusing information, ignoring what the claimant said about what she had been sent, and not taking into account the state of the claimant’s health, in particular her mental health problems (paragraphs 12– 18). The tribunal had not dealt with the ‘extension of time’ issue, something that it either should have done or at least made it clear that it had decided not to, given that it rejected the claimant’s appeal on the ‘negative determination’ issue (paragraph 19).

Although there was nothing to show the claimant actually needed more time to complete the form, she did have a reasonable concern that PIP might affect her ESA, and so easonably deferred returning the form. Therefore, regarding the ‘negative determination’ issue, she had ‘good reason’ for failure to provide information or evidence (under regulation 8 of the Social Security (Personal Independence Payment) Regulations 2013, SI No.377). For the same reason, regarding the ‘extension of time issue’, it was ‘reasonable’ (under regulation 12 of the Universal Credit [etc.] (Claims and Payments) Regulations 2013, SI No.380) to allow a longer period than the standard one month to complete the claim with regarding to setting the date of claim.

Comment from CPAG

On the facts, it was wrong to disallow the claim. However, the decision is not authority that any termination following refusal to return the PIP2 is unlawful: essentially, it will be a matter of the reasonableness of the claimant’s actions.

Summary

The claimant was in receipt of HB. When he refused to provide details of his bank account, the local authority made a decision ending entitlement on the basis that he ‘had not satisfied the conditions of entitlement in that he had not provided details of a bank account in which to receive payments of housing benefit’. The First-tier Tribunal dismissed the claimant’s appeal.

Allowing the claimant’s further appeal, Judge Jacobs substituted a decision that the local authority had no authority to supersede the claimant’s award on the basis that he would not provide details of his bank account, and that he remained entitled to his award. However, the judge noted that this left the claimant in an ‘impasse’ in that although he was entitled to benefit, he had decided not to provide the information that would allow the local authority to pay it (paragraph 21).

It was wrong for the local authority and tribunal to rely on provisions relating to entitlement in order to terminate the award, when in fact what was in dispute was the method of payment (paragraph 14). Regulation 86 of the Housing Benefit Regulations 2006, SI No.213 provides that a claimant must provide information and evidence that may be reasonably required regarding her/his ‘entitlement’ to HB – but that was separate from and prior to questions about payment (paragraph 11). Similarly, regulations 11 and 13 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001, SI No.1002 provide that a local authority can suspend payment where an issue rises about entitlement, including where that is in connection with the information requirement, but is not about payment (paragraph 12). Although the tribunal was right that the local authority was entitled to change the method of payment and ask for information regarding that, it was wrong to decide that there was a power to terminate or suspend under these rules (paragraphs 15–16).

Comment from CPAG

The decision spells out the important distinction between questions of entitlement (which can give rise to termination and consequent right of appeal) and payment (which do not). However, as the judge noted, the claimant although entitled was now in the position of not being able to insist on being paid in the way he wished, and the resolution of that problem was not a matter for the Upper Tribunal.

Decision in brief

Claimant had diabetes and his mother had to make sure he ate the 'right' food rather than junk food - test in Activity 1 is about the activity of making food ready for eating or cooking using fresh ingredients and heating at or above waist height a one-course meal for one, using fresh ingredients - no reference to dietary content or a suitable meal for the claimant

Decision in brief

Tribunal could not supersede an existing award without identifying a ground for doing so and establishing that it was made out on the evidence - TH v SSWP (PIP) [2017] UKUT 231 (AAC) approved-tribunal decision to remove a component which was not in issue was unfair as no evidence it had consciously considered its discretion and had not given claimant adequate warning

Decision in brief

Claimant objected to registering with Universal Jobmatch because of security concerns about the website - tribunal erred in not establishing whether the amended jobseeker's agreement required the claimant to register with the site or merely use it as part of work search - tribunal's reference to work seeking being a 'full-time task' may have overlooked that jobseeker's allowance rules in fact require three or more jobseeking steps a week

Decision in brief

Also, Upper Tribunal exercising appellate jurisdiction cannot deal with argument based on alleged breach of Equality Act 201 O (although can in exercising judicial review function)- regarding high rate for severe visual impairment, the relevant part of the Equality Act was not in force when the regulations were made - in any case, 'due regard' was had to age issues' - even in the event of all that being wrong, the suggested remedy of disapplying the regulations would bring no benefit to the claimant or anyone else