CPAG search

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)

Decision in brief

Court of Justice of the European Union (CJEU) decision in Brey requires a personalised assessment of whether claimant would be a burden on the social assistance system - subsequent decisions of CJEU in Dano, Alimanovic, Garcia-Neto and Mirga do not alter that, as they are about different rights to reside, and in particular do not concern claimants with comprehensive sickness insurance and a previous record of self-sufficiency

Decision in brief

Tribunal did not err in failing to treat them as a single 12-month period and in not considering the claimant's entitlement in that period as a whole - the 50 per cent of the time rule, by contrast, applies to descriptors rather than component or rate, and applies to the 12-month 'required period' as a whole

Comment from CPAG

Similar reasoning, though without reference to this decision, applied in DO v SSWP [2017] UKUT 115 (AAC) (3 March 2017) (file number CPIP/1673/2015). There, a cancer patient satisfied the 50 per cent requirement for descriptors during the 'required period' but, following surgery, did not satisfy the separate 'required period condition' as he did not require sufficient assistance throughout the nine months after his claim.

Decision in brief

'Living in' the CTA not defined and words must be given natural meaning - not a requirement to have actually been in the CTA throughout that period - temporary absence can be taken into account-factors like reasons for absence, previous residence and maintenance of accommodation ln the CTS while abroad all relevant- claimant who was clearly habitually resident and was then temporarily absent for two months to care for sick relative not excluded by the test - but the requirement is not contrary to European law

Note from CPAG

This is a decision of the Northern Ireland Commissioners and therefore not formally binding in Great Britain. However, it is of persuasive authority and has been highlighted by the Upper Tribunal.

Summary

The claimant was awarded personal independence payment (PIP) at the enhanced rate of the daily living component. The claimant's appeal challenged his points score in both the daily living and mobility components, even though he could not actually achieve a higher award in the former. The claimant did not attend, and the tribunal adjourned. The adjournment notice said that the tribunal could maintain the existing award, increase it or reduce or remove it, that the claimant may wish to take advice and had the option of withdrawing his appeal. The claimant maintained the appeal and said he wished for a hearing on the papers. The First-tier Tribunal proceeded, and reduced the daily living component from the enhanced rate to the standard rate.

Judge Bano allowed the claimant's further appeal and substituted a decision that the claimant was entitled to PIP at the enhanced rate of the daily living component. On the facts, the tribunal had erred in failing to reconsider whether to adjourn the appeal so as to allow the claimant to attend an oral hearing (paragraph 12-15). ln R(IB) 2/04, a Tribunal of Commissioners referred to a need for a Claimant to have 'sufficient notice' of a tribunal's intention to consider making an adverse decision. The adjournment notice may have been sufficient notice of the tribunal's general powers but 'at no point was the claimant made aware of the specific concerns of the tribunal' that only clearly emerged at the hearing on the papers (paragraph 12).

In the claimant's absence, the practical difficulties of proceeding might have led the tribunal to adopt the suggestion in R(B) 2/04 that it should be left to the Secretary of State whether to supersede so as to reduce the award (paragraph 13). But assuming that the tribunal's real doubts about the award only emerged in the course of the hearing, it was under a continuing duty to keep the matter of adjournmentto.allow.an oral hearing under review (paragraph 14). Although the claimant had requested a hearing on the papers, it would have been clear that the appeal against the points for the daily living component was misconceived, and when the tribunal formed the view that he was at risk of losing the award, it came under a renewed duty to consider an adjournment so that the risk could be fully explained to the claimant (paragraph 15).

Comment from CPAG

The facts of this case may be contrasted with those in MW v SSWP (PIP) [2016] UKUT 540 (AAC), in which a tribunal did not err in failing to adjourn where the claimant had a representative who consented to proceeding and did not request an adjournment. Even so, the present decision clearly indicates that a statement of the tribunal's powers in general terms is not sufficient to provide 'sufficient notice' of an intention to consider an adverse decision. It Is explicit that in the absence of such notice, there is a continuing duty to consider an adjournment.

Summary

The claimant lived in a UC 'live service' area - ie, one in which gateway conditions apply. When he attempted to claim jobseeker's allowance (JSA). he was redirected to claim UC instead. In answer to the question in the online claim process, 'Are you expecting take- home pay of £330 or more in the next month?', the claimant answered 'yes', because he simply did not know whether he would be paid that amount and thought that was the safest answer. The consequence was that the computer system told him he could not claim UC. Having attempted to claim JSA again, he was instructed to claim UC again and this time answer 'no' to the question about pay. The claim was successful, but was not backdated to the earlier attempt. The First-tier Tribunal dismissed the claimant's appeal.

Judge Rowland dismissed the claimant's further appeal. It was a 'gateway condition' of being able to claim UC that a single claimant must declare that in the next month her/his earned income is not expected to exceed £330; the on line question was clearly intended to allow the claimant to make that declaration by answering 'no' (paragraphs 14-15). It was true that the online question was apt to confuse someone who, like the claimant, simply did not know what her/his expected income was, and the Secretary of State may wish to consider amending either the question or the gateway condition, or both (paragraphs 25-29).

However, that did not permit backdating of the claim. The relevant rule was at regulation 26 of the Universal Credit, Personal Independence Payment, Jobseeker's Allowance and Employment and Support Allowance (Claims and Payments} Regulations 2013, No.380. The part of that rule potentially in issue was the provision at subparagraph (3)(d), allowing backdating of up to a month where the claimant was unable to claim 'because the official computer system was inoperative'. In this case, the computer system worked property on the date the claimant first attempted to claim and so cannot be regarded as having been inoperative. 'Whatever defects there may have been in the claim form,' said the judge, answering 'yes' to the question about expected earned income 'was clearly not a declaration sufficient to satisfy the gateway condition and so the claimant was not eligible for universal credit' (paragraph 37).

Comment from CPAG

Clearly, this is a harsh outcome for the claimant. It reflects not only the complexity created by the gateway conditions in live service areas, but also the very limited circumstances in which a UC claim can be backdated. The judge pointed out that, unlike in some other benefits, there is no UC provision allowing an expressed intention to claim to be sufficient.

Summary

The claimant was a single parent with three children. Her working tax credit included childcare costs. Following notification by her of a reduction in childcare costs, HMRC asked for further information. Before the claimant responded (including receipts from her childcare providers), HMRC reduced entitlement, and in a final decision also refused to accept evidence about some of the claimant's childcare costs, without being specific as to why. Only after the claimant had appealed did HMRC indicate, in a response to the appeal, that it considered bank statement evidence showed that some of the childcare costs were not genuine. The First-tier Tribunal dismissed the claimant's appeal, holding on the papers that the HMRC decision was 'a reasonable one for HMRC to have made'.

Judge Hemingway allowed the claimant's appeal and remitted the case to a fresh tribunal. The tribunal had erred in not appreciating that it was making its own decision on the basis of the evidence, rather than merely reviewing the HMRC and the 'reasonableness' of the decision it made (paragraphs 18-19). Further, the tribunal was not merely required to 'rubber stamp' the claimant's preference for an appeal on the papers; given that HMRC raised issues about the claimant's credibility, in particular after the appeal had already been lodged and a request for a hearing on the papers made, the tribunal erred in failing to explain why it was not adjourning for an oral hearing (paragraph 20). Further still, the tribunal's very brief reasoning as to why it found the point about conclusions from bank statements convincing, when the claimant had already sent relevant receipts to HMRC, was 'simply inadequate' (paragraph 21 ).

The judge commented on the 'inadequacy of the appeal response prepared by Her Majesty's Revenue and Customs' to the First- tier Tribunal, and additional concerns 'regarding a failure on the part of HMRC to put salient key aspects of its case to the claimant prior to the production of the appeal response' (paragraph 1). 'Perhaps,' said the judge, 'HMRC might wish to aim to do better in future.' As for the tribunal, it might well have thought an oral hearing appropriate given the late taking of points of potential importance.

Comment from CPAG

Given the recent history of inadequate HMRC responses to First-tier Tribunals (see for example AK v HMRC (TC) [2016] UKUT 98 (AAC) and DG v HMRC and EG (TC) [2016] UKUT 505 (AAC)), whether HMRC really does wish to aim to do better may be considered at best unclear. In any case, First- tier Tribunals need to be alive to the possibility of severe inadequacies in HMRC responses, and act accordingly.

Summary

The claimant was married but, although not divorced, had been separated from her husband for four to five years. HMRC decided that she was not entitled to tax credits as a single person, as she remained part of a couple. The First-tier Tribunal dismissed her appeal, holding that the claimant's separation was not (as required by the relevant law, at section 5(5A)(a)(ii) of the Tax Credits Act 2002) likely to be permanent.

The First-tier Tribunal cited that the claimant maintained a joint bank account with her husband (he had poor budgeting skills and there was a joint mortgage), that her husband continued to help her with her health problems, occasionally sleeping on the sofa, that he used the claimant's address for post (he had not found his own permanent accommodation), and there had been no matrimonial proceedings.

Judge Jacobs allowed the claimant's appeal and substituted a decision she was entitled to tax credits as a single person. There was no doubt that the claimant was separated from her husband. But the tribunal had erred in not finding that the separation was likely to be permanent, and in the conclusions they drew from the facts of the claimant's case. It would be wrong to reason that because a couple remain married, their separation cannot be permanent (paragraph 11). Although a couple's continuing involvement can indicate that they are not actually separated, it is wrong to conclude that continuing involvement is necessarily an indication that the separation is not likely to be permanent: 'the model of divorced couple as warring combatants is not universal' (paragraph 13). In this case, the parties had been separated for four or five years, and there was no reason to doubt their explanation for why they had arranged their lives as they had (paragraph 14).

Summary

In these joined cases (concerning claimants with epilepsy and deafness), a three-judge panel of the Upper Tribunal considered the meaning of the test of whether a claimant can carry out an activity 'safely'. The judges disapproved previous case/aw to the effect that the test was of whether harm was 'more likely than not', and held that rather the test should be whether there was a 'real possibility' of harm, having regard to the nature and gravity of the feared harm.

The claimants were all appealing against First-tier Tribunals who, in refusing to award points for needing supervision, had referred to the infrequency or remoteness of the risk occurring and referred to the need for the descriptor to be satisfied most of the time. Before the Upper Tribunal, previous caselaw authority supporting that approach to the meaning of ability to carry out an activity 'safely' (by Judge Hemingway in CE v SSWP (PIP) [2015] UKUT 643 and by Judge West in CPlP/3006/2015) was cited by the Secretary of State. The three-judge panel also had reference to the decision of Judge Bano in SB v SSWP [2016] UKUT 219 (AAC), which also supported that approach, but held that where supervision was at issue, a separate approach must be taken which had regard to the possible seriousness of the risk.

Lady Carmichael and Upper Tribunal Judges Knowles QC and Markus QC allowed the claimants' appeals and held that the previous caselaw authority had taken the wrong approach to the meaning of 'safely'. That a claimant is only assessed as being able to carry out an activity ifs/he can do so 'safely' is provided for by regulation 4(2A)(a) of the Personal Independence Payment Regulations 2013, No.377. Judge Bano had been wrong in SB to posit a distinct approach to descriptors concerning supervision - regulation 4 applied to the assessment of each and every descriptor including those concerning supervision (paragraphs 26-28). Judges Hemingway and West had been wrong to hold that the approach to the meaning of 'safely' in regulation 4 was only about the likelihood of an event occurring and not the nature of the risk or harm. Considering the legislation as a whole, and with reference to House of Lords authority in the context of protecting people against future harm in other contexts, considering whether an activity can be carried out 'safely' required consideration of whether 'there is a real possibility that cannot be ignored of harm occurring, having regard to the nature and gravity of the feared harm in the particular case'. It followed that 'both the likelihood of the harm occurring and the severity of the consequences are relevant' (paragraph 56).

Summary

The claimant had had corrective surgery on his left eye in the form of a retinal implant. His appeal to the Upper Tribunal centred on the argument that the implant was an 'aid or appliance' for PIP Activity 8 (reading and understanding) and that therefore he fell to score points in that activity.

Judge Gray rejected the claimant's appeal, holding that the First-tier Tribunal had not erred in refusing to score the claimant points under Activity 8. Straightforwardly, that was because the tribunal correctly held that, in any case, the claimant was able to read within the terms of Activity 8 with his right eye alone. Consequently, the 'baseline' descriptor of 0 points applied (paragraphs 24-26). Formally, that left the question of whether the implant in the claimant's left eye was an 'aid or appliance' an unnecessary one for the judge to answer. However she decided to make some obiter (ie, non-binding) comments.

The argument that a retinal implant is a device which improves or replaces a physical function and is therefore an aid or appliance was 'in straightforward language terms, unimpeachable' (paragraph 42). But this could lead to absurdity. If, for example, an artificial heart valve or stent counted as an aid or appliance, multiple points could apply for 'using' it in a variety of activities included preparing food, bathing and dressing, where the claimant had no 'actual problem' with any of those things. Such absurdity could not have been the intended outcome of the PIP scheme. Internal implants were therefore not of themselves 'aid or appliances' for PIP. This was in contrast to a 'prosthesis' which was specifically included in the definition of an aid or appliance, and in common sense terms clearly related to impaired function (paragraphs 42-47). However, the judge explicitly exempted cochlear implants from her observations. ln the present case, there was a collective lack of knowledge about the way in which they operated, whether they could be removed, etc, and were not included even in the judges obiter comments (paragraph 49).

Comment from CPAG

This is an early, if not the first, decision about implants and PIP in what may well become a long line of authority on the subject. Others are very likely to arise, in the general context because the judge's observations are obiter, and in the specific context of cochlear implants because of their clear exclusion from this decision.

Summary

The joined cases in this decision concerned claimants whose main argument was that they should be treated as having limited capability for work-related activity (and therefore put in the support group) under the 'substantial risk' rule at regulation 35(2) of the Employment and Support Allowance Regulations 2008, No.397. On the facts of the cases, what was specifically in issue was the evidence that should be considered about the assessment of risk where the claimant's work-related activity would be applied via the 'Jobcentre Plus Offer' rather than an external provider.

Judge Wright began with the central importance of the decision of the three-judge panel in IM v SSWP [2014] UKUT 412 (AAC); [2015] AACR 10. That was authority on what information should be provided to a First-tier Tribunal by the Secretary of State where the assessment of risk under regulation 35(2) was in issue. This is a list of work-related activity available in the geographical area relevant to the claimant, identification of the least and most demanding types of activity, and what types of activity the particular claimant may be required to undertake (paras 3, 24-29). IM was binding in the present cases. Official guidance (Memo DMG 17/15) was largely accurate in summarising the requirements in IM, although was wrong to say that where the claimant had also been found not to have limited capability for work, there was no need to identify the most and least demanding types of work- related activity (paragraphs 84-90).

In the present cases, it emerged that the claimants' work-related activity fell to be applied via the 'Jobcentre Plus Offer' - ie, through interviews with work coaches in jobcentres and 'flexible' interventions and support- rather than via an external provider. The DWP provided evidence that the Jobcentre Plus Offer applied in cases where the claimant has limited capability for work and was not due to be reassessed for more than 12 months, or in any case where the claimant was awarded contributory ESA (paragraphs 48 and 93). It was not disputed that in both cases the tribunal erred in failing to have any adequate or relevant evidence before it about work-related activity under the Jobcentre Plus Offer (paragraph 66). Judge Wright held that any list of work-related activity (under the Jobcentre Plus Offer or not) had to specifically identify the most and least demanding work-related activity in the claimant's area and then, as a second stage, identify the range of work-related activities from the list the individual claimant was capable of performing and might have reasonably been expected to undertake (paragraphs 106-112). The judge seemed to accept official guidance that the list provided in Jobcentre Plus Offer cases could not, for practical reasons, be a complete list, and could consist of examples of the m.ost and least demanding types of work-related activity, before identifying the specific types of work- related activity the claimant could undertake without risk (paragraph 94).

Comment from CPAG

The judge made extensive reference to the difficulty of getting precise information about the Jobcentre Plus Offer from the DWP. Historically, that had at times 'bordered on the farcical', and the overall impression was that it had had to be 'dragged out of the DWP'. lt is to be hoped the situation will improve: tribunals that proceed without it run a high risk of error.

Summary

The claimants in these joined cases were both European Union nationals and self-employed when they became pregnant. Both continued work for a while but eventually-'took maternity leave', returning to some economic activity after childbirth. They were both refused child benefit on right to reside grounds, HMRC' deciding that, in both cases, the claimants had ceased self-employment during maternity and so were not workers by the time of their claim. HMRC did not consider that the decision of the Court of Justice of the European Union (CJEU) in Saint-Prix Case C-507/12, could apply in these self-employment cases. The First-tier Tribunal allowed both appeals on the basis that the claimants had remained self-employed but could in any case rely on Saint-Prix.

Judge Ward allowed both further appeals by HMRC, on the basis that in both cases the fact finding by the tribunal was inadequate to conclude that the claimants had remained self-employed throughout (paragraph 12). In GP, however, the judge made further findings on the evidence before him and concluded that the claimant had indeed remained self- employed at the time of her claim (paragraphs 27-32). The claimant had been in 'genuine and effective' work before maternity, then took steps to maintain it while not actually working, and anticipated returning to work (paragraph 30). For that reason, the possible application of Saint-Prix to her case was hypothetical only and the judge declined to consider it.

In HD, the judge held that on the facts of the case that the claimant had ceased to be a worker during her maternity. In her there had been some measure of self-employment throughout, but a combination of the pregnancy and the effects of a house move meant that, for the judge, the work ceased to be 'genuine and effective' and never regained its earlier status (paragraphs 20-22). That therefore led to the question of the possible application of the decision in Saint-Prix. However, the judge did not make a substantive finding. There has been a reference to the CJEU from the Court of Appeal (Ireland) in Florea Gusa v Minister for Social Protection, Attorney General, Case C-442/16. That involves a possible reconsideration of whether a self-employed person could retain worker status while registered as a jobseeker. The judge considered that of sufficient relevance, therefore, to make only an interim decision in this case and to direct further submissions on whether a final decision should be stayed pending the outcome in Florea Gusa.