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Decision in brief

Tribunal also erred (regarding daily living Activity 9) in placing too much emphasis on claimant’s ability to engage with other people face to face in the specific context of when in a Warhammer games shop: ‘Just because he was found to be able to engage face to face with people he doesn’t know at the Warhammer shop, it doesn’t necessarily follow that he would be capable of engaging with unfamiliar people face to face more generally (including with people who are not part of the wargaming subculture).’

Decision in brief

First-tier Tribunal hearing the appeal regarding the original claim was unaware of the withdrawal of the second claim and so limited the period of the award it made to the start of the decision on the second claim – inadvertent breach of the rules of natural justice

Decision in brief

Nigerian primary carer of a European child with a permanent right to reside – child had been a ‘Chen’ child (ie, with right to reside as a self-sufficient person) but had eventually acquired a permanent right to reside – claimant was the child’s primary carer – his derivative right to reside (ie, to make the child’s right effective), given that the child had a permanent right rather than a ‘Chen’ right, did not require him to be a self-sufficient person (ie, with sufficient resources and comprehensive sickness insurance cover)

Decision in brief

Her mental health problems included (including prescription of antipsychotic and antidepressant medication) rendered her a ‘vulnerable adult’ for the purposes of the hearing before the tribunal (RT v SSWP (PIP) [2019] UKUT 207 (AAC)) – this made the Senior President of Tribunals’ Practice Direction on ‘Child, Vulnerable Adult and Sensitive Witnesses’ relevant – tribunal failure to consider that (or why it considered that it did not mean that additional measures were required) was an error of law

Decision in brief

Legislation requires average of 10 hours or more work per week for five consecutive weeks or more – on facts, claimant did not work at this level for five weeks in the relevant period, and his REA therefore correctly ceased

Summary

The claimant, a lone parent, was an Algerian national with young children who were British nationals. She had a right to reside (or at least was assumed to have one) as a third-country national who was the parent of European nationals who would otherwise have to leave the territory of the European Union (EU), on the basis of the decision of the European Court of Justice in Ruiz Zambrano v Office National de l'Emploi [2012] QB 265. She was receiving limited financial support and housing assistance under the Children Act 1989. However, due to regulations ('the amending regulations') introduced from 8 November 2012 and which implemented the Zambrano decision in domestic legislation, such a right to reside did not give entitlement to social security benefits, tax credits or housing from the local authority. The claimant challenged the legality of the amending regulations on the basis that they undermined the practical effect of the Zambrano decision and discriminated against Zambrano carers and their EU national children, and so were unlawful as in a breach of Articles outlawing discrimination in the Treaty on the Functioning of the European Union ('the Treaty'), the Charter of Fundamental Rights of the European Union ('the Charter'), the European Convention on Human Rights ('the ECHR') and also the public sector equality duty at section 149(1) of the Equality Act 2010.

In the High Court, Judge Supperstone rejected all those arguments, and held that the amending regulations were not unlawful. The main reason for doing so was that he accepted the submission of the Secretary of State that the claimant's arguments failed to appreciate the narrowness of the Zambrano right, which was limited to a right to reside in the UK and to work here (paragraphs 32-4). The judge also noted that in any case the claimant was not asserting that she would be forced to leave the UK or EU if she was not given entitlement to benefits and local authority housing, and that in The Queen on the application of Sanneh v Secretary of State for Work and Pensions and others [2013] EWHC 793 (Admin) [a decision regarding the law before the amending regulations came into force], the High Court had ruled that Zambrano did not in such circumstances confer any right to social security benefits (paragraphs 37-41).

Even if it were allowed that the amending regulations were indirectly discriminatory, as having a disproportionate effect upon women, they were justified - with reference to the Secretary of State's evidence regarding the significant cost to the public purse were Zambrano rights to give rise to rights to social benefits. Taking that into account, the amending regulations were lawful as a 'proportionate means of furthering the legitimate aim of protecting scarce public resources, including from individuals who move to, or remain in, the UK in order to take advantage of its welfare system'. The same reasoning applied regarding the alleged discrimination under the ECHR (paragraphs 54-59). Regarding the Charter, the judge held that the relevant articles did not create any general entitlement to social security where there was no European or domestic law right to those benefits (paragraph 70). Regarding the public sector equality duty, the amending regulations were 'intended to maintain what was the status quo for most third country nationals', and the Equality Analysis and Equality Statements show that the Secretary of State was aware of the equality implications, with the result that there was no breach of the duty (paragraphs 76, 83-4).

Decision in brief

Overpayment paid to landlord caused by incorrect information (that he was living in a flat and not a bedsit) about the property submitted by the claimant on a change of address form – the claimant was erroneously not listed as a party to the appeal – although the claimant had been accompanied by the landlord’s agent, that was not enough to found a decision that the overpayment was recoverable only from the landlord – on the facts, overpayment did not arise due to misrepresentation by landlord (but rather, by the claimant), so is not solely recoverable from him – landlord did fail to notify the claimant’s change of address, but that was not a ‘material’ change of circumstances that caused the overpayment – rather it was the claimant’s misrepresentation on the change of address form and therefore the overpayment was recoverable only from him

Decision in brief

The claimant was in receipt of an Irish widow’s contributory pension (‘IWCP’) – the IWCP (which was not time limited) was correctly classified as ‘unearned income’ under regulation 66(1)(c) of the Universal Credit Regulations 2013, as analogous to a UK widow’s pension – no requirement for the claimant to be entitled to a UK widow’s pension for the IWCP to be ‘analogous’ to it – ‘analogous’ here means ‘similar or comparable in relevant respects’ but does not have to be identical – ‘the essential question is whether the two benefits are similar in terms of their nature and purpose’ – that was the case regarding IWCP and it therefore fell to be taken into account as income in the calculation of her UC

Decision in brief

Claimant relied on Scots law of marriage by cohabitation with habit and repute – that was abolished by section 3(1) of the Family Law (Scotland) Act 2006, but an exception applies where the relationship began before 4 May 2006, as was the case here – however, it is still required that the parties had the legal capacity to marry and where, as in this case, one of the parties (the person now deceased) was still married to an ex-partner, that requirement was not satisfied – the claimant was therefore unable to be married by cohabitation and repute

Decision in brief

Where the claimant’s husband received his category A pension before 17 March 2008, to get a category B pension based on her husband’s contributions, to top up her own category A pension, they had to (and have always had to) make a claim for that category B pension – where the husband received his category A pension on or after 17 March 2008, they do not need to make a claim for the latter benefit – the husband’s own post-2008 category A pension claim will itself trigger an award of the wife’s category B pension where appropriate – that arises from the context and language of the relevant rule at regulation 3(1)(cb)(i) of the Social Security (Claims and Payments) Regulations 1987 – regulation is not in breach of human rights anti-discrimination rules

Decision in brief

Judge declined to decide the question – but was prepared to indicate disagreement with First-tier Tribunal that for dentures to count as an aid or appliance, they must assist with both chewing and swallowing: ‘I have formed what is only an opinion, albeit I have to say a very strongly held one, that for an item to count as an aid or appliance for the purpose of taking nutrition it does not need to assist with more than one of the necessary components’ set out in the definition of ‘take nutrition’.

Decision in brief

Claimant had been entitled to personal independence payment including the mobility component after pension age (65 in the present case) – but that had been removed on review and that decision had not been challenged – although claimant had a deterioration in her mobility aged 68, could not start to get the mobility component again on supersession as that was not a part of the ‘original award’ (ie, her current award) – regulation 27 of the Social Security (Personal Independence Payment) Regulations 2013