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Summary

The First-tier Tribunal had before it evidence that the claimant had been awarded PIP including mobility descriptor 2c for ability to stand and move more than 20 metres but not more than 50 metres. The evidence the Secretary of State used to make that decision was not before the tribunal. The tribunal considered adjourning to get it, but decided not to because the claimant was represented by an experienced representative who did not request an adjournment. The tribunal awarded just six points under the relevant work capability assessment descriptor (ie, for inability to mobilise more than 200 metres) and refused the appeal.

Judge Hemingway allowed the claimant's further appeal and remitted the case to a new tribunal. He accepted a concession by the Secretary of State that, in the particular circumstances of the case, the tribunal erred in failing to make its own decision as to whether or not to adjourn (paragraph 6). However, in obiter (non-binding) comments, the judge said that, in general, a tribunal ought to be able to rely on the absence of an adjournment request where a claimant 'has an experienced representative in the field of welfare benefits law'. But it may be good practice for a tribunal who thinks an application for an adjournment could sensibly be made to ask the representative whether such an application has been considered. In the case of an unrepresented claimant, it is 'highly likely' that the tribunal should not rely on the claimant's 'failure' to seek an adjournment (paragraph 7).

The judge also remarked that to the extent that the claimant's representative may have considered the PIP award to be determinative regarding relevant points in the work capability assessment, that was wrong - the letter confirming the PIP award was evidence of the fact of the award and suggestive that there might be other evidence which could be relevant. But the PIP mobilising test involved a different statutory test and a tribunal is entitled to make its own decision with respect to entitlement to the benefit with which it is concerned (paragraph 9).

Comment from CPAG

Possibly, an erroneous assumption about the effect of the PIP decision on ESA entitlement may have been behind the representative's failure to ask for an adjournment. This decision is a reminder to representatives that PIP decisions may be relevant to ESA but are not binding, and that First-tier Tribunals are generally able to place considerable reliance on the submissions that experienced representatives make, including what is not requested.

Summary

The claimant was a disabled child. He was British but first came to the UK with his mother in May 2014, joining his father and brother who were already here. His claim for DLA was refused on the ground that he had not been present in Great Britain for 104 weeks out of the previous 156- ie, he failed the 'past presence test'. The First-tier Tribunal dismissed his appeal.

Judge Jacobs dismissed the claimant's further appeal. It was argued for the claimant that the test in its application to the claimant was in breach of Article 14 of the European Convention on Human Rights when read together with Article 1 of Protocol 1. Judge Jacobs did not consider that being a disabled child who had previously lived outside Great Britain constituted a 'status' for the purpose of Article 14: past residence did not constitute a defining personal characteristic (paragraph 26). In any case, the judge considered that any discrimination was justified as it was not manifestly without reasonable foundation. The test required a connection with Great Britain that was more than mere presence, and that was not manifestly without reasonable foundation. The period in the past presence test was reviewable, DLA was not the only source of funding for disabled children, and the test did contain some variation of the period according to the age of the child (paragraphs 31-39).

Looking at the evidence as a whole, which included not only an impact assessment (which admittedly did not deal with children specifically) but also a consultation process which expressly included the position of children, the judge was satisfied that the Secretary of State had due regard to the position of children regarding the test, and so had satisfied the public sector equality duty (paragraphs 41-46). For the same reasons, as well as the fact that the test provided for a delay in payment, not outright refusal, and that any savings 'will increase the pot for other purposes, which may be to the benefit of children generally or children with disabilities', the judge considered that the Secretary of State had treated the 'best interests of the child as a primary consideration'. There had therefore been compliance with any duty under Article 3 of the UN Convention on the Rights of the Child (paragraphs 4 7-53).

Comment from CPAG

Given the benefit cap, benefit freeze and two-child limit, some may question the judge's confidence in the Secretary of State's approach and his reference to savings 'increasing the pot' for children.

Decision in brief

'It cannot have been the intention that people from different cultural or religious or ethnic communities with precisely the same disabilities in relation to cooking would have different levels of entitlement to benefit because of their community affiliation'

Comment from CPAG

This decision, although made in December 2015, seems only to have been published on the Upper Tribunal website in August 2017. That may have been because of reference to it in by Judge Gray in SC v SSWP (PIP) [2017] UKUT 317 (AAC) (27 July 2017) (file number CPIP/663/2017). The facts there involved a claimant whose ability to cook was hampered by the presence in the kitchen of her hyperactive son. The judge held (paragraph 15) that 'any difficulties in cooking because of the presence of a small child must be ignored because the test is not concerned with the practicalities of preparing and cooking food, but with the capability of so doing, and, to be relevant, any difficulties must arise out of a physical or mental condition'.

Decision in brief

Where claimants had the opportunity of complying with the requirement (under the Gender Recognition Act 2004) of obtaining a gender recognition certificate before they reached the age of 60, it is not in breach of European Union law (Directive 79ll /EC) for the rules to require them to have such a certificate to be entitled to a pension at age 60, and it is not required that certificates are retrospective in effect - decision in Richards v Secretary of State for Work and Pensions (reported as R(P) 1 /07) not authority that the claimants were entitled to be treated as women without certificates, on the basis of surgery - Richards was about the legal position before the scheme introduced by the 2004 Act came into force, and did not purport to consider what the terms of the scheme might be

Decision in brief

Tribunal erred in concentrating on ability to set an alarm clock and not focusing on the functions involved in 'learning tasks' - activity is about ability to absorb, understand and retain information and not a test of ability to read numbers or words - reference to setting an alarm clock is merely a way of an example - many other simple tasks do not require an ability to read or understand numbers or words

Summary

In these decisions, the Upper Tribunal held that where the Secretary of State refuses to admit a late request for a mandatory reconsideration (ie, made later than one month but within 13 months of the original decision), that still means that he has 'considered' the request and the claimant has a right of appeal against the original decision.

The claimants had both claimed employment and support allowance (ESA) and been refused. Both were outside the basic one-month time limit for requesting a 'mandatory reconsideration' (ie, a revision) - one was five months late and the other was 10 months late. In both cases, the Secretary of State refused to accept that the claimant's circumstances justified undertaking a late mandatory reconsideration, and both claimants had their attempts to appeal against their original ESA decision rejected by the First-tier Tribunal.

In the Upper Tribunal, Mr Justice Charles, Judge Wikeley and Judge Wright had to decide whether the claimants satisfied the so-called 'mandatory reconsideration' requirement. That requirement is that, for there to be a right of appeal, the Secretary of State has, on an application for a revision, 'considered whether to revise' the original decision. The Secretary of State argued that was not satisfied because as a preliminary and separate consideration he had decided not to admit the late request and so had not considered a revision. The claimants therefore had no right of appeal and were limited to challenge by judicial review. The claimants argued they had a right of appeal because, in refusing to admit the late request, the Secretary of State had indeed 'considered whether to revise' the decision, and consideration of whether to admit the late request was not preliminary or separate to that. This for the judges was the 'core point of contention' in the case (paragraphs 35-37).

The Upper Tribunal held that the claimants did have a right of appeal to the First-tier Tribunal. That was as a matter of statutory interpretation of the relevant rules (paragraph 98). The rules setting out the mandatory reconsideration requirement were at section 12(3A) of the Social Security Act 1998 and regulation 3(ZA) of the Social Security (Decisions and Appeals) Regulations 1999, No.991. Bearing in mind the principles of identifying the 'statutory mischief' and beginning with the primary legislation (including with reference to the Explanatory Notes to the relevant Bill), the judges could see nothing that should be interpreted as meaning the right of appeal should be restricted by requiring an in-time application for revision (paragraphs 42-45). The statutory purpose was to give the Secretary of State the 'first opportunity' to change the decision and so avoid an appeal, rather than deprive the claimant of her/his right of appeal merely because her/his late request for a revision (ie, one made after one month but within the absolute 13-month time limit) was not admitted. The correct interpretation of the rules was, therefore, that such a refusal triggers the right of appeal to the First-tier Tribunal (paragraphs 88-90).

Comment from CPAG

Note that the decision simply confers the right of appeal, without leaving it to the First-tier Tribunal to decide whether sufficient reasons for a late application for mandatory reconsideration were made out. See also the article on p8.

Summary

The First-tier Tribunal adjourned with a direction (impliedly subject to the appellant's consent) for the production of the GP medical records. The appellant did not return the consent form and (after a repeat request for consent) the case was listed for disposal without the medical records. The appeal was dismissed.

Judge Wikeley set the decision aside as the tribunal had erred regarding the application of the 'substantial risk' provision at regulation 29 of the Employment and Support Allowance Regulations 2008, SI No. 794. However, he also addressed the question of the appellant's apparent refusal to consent to production of his medical records. Firstly, he was troubled by the suggestion of Judge Mark in EB v SSWP (ESA) [2015] UKUT 358 (AAC) that such a refusal amounted to a breach of the requirement to co-operate with the tribunal. Judge Wikeley said that given the importance that the law attaches to the confidentiality of an individual's medical records - eg, in human rights law (paragraph 17).

Secondly, the reference in EB v SSWP to it being open to a tribunal to draw an adverse influence from such a refusal needed to be treated with some care. As Judge Rowland had explained in SSWP v HS (JSA) [2016] UKUT 272 (AAC), an adverse inference was not a penalty and it was not permissible to draw one merely as a punishment. It may be more appropriate to bear in mind the investigatory nature of the tribunal with the result that the burden of proof was seldom of significance (paragraphs 18-20). In the present case, the claimant had every right to decline to consent to the disclosure of his medical records, but 'he may be making it more difficult for himself evidentially to make out his case' (paragraph 21).

Decision in brief

If through assisting or supervising the other person was actually putting themselves at risk, that supervision or assistance should not be taken into account

Decision in brief

Descriptors 8(a)–(d) refer to ability to read and understand written information in the claimant’s ‘native language’ – BSL is a language without written information – but a claimant may have more than one native language – claimant had grown up being exposed to the English language and could also communicate in English – if there are two native languages but only one has a written component then the test if of the claimant’s ability in that language

Decision in brief

Decision stands in the shoes of the HMRC decision maker – for example, a decision on an appeal against a decision under section 18 of the Tax Credits Act precludes HMRC from making another section 18 decision – but tribunal decision is capable of further and separate HMRC decisions if provided for by the Tax Credits Act – ie, under sections 19, 20 and (arguably) section 21

Note from CPAG

See also the article in Bulletin 264, p8

Decision in brief

Test is of ability to engage with people generally, not just those the claimant knows well – ability to use a phone to send texts does not demonstrate an ability to engage with other people face-to-face

Decision in brief

Terms of regulation 16 of the Immigration (European Economic Area) Regulations 2016 not unlawful in requiring this