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Decision in brief

Fact that leaflet ES40JP did not include an express instruction to employment and support allowance claimant to report cessation of disability living allowance (DLA) did not mean that he was not under a duty to disclose it – leaflet does include instruction to report any changes to do with benefits and if claimant or partner starts or stops getting a benefit – leaflet did impose a duty to report cessation of DLA

Summary

The claimant, a Romanian national, worked in Ireland as a self-employed plasterer for about four years. Following a downturn in work, he registered as unemployed and applied for an Irish jobseeker’s allowance. He was refused on the basis that he did not have a right to reside and, in particular, that only a former employee (and not a self-employed person) could retain a right to reside as a worker while unemployed.

The Court of Justice of the European Union held that on a correct construction of the ‘residence’ Directive, 2004/38/EC, a self-employed person in these circumstances does retain worker status. The relevant provision of the Directive was at Article 7(3)(b). That provides that a union citizen who ‘is no longer a worker or self-employed person’ retains worker status where s/he is in duly recorded involuntary unemployment after having been ‘employed for more than one year’ and has registered unemployed. The court first confirmed that ‘involuntary unemployment’ referred both to loss of employment (eg, following dismissal) and where work has ‘ceased due to an absence of work for reasons beyond the control of the person concerned, such as an economic recession’ (paragraph 31).

Further, Article 7(3)(b) could apply both to former employees and self-employed persons. That was on the basis both of the wording of the Article and the objectives of the Directive (paragraphs 36–41). In particular, restricting 7(3)(b) to former employees would ‘introduce an unjustified difference’ between the former employed and self-employed, given the objective, ‘which is to safeguard, by the retention of the status of worker, the right of residence of persons who have ceased their occupational activity because of an absence of work due to circumstances beyond their control’ (paragraph 42).

Summary

The claimant, on transfer from incapacity benefits to ESA, was held to score 0 points in the work capability assessment. Therefore, she was not entitled to ESA. Her appeal to the First-tier Tribunal was unsuccessful. Although the tribunal did award her 9 points in the mobilising descriptor, that was insufficient to result in her having limited capability for work. Her appeal to the Upper Tribunal included an argument that the tribunal erred in ignoring her award of personal independence payment (PIP), which was at both components at the enhanced rate.

Judge Poole QC refused the claimant’s appeal. On the facts of the case, the tribunal had not erred in proceeding without considering the evidence of the PIP award. Firstly, the judge noted that in AG v SSWP (ESA) [2017] UKUT 413 (AAC) it had been noted that there was in general no reason why a tribunal could not rely upon the absence of an adjournment request in order for further evidence to be obtained where the claimant had an experienced welfare benefits representative. In the present case, the claimant had such a representative, who made no request for an adjournment to get the PIP evidence, including when addressed at the start and end of the hearing, and despite the fact that the tribunal mentioned PIP and asked representatives if they had anything to say. In these circumstances, held the judge, the tribunal did not err in failing to adjourn (paragraphs 8–11).

Further, although the judge admitted that the PIP evidence ‘might have had some relevance’, that did not mean that the tribunal was unable to decide the case lawfully and fairly without obtaining it. The PIP evidence was just one type of potentially relevant further evidence. On the facts of the present case, the tribunal had a significant amount of medical and other evidence including previous medical reports. Overall, the judge considered that there was already sufficient evidence for the tribunal to support the facts it found and the conclusions it reached (paragraphs 13–17).

Comment from CPAG

Despite the judge’s reasoning, many will find it surprising that a First-tier Tribunal considering the work capability assessment could apparently be uninterested in the fact that a claimant is entitled to the enhanced rate of both components of PIP. Nevertheless, the findings about reliance on an experienced representative (as made in AG) again underline the need from representatives for clear requests for adjournment to get missing evidence which are considered relevant.

Summary

The claimant was found not to have limited capability for work, a decision upheld by the First-tier Tribunal. The claimant’s appeal rested in particular on the argument that, due to her latex allergy, there was a ‘substantial risk’ to her health should she be found not have limited capability for work, and that therefore she qualified under regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008 No.397.

Judge Poole QC refused the claimant’s further appeal. The tribunal had not erred in holding that the substantial risk provision did not apply to the claimant. Regulation 29(2)(b) had to be read with regulation 29(3), which provides that the exceptional circumstance does not apply where the risk ‘could be reduced by a significant amount by…reasonable adjustments being made in the claimant’s workplace; or the claimant taking medication to manage the claimant’s condition where such medication has been prescribed by a registered medical practitioner treating the claimant’.

Applying that, the tribunal found both that the employer could make appropriate action to minimise the risk, and that the claimant had an epipen to deal with an incident, and both of those meant that the risk was significantly reduced. On the facts, the judge held that the tribunal had not erred in law (paragraphs15– 17). The judge accepted the Secretary of State’s submission that considering ‘reasonable adjustment’ meant considering measures which both employer and employee could take (paragraph 11). On the facts, the claimant possessed an epipen which in fact she had never had to use in 16 years. So, although the ‘magnitude of potential harm was great’, there was a ‘low likelihood’ of it occurring (paragraph 15). She was able further to minimise the risk by wearing latex-free gloves and avoiding latex, something which the employer could reasonably contribute to by making adjustments in the workplace (paragraph 16).

Comment from CPAG

Findings about reasonable adjustments are highly dependent on the individual facts of the case. Here, possession of an epipen and the apparent ease of employer adjustment were clearly important. Also, the remoteness of the risk clearly influenced the judge, although it remains very arguable that that should be of little weight where the harm is potentially great.

Summary

The claimant had bipolar affective disorder with features of mania and depression. Having failed the work capability assessment, her appeal to the First-tier Tribunal included the argument that having to stop her current ‘therapeutic work’ and search for work for 16 hours a week was too stressful, and would risk the health of her and her children. The tribunal rejected her appeal, reasoning that the claimant could safely undertake some more hours of work a week in a ‘low-skilled occupation’ without incurring a risk.

Judge Bano allowed the claimant’s further appeal and remitted the case to a new tribunal. The tribunal had erred in not adequately considering, under the ‘substantial risk’ rule at regulation 29(2)(b) of the Employment and Support Allowance Regulations 2008 No.794, the risks to her health of a finding that she did not have limited capability for work. The tribunal had considered the kind of extra work that the claimant could do. But the judge held that ‘it may be necessary to consider not only the nature of the work which a claimant may be able to carry out, but also the effect on the claimant’s health of any compulsion to carry out that work’ (paragraph 8). More specifically, ‘I consider that in the case of claimants with fragile mental health the possible effects on a claimant of any compulsion to perform a particular type of work may have to be taken into account when considering regulation 29(2)(b)’ (paragraph 9).

The judge noted that a different approach had been taken by Judge Lane in MW v SSWP (ESA) [2015] UKUT 665 (AAC), where she held that – apart from risks arising from the decision itself and those arising from travelling to and from work – only the risks arising from the work itself were to be taken into account. Judge Bano did not consider it necessary to ‘reconcile the tension’ between that and other cases (notably IJ v SSWP (IB) [2010] UKUT 408 (AAC)) which did consider the risk from compulsion to look for work potentially relevant. However, the judge did say the necessary inquiry into substantial risk ‘can only be sensibly undertaken if full account is taken of risks to a particular claimant to resulting from any compulsion to under the work because of an element of ‘conditionality’ in the relevant benefits regime’ (paragraph 10).

Comment from CPAG

Although it does not explicitly disapprove MW v SSWP, the present decision is in very clear disagreement with it. The conflict may need to be resolved by a later decision of the Upper Tribunal. In the meantime at least, it is now arguable that the weight of authority is with the present decision and IJ v SSWP.

Summary

This decision of the Court of Justice of the European Union results from a referral by the UK Supreme Court of a challenge to the decision of the Court of Appeal in this case (MB v Secretary of State for Work and Pensions [2014] EWCA Civ 112). The Court of Justice holds that rules which had in effect required that a transsexual person must have annulled her/his existing marriage before s/he could become entitled to a retirement pension at an age applicable to her/his acquired gender were unlawful.

The Court of Appeal had held that the requirement (in place until 10 December 2014) for a transsexual person to have annulled her/his marriage before s/he could acquire a full gender recognition certificate resulted in a lawful decision that the claimant, who had not annulled her marriage, was not entitled to be treated as a woman for retirement pension purposes, and therefore could not acquire a pension at the age of 60. The claimant, a male to female transsexual who remained married to a woman, was therefore held to be not entitled to a pension at that age. The Court of Justice held that was wrong under European law. European provisions on sex discrimination (in Council Directive 79/7/EEC) must be interpreted as precluding rules that required a transsexual person who had changed gender not only to fulfil ‘physical, social and psychological criteria’ but also to satisfy a condition of not being married to a person of their acquired gender in order to be entitled to a state retirement pension.

The Court noted that EU member states, when exercising their competence regarding civil status and legal recognition of gender change, must comply with EU law in particular with rules about non-discrimination (paragraph 29). In the present case, the requirement for the claimant to have annulled her marriage before becoming entitled to a pension as a woman was in contrast, regarding someone who changed gender after marrying, with persons who had retained their birth gender and were married, and who could get a pension irrespective of their marital status (paragraphs 36–37). The Court held that constituted direct (ie, unlawful) discrimination on grounds of sex, and is prohibited by Directive 79/7 (paragraphs 48–52).

Note from CPAG

The coming into force of relevant parts of the Marriage (Same Sex Couples) Act 2013, on 10 December 2014, meant that from that date marriage annulment was no longer required as a condition of entitlement to a full gender recognition certificate.

Summary

In this judicial review decision, the High Court held that, in the case of severely disabled claimants who were obliged to claim universal credit (UC) after moving house, the lack of transitional protection to the severe disability premium (and enhanced disability premium) in the former ‘legacy’ benefit was unlawful.

The claimants had both been entitled to income-related employment and support allowance (ESA) and housing benefit (HB) that included the severe disability premium (SDP) and enhanced disability premium (EDP). When they moved to a new local authority housing area, their HB ended and (since they had moved to a UC full service area) they were obliged to claim UC instead, so also terminating their income-related ESA. UC includes neither the SDP nor the EDP, and as there are no transitional protection rules in such ‘natural migration’ cases, the claimants were significantly worse off.

Mr Justice Lewis held that in these circumstances the lack of transitional protection was unlawful. The migration to UC of disabled claimants entitled to the SDP and EDP who move to another local authority housing area without considering the need for any transitional protection was ‘manifestly without reasonable foundation’ (paragraph 86). Further, although this unlawful discrimination was not simply on the basis of disability (as the severely disabled person who moved within the same local authority area did not naturally migrate to UC), there was discrimination between the severely disabled who moved to a new local authority area (the judge considered these to constitute a ‘status’ for the purpose of the discrimination rule at Article 14 of the European Convention on Human Rights) and those that did not. Therefore, the judge issued a declaration of a breach of the claimants’ human rights. It was now open to the Secretary of State to decide an appropriate remedy (paragraphs 88–92).

Note from CPAG

The Secretary of State is appealing. Despite that, a week in advance of this decision, the Secretary of State announced that, to support the transition for individuals with substantial care needs living alone and receiving SDP, ‘we are changing the system so that these claimants will not be moved to Universal Credit until they qualify for transitional protection’ as well as an ‘on-going payment’ to such claimants who had already migrated. Draft rules on transitional protection have now been issued. 

Decision in brief

On the facts, claimant had reason for late application for statement of reasons (poor health and lack of access to advice) – in the ‘interests of justice’ for permission to appeal to be granted as evidence indicated that the Secretary of State had failed in her duty to supply the tribunal with full adjudication history

Decison in brief

In applying to withdraw her appeal to the Upper Tribunal, the Secretary of State accepted that 

‘an EU citizen who retains worker status by virtue of reg.6(2)(b) of the Immigration (European Economic Area) Regulations 2006…will not lose that worker status merely because his or her JSA is disallowed on the grounds of “not actively seeking work”’

Note from CPAG

This decision is merely a consent to withdraw an appeal rather than a fully reasoned and binding decision of the Upper Tribunal. However the Secretary of State’s concession is noteworthy. 

Thanks to Joe Power of Kirklees Citizens Advice and Law Centre for sending us this decision.

Decision in brief

‘Dependence’ and need for support to be material – linguistic support in the form of translation at medical and other appointments – not a form of material support – neither is emotional or social support – material support is that concerned with the physical necessities of life

Decision in brief

Prior to rule change on 16 November 2017, no definition of the ‘amount of any income foregone’ in regulation 18 of the State Pension Credit Regulations – where the assets of the plan were less than the claimant’s initial investment, withdrawals from the plan were capital and could not be notional income – from 16 November 2017, rule change provided that the ‘amount of income foregone’ is the amount of an annuity which may have been purchased with the fund

Decision in brief

Interview was for 9am but claimant said he only received the notification letter in the afternoon – it is inherent in the nature of a notification that can lead to a sanction for failure to comply that it does not take effect unless and until it is received – whether it was received on time is a question of fact – if it was not, then the issue of good reason for not attending does not arise – absence of a history of undelivered mail does not necessarily undermine the claimant’s case