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Decision in brief

RJ, GMcL and CS v SSWP; SSWP v RJ [2017] UKUT 105 (AAC) is not authority that someone with cochlear implants who needs to remove them when bathing will always score points under descriptor 4c – RJ said there was an indication of need for supervision in such circumstances, but award requires judgement on the individual facts of the case – but it is not correct to say that a claimant can be expected to minimise risk by limiting the time taken to bathe (EG v SSWP (PIP) [2017] UKUT 101 applied)

Decision in brief

Property jointly owned by claimant and daughter and occupied by the daughter and her son – application of regulation 51 of the Housing Benefit Regulations 2006 – District Valuer valued the claimant’s interest – did not have to provide evidence of the existence of a local market as ‘there is a market for interests that do not allow immediate exclusive possession. That may not be widely known among claimants, but it has been referred to in a number of Upper Tribunal decisions. It may not be easy to provide evidence of that market, but its existence is not in doubt.’

Comment from CPAG

It is not clear that the judge’s view that there is a market for part shares in such circumstances commands widespread assent, at least in the context of regulation 51 and without clear evidence of sales in similar cases (see for example CH/1953/2003, and the commentary in CPAG’s Housing Benefit and Council Tax Reduction Legislation, 2017/18, pp465–6).

Decision in brief

Concession by Secretary of State that lip reading is not an acceptable way to interpret verbal communication – concession accepted in SB v SSWP and that ‘pragmatic approach’ adopted here – as long as Secretary of State continues to make this approach, then tribunals should take same approach – if Secretary of State changes her position, then issue of lip reading may need to be subject of a binding decision of the Upper Tribunal, but not at present

Decision in brief

Although PIP and ESA are separate benefits and there is no question of an award of one binding a tribunal regarding the other, evidence given in respect of one may still be relevant to another – nor is there anything to prevent an argument on one benefit based on an analysis of an award of the other (LC v SSWP [2015] UKUT 32 (AAC) cited and approved) – proper role of the tribunal is to assess the evidence presented to it, and the tribunal should deal with evidence if the claimant or her/his representative has specifically relied on it

Decision in brief

Regulation 12(1)(d) of the Housing Benefit Regulations 2006 – reference to ‘use and occupation’ of the dwelling is to be interpreted according to the decision in R v Bristol City Council ex parte Mrs J Jacobs [2000] 32 HLR 841 (ie, as reference to payments to a landlord, not in respect of a licence to use water) – contrary reasoning in CH/0844/2002 disapproved

Comment from CPAG

In CH/0844/2002, it was also accepted that as ‘mooring charges’ for a houseboat were eligible, that could also cover, under what is now regulation 12(1)(f), both a mooring permit and a boat licence fee payable to British Waterways. That part of the decision was not addressed in the present decision, presumably because it did not arise on the facts.

Decision in brief

Tribunal hearing an appeal against that decision, which decides that there is no entitlement for the year, should not reproduce that as it is legally incorrect – however, where there has since been a final decision for the year under section 18 of the Tax Credit Act 2002, the in-year section 16 decision in any case ceases to have legal effect and cannot still be the subject of an appeal, although any appeal against the section 18 decision can go ahead (LS and RS v HMRC [2017] UKUT 257 (AAC) applied)

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).