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Decision in brief

Benefit entitlement on basis of exception in reg 2(1) and para 3 of the Schedule to the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000, No.636 could not apply – alternative argument of derivative right to reside under the Immigration (European Economic Area) Regulations relied on ‘Zambrano’ rights and did not afford benefit entitlement.

Decision in brief

 Competent state in these circumstances is the state where the claimant is habitually resident. See also the note to GK v SSWP (CA) [2019] UKUT 87 (AAC).

Decision in brief

Evidence of regular failure by Secretary of State to provide DLA evidence even when directed to do so is very concerning – compliance with directions is mandatory and failure can be referred to Upper Tribunal for consideration for fine/imprisonment.

Decision in brief

Claimant subsequently failed to disclose increases in the pension – recovery of the overpayment was not restricted to an amount equivalent only to the annual increases, rather than the full amount of the pension – claimant had been placed under a clear and unambiguous duty to report changes in the amount of the pension – the amount recoverable is the full amount that would not have been paid but for the failure to disclose.

Decision in brief

Claimant entitled to contributory employment and support allowance and so ‘insured’ for purpose of old age – may still be able to export if not ‘insured’ but not explored on the facts of this case. See also the note to GK v SSWP (CA) [2019] UKUT 87 (AAC)

Decision in brief

CA is a separate benefit from the attendance allowance paid to the disabled person and cannot be treated as part of a single benefit with it so as to allow the competent state for attendance allowance to be competent also for the CA.

Note from CPAG 

This is one of a series of five decisions made by the same judge (Judge Jacobs) involving issues relating to European Union (EU) co-ordination rules where the claimant has become habitually resident in another EU state. The individual decisions are freestanding, but the judge provides a helpful Appendix summarising the decisions in all five. See also KR v SSWP (DLA) [2019] UKUT 85 (AAC) and SSWP v TG (DLA) [2019] UKUT 86 (AAC). Two of the five decisions concerned regulation (EEC) 1408/71, which was replaced by regulation (EC) 883/04 for claims made on or after 1 May 2010. Those decisions are: JG v SSWP (CA) [2019] UKUT 83 (AAC) and SSWP v MC (DLA) [2019] UKUT 84 (AAC).

Decision in brief

Medical report regarding industrial injuries disablement benefit assessment made after ‘case discussion’ with another person but details of that person’s identity and substance of the discussion not disclosed – tribunal erred in failing to adjourn to get that information – issue primarily one of fairness to the claimant and it is irrelevant that the tribunal considered the missing information immaterial.

Decision in brief

It is possible for this to apply to a formerly self-employed person as well as to a formerly employed person (Court of Justice of the European Union decisions in C-442/16 Gusa and C-483/17 Tarola cited).

Decision in brief

Scope of the definition of vulnerable adult is such that it will apply to most appellants in personal independence payment, employment and support allowance and industrial injuries appeals – in this case, claimant had autistic spectrum disorder and tribunal should have considered the Direction – but in many cases will not be a material error of law not to follow the Direction, as usual tribunal procedures will be effective – whether a failure or not will depend on the facts of the case, and tribunals should consider as part of the usual previewing of a case whether special arrangements, such as avoiding normally acceptable robust questioning, should apply – representatives should alert the tribunal to any specific arrangements considered desirable.

Note from CPAG

See article in Bulletin 272, p7.

Decision in brief

Effect of Lounes v Secretary of State for the Home Department (C-165/16) [2018] 3 WLR 375 – a dependent EEA family member of a dual national can (as can a third-country national) derive a right of reside from dual national where the dual national has exercised European Union Treaty rights in the host member state (eg, UK) prior to acquiring the citizenship of that state.

Decision in brief

Use of electric fan heater, hair dryer or tap to warm hands and allow wiping after defecating – tribunal erred in not considering whether use of these items constituted an aid so as to allow scoring for ‘need to use an aid or appliance to manage toilet needs or incontinence’ – in principle, they might be aids as an aid does not have to be specifically made for the purpose of overcoming a limitation (CW v SSWP (PIP) [2016] UKUT 197 (AAC) cited).