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Decision in brief

In these circumstances, as held in the earlier decision in this case in AMS v SSWP (PC) [2017] UKUT 48 (AAC) the Court of Justice of the European Union decision in Brey requires a personalised assessment of whether claimant would now be a 'burden on the social assistance system' - facts show that claimant would be entitled to support of some £13,200 a year for a period of a least four years - this represented an 'unreasonable burden' on the social assistance system of the UK so that even when Brey is applied, claimant lacked the right to reside

Summary

The claimants were a couple, one of whom was not working and was in receipt of a Dutch invalidity benefit. The award of WTC did not include a child care element, on the basis that the non-working partner did not count as 'incapacitated'. This was because the relevant rule defined 'incapacitated' with reference to various UK benefits but not to others, including Dutch invalidity benefit. The decision was upheld by the First-tier Tribunal.

Judge Jacobs allowed the claimants' further appeal and substituted a decision that the relevant rule, regulation 13 of the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002, SI No. 2005, must be read so as not to deprive the claimant of the ability to base a claim for the childcare element on the non-working partner's incapacity as evidenced by his Dutch invalidity benefit. The judge accepted that regulation 13 provided a complete definition of 'incapacitated' and that the claimants could therefore only succeed on the basis of European Union law (paragraphs 10-11 ). He also held that the claimants could not benefit from Article 5 of EC Regulation 883/2004, as the 'legislation' referred to there was social security legislation, not tax credit legislation (paragraphs 12-15).

However, the judge did consider that the claimants were being deprived of a social advantage, contrary to Article 7(2) of EC Regulation 492/2011. That provides that a worker who is a national of a member state 'shall enjoy the same social and tax advantages as national workers'. The issue was whether regulation 13 was 'intrinsically liable to affect migrant workers more than national workers and, if so whether there is a risk that it places them at a particular disadvantage compared with national workers' (paragraph 19). By excluding reference to equivalent benefits from other member states, regulation 13 is, held the judge, intrinsically likely to affect a substantially higher proportion of migrant workers than national workers, and that surely put them at a disadvantage compared with British workers (paragraphs 22-23).

Summary

The claimant was at the relevant time a child and her mother was her appointee. The First-tier Tribunal considered the claimant's appeal following a refusal to award her personal independence payment on transfer from disability living allowance. The claimant's mother told the tribunal there was a medical report supporting her account that the claimant was diagnosed with autistic spectrum disorder (ASD), which had been given to her representatives but was not in the tribunal bundle. The tribunal did not accept the existence of the report and refused to adjourn, eventually refusing the appeal.

Judge Gray allowed the claimant's further appeal and remitted the case to a fresh tribunal had erred in refusing to adjourn, making a mistake of fact in denying the existence of the report and that the claimant had an ASD diagnosis, and so consequently proceeding in an unfair way (paragraphs 5 and 6). The tribunal also erred in considering that for the mother's taking issue with the official medical report to be credible, she needed to have made a complaint. The judge cited (at paragraph 7) her own decision in KN v SSWP [2016] UKUT 521 (AAC), in which she said: 'There is no legal requirement for a complaint to be made in tandem with an appeal, and it seems to be wholly wrong to use the absence of such a complaint as a significant credibility pointer.'

The tribunal made further errors in its approach to the assessment of evidence as a whole (paragraphs 8-10). The language of its decision suggested it failed to look at the totality of the evidence and instead made a division between medical evidence and other evidence - ie, the mother's own account of the claimant's needs). That error was compounded by the erroneous notion that in order to show entitlement, it was up to the appellant to provide medical evidence to contradict the Secretary of State's medical evidence. The judge pointed out that she had explained the fallacy of that approach in MW v SSWP [2016] UKUT 76 (AAC), in which she had endorsed the earlier decision of Judge Ovey in CW v SSWP [2011] UKUT 386 (AAC), at paragraph 24, where he said, '...there is no general rule that where there is a difference between the evidence of a medical professional producing reports for the use of the Department for Work and Pensions in making decisions as to social security benefits and the evidence of a claimant, the evidence of the medical professional should be preferred.' Finally, the tribunal's remarks about the absence of sufficient medical evidence to 'challenge, contradict or place in issue' the official medical report suggested an erroneous 'judicial review type' approach, rather than (as per R(IB) 2/04) considering the matter afresh and standing in the shoes of the decision maker (paragraph 11).

Comment from CPAG

The tribunal in question seems to have erected an evidential wall which was virtually impossible for any claimant to climb. Clearly, adjourning to seek a specific report which has been put in issue will be in order. The other errors regarding medical evidence are depressingly familiar, but the present decision is a useful reminder of the correct approach.

Summary

This decision concerns an appeal against the amount of a tax credits penalty as originally applied by HMRC and subsequently amended by the First-tier Tribunal. It follows on from the first decision in this case, SP v HMRC [2016] UKUT 238 (AAC), in which Judge Levenson set out the correct approach to the application of tax credit penalties. This second decision is about the specific issue of the amount of the penalty as applied by the First-tier Tribunal.

The claimant had incorrectly given her income for the tax year as £11,000 when in fact it was £22,797. The First-tier Tribunal accepted that she did this because of the complexity of her finances and being in a stressful situation, and that there was no suggestion of fraud, but (applying the approach in set out by Judge Levenson in the original decision in SD) considered she had acted negligently. Therefore although it reduced the original amount of the penalty, it still set it at £500 to 'mark the seriousness' of the issue.

Allowing the claimant's further appeal, Judge Levenson first noted that under paragraph 2 of Schedule 2 to the Tax Credits Act 2002, there was a right of appeal to the Upper Tribunal against the amount of a penalty, which was separate from the right of appeal on the basis of error of law. Here, there was no reasonably arguable error of law, but the claimant had a right of appeal about the amount of the penalty in any case (paragraph 7). Reviewing the facts of the case, including that in the year in question the claimant had had to contend not only with redundancy but also the fact that her brother was terminally ill, the judge revised the penalty down to £100. When it comes down to it, said the judge, 'it is a matter of judgement'. Although the error was serious, in a case that depends on negligence rather than fraud (and where it was the first such error) it was not necessary to create additional hardship. A penalty of £100 was still more than nominal but not so great as to be disproportionate or create inappropriate additional hardship (paragraph 18).

Comment from CPAG

Taken together, the two decisions of Judge Levenson indicate that the general approach to one of penalties should involve considering the relevant facts of the case, including the circumstances of the claimant and mitigating factors, and perhaps (although not explicitly stated) the judicial exercise of a bit of human compassion.

Summary

There was medical evidence that the claimant had had obsessive compulsive disorder for over 25 years. A separate report described the claimant as experiencing repetitive sexual thoughts causing him to feel extremely distressed when near men. The claimant reported avoiding contact with men as a result. In considering Activity 9 (engaging with other people face to face) the First-tier Tribunal awarded the claimant two points in respect of descriptor b ('needs prompting to be able to engage with other people'). It held that the claimant could engage in social contact with women, and that with encouragement and support 'there was nothing to indicate that social engagement as a reciprocal exchange (rather than a friendship or longer relationship) would not be possible'.

Judge Jacobs allowed the claimant's further appeal and remitted the case to a fresh tribunal. The tribunal had erred in its approach to Activity 9 and in particular the ability of the claimant to 'engage socially', including the ability to 'establish relationships'. Those concepts were relevant to Activity 9 by dint of paragraph 1 of Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013, SI No.377. Specifically, the tribunal simply had not dealt with the relevance of the ability to establish relationships, and also appeared not to have taken sufficient account of the provisions of regulation 4(2A) (which include the requirement for a claimant to be able to carry out an activity to an acceptable standard) (paragraph 11).

The judge did not accept that establishing a relationship means no more than 'the ability to reciprocate exchanges'. There was more to it than that, which by itself could refer only to a brief exchange with a stranger about the weather or buying a burger or an ice cream (paragraph 13). The reference to 'establishing relationships' was without qualification, and the judge took that to mean reference to the skills relevant to relationships in general rather than a particular type of relationship, with the focus on establishing a relationship rather than developing one (paragraph 14). Having serious difficulties in establishing relationships with roughly half the population was sufficient to qualify (paragraph 15). Although the judge declined to bind the new tribunal, he doubted that the claimant's problems could be overcome by prompting or social support; but there was at least a possibility that descriptor 9(d)(i) (eight points for inability to engage with other people without overwhelming psychological distress) might apply (paragraph 19).

Comment from CPAG

The facts in this case are particular, but the judge's comments about the relevance to Activity 9 of the ability to 'engage socially' and therefore of the ability to 'establish relationships' are of general application.

Summary

The claimant had been entitled to DLA including the mobility component at the higher rate. On transfer to PIP, she was awarded only the standard rate of the mobility component. The First-tier Tribunal was aware of the DLA award but did have the evidence relating to that award before it, and did not consider seeking it.

Judge Markus QC allowed the claimant's further appeal and remitted the case to a new tribunal. On the facts of the case, and as conceded by the Secretary of State in supporting the appeal, the tribunal had erred in not considering whether there was other evidence which may have assisted. Although the DLA award was not conclusive for PIP, the evidence relating to the DLA award may have enabled the tribunal to scrutinise the evidence in the PIP decision. The reasoning in FN v SSWP [2015] UKUT 670 (AAC), [2016] ACR 24 was referred to by the judge (paragraphs 2-4 and 8).

The judge added that, 'for the avoidance of doubt', she was not holding that the tribunal was bound to obtain the evidence behind the previous DLA award. If it made a reasonable decision not to obtain it, then that would not be challengeable. However in the present case in order to avoid further delay she directed the Secretary of State to provide the new tribunal with the medical evidence relating to the DLA award, if it is available (paragraph 8).

Summary

The claimant had an allegedly 'spare' bedroom that was occupied, from time to time, by disabled adults placed with her under an adult placement scheme. She had been vetted, trained and approved under that scheme. The bedroom tax was applied regarding that bedroom. The First-tier Tribunal allowed the claimant's appeal, holding that the rule had to be disapplied because it unlawfully discriminated against her. Comparisons were drawn with the position of foster carers who, however, are allowed (by virtue of regulation B13(6)(b) of the Housing Benefit Regulations 2006, SI No.213) an additional bedroom.

Judge Jacobs rejected the Secretary of State's further appeal. He could see no error of law in the tribunal's reasons (paragraph 17). He said this in particular with regard to the arguments advanced by the Secretary of State, all of which he rejected. Firstly, he rejected the argument that any discrimination was justified as it was not 'manifestly without reasonable foundation'. Judge Jacobs said that he found the tribunal's analysis on this point 'compelling' (paragraph 5 - it is assumed the judge was referring to the tribunal's comparison of the claimant's position with that of foster carers). Secondly, the judge rejected the Secretary of State's argument that the claimant could not succeed as she herself was not disabled. That was irrelevant: disability was involved here only as a factual background, and the tribunal's discrimination analysis was based on a comparison with the position of foster carers (paragraph 6). The judge also held that the Secretary of State had failed to show that there was no valid analogy between foster carers and those taking part in an adult placement scheme (paragraph 7) and rejected a contention that the finding of discrimination could lead to double payment of HB for the same room (paragraphs 9-11).

The Secretary of State also cited the decision of the Supreme Court in R (Carmichael and Rourke) v Secretary of State for Work and Pensions [2016] UKSC 58, in particular the rejection there of various claims regarding disabled persons. The flaw in the Secretary of State's argument that that reasoning should apply here was that the Supreme Court was concerned with disability discrimination, whereas in the present case the First-tier Tribunal had not decided the case on the basis of disability discrimination (paragraphs 12-14). Similarly, the Court's reasoning about discrimination in 'sanctuary scheme' cases involved cases (said Judge Jacobs) in which there was no objective need for a bedroom. That was not the case here, where the claimant had a bedroom that was needed when an adult was placed with her (paragraphs 15-16).

Summary

The claimant was in receipt of IS as a lone parent between 2006 and 2014, during which time she also received maximum HB on the basis that the IS acted as a 'passport'. During 2014, the DWP decided that the claimant had not been a lone parent (as she was allegedly cohabiting) and decided that all the IS had been overpaid and was recoverable from her. The local authority was informed and eventually decided that the claimant had not been entitled to HB from 2009 and (in the absence of any evidence about her past income) held that she had been overpaid and was liable to repay the overpayment. The claimant appealed regarding the HB. The First-tier Tribunal allowed the appeal, holding on the basis of the evidence before it that the claimant had not been cohabiting and had not been overpaid.

Judge Rowland dismissed the local authority's further appeal. Throughout, the local authority claimed it was 'bound to apply' the DWP decision regarding IS so as to find that the claimant was not a lone parent. Despite a number of adjournments, the authority had not substantively responded to the First-tier Tribunal's directions for the attendance of a presenting officer and for further evidence, in particular to get evidence referred to by the DWP in interviews under caution regarding the IS award. Judge Rowland said that what seemed to have underlain the local authority's lack of action was a belief that it was not really necessary to provide further evidence as it was entitled to follow the JS decision, which had not in itself been appealed against. That approach betrayed 'a fundamental misunderstanding' (paragraph 30). The judge agreed that the IS was binding to the extent that it meant that the claimant was not entitled to IS in the relevant period. But the finding that the claimant was cohabiting was not binding on the local authority, and therefore not binding on the First-tier Tribunal (paragraph 31).

Once it became aware that the IS decision was not itself under appeal, the local authority was required to obtain the necessary evidence itself if it wished to defend its decision (paragraph 32). Further, the tribunal was entitled to rely on evidence from the claimant in the form of prepared statements which she gave in the interviews under caution. It was clear that the tribunal considered those statements a plausible case that addressed the evidence referred to in the interviews. The tribunal was entitled to take the view that the indirect evidence of the interviews and the IS decision were not sufficient to satisfy it of the correctness of the local authority's decision (paragraphs 38 and 41).

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