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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

Summary

The claimant had been entitled to the higher rate of disability living allowance (DLA) mobility component. But on transfer to PIP, he was not awarded even the standard rate of the mobility component. The claimant’s appeal to the First-tier Tribunal was refused.

Judge Wright allowed the claimant’s further appeal and substituted a decision that he was entitled to the standard rate of the mobility component of PIP, by virtue of satisfying descriptor 2(c) ‘can stand and then move unaided more than 20 metres but no more than 50 metres’. The tribunal erred in failing to make sufficient findings of fact or given adequate reasons (paragraph 3). On the facts and balance of the evidence, which included that the award of the high rate of the mobility component made it more likely than not that the claimant could not walk more than 50 metres, and inadequate reasoning by the tribunal on the claimant’s walking ability, the judge was satisfied that entitlement to the standard rate was made out (paragraphs 3, 8 and 23).

Although not part of the judge’s reasoning, he also said that the tribunal may also have erred in failing to address the evidence behind the award of the higher rate of DLA mobility component and, given the absence of that evidence from the papers, failing to address whether that evidence should have been before it (paragraphs 5 and 10). The Secretary of State accepted, applying AP v SSWP [2016] UKUT 416 (AAC), that such DLA evidence may be relevant. The Secretary of State told the judge that the Secretary of State gave claimants ‘the option to rely on the older DLA evidence in support of their PIP claim’. If the answer was yes, the evidence was put into the appeal bundle. Otherwise, some basic information about the amount of dates of the DLA award was included, and the Secretary of State intended to extend that so as to include the date of the last DLA decision (paragraphs 12–13). The judge noted that these issues were to be explored in two other appeals currently before the Upper Tribunal (CPIP/2307/2017 and CPIP/2386/2017) (paragraph 16).

Comment from CPAG

Clearly, as this decision envisages, a tribunal that proceeds without reference to the evidence behind the previous DLA award may – but will not necessarily – err in law. All will depend on the individual facts – eg, how recent the DLA decision was and whether the claimant’s condition has changed.

Summary

When claiming IS as pregnant, the claimant did not disclose the existence of two bank accounts in her name amounting to about £13,300. Following a compliance interview in July 2015, the money was withdrawn and the accounts closed. The claimant said she returned the money to the family members apart from £2,000 to buy things for her baby. The claimant said she had been unaware of the accounts, which had been opened for her (in her name) by four family members when she was a child, with the intention that she used the money if she went into education. She was a member of the traveller community and now the family members disowned her and refused to give evidence, due to the ‘shame on family’. Both the decision maker and the First-tier Tribunal considered that the money in the accounts was the claimant’s. The tribunal held that she must have opened the accounts herself and considered she had at all times had control over the money in them.

Judge Wikeley allowed the claimant’s further appeal, but remitted the case back to a fresh tribunal for findings of fact about (1) whether the claimant was in fact the beneficial owner of the capital and (2) if so, whether the money allegedly returned to the family members should be treated as her notional capital. The tribunal had erred in finding that the claimant opened the accounts herself when there was no evidence for or explanation of that. Also the tribunal had erred in failing to distinguish between the periods before and after they were closed and the money withdrawn: for the latter period, the tribunal should have made findings about whether the claimant still had the money or, if not, whether it was to be treated as her notional capital (paragraphs 23 and 31).

The judge set out some considerations about capital allegedly impressed with a trust from a family member. It was for the claimant to show that although undoubtedly the legal owner she was not the beneficial owner of the capital (paragraph 40). The central issue in this case was whether there was a ‘Quistclose’ trust – ie, where the money was transferred for a stated purpose that did not leave it at the free disposal of the transferee, and the intention to create the trust was via the transferer’s words or conduct, not their innermost thoughts (paragraphs 41– 42). Evidential difficulties may well often arise in the context of family arrangements, but ‘the absence of a paper trail is not necessarily determinative’ (paragraph 44). It was important that the evidence is considered ‘in its wider social context’. Informal family arrangements (in the traveller community or not) are not usually evidenced in writing. If the appellant’s account of being cast out by the community was accepted, that may explain the failure of witnesses to attend the oral hearing to support her (paragraph 47). Identification of a Quistclose trust cannot be relaxed in some way because the claimant comes from a traveller background. But the tribunal, in doubting the claimant’s credibility, seemed to have applied ‘some objective criterion of reasonableness’, whereas the question was what the individual in question, given her own circumstances, is likely to have done (paragraphs 58 – 62).

Comment from CPAG

This decision underlines the difficulty of testing for a ‘Quistclose’ trust in family arrangements, but clarifies that documentary evidence is not essential. Further, a claimant’s credibility is to be assessed with regard to her/his social context, not an objective view of reasonableness.

Summary

The claimant’s mother had a home in Berlin, but lived with the claimant in Bournemouth for various (prolonged) periods of time, staying with her daughter for approximately the first two weeks in each month. When in Bournemouth, the mother worked and claimed working tax credit and helped the claimant and her daughter around the house. But she rented her own flat in Berlin, had a long-term partner and other family in Berlin, and when in Bournemouth slept on a sofa bed and brought only sufficient clothes for her stay, not using a wardrobe. The local authority applied a non-dependant deduction for the mother to the claimant’s housing benefit. The First-tier Tribunal rejected her appeal, holding that the mother was normally residing both in Berlin and in Bournemouth – ie, with the claimant as her non-dependant.

Judge Wikeley allowed the claimant’s further appeal, substituting a decision that the claimant’s mother was not her non-dependant, as the mother did not normally reside with the claimant, because her normal home was in Berlin. The tribunal erred in failing to give proper consideration to whether Bournemouth was the mother’s usual home and in failing to give sufficient weight to her home in Berlin (paragraph 72). In particular, although a person can reside in more than one place, the tribunal was wrong as a matter of law in holding that the mother was (and was capable of) ‘normally’ residing in both places (paragraphs 7 and 32).

The relevant rule was at regulation 3(1) of the Housing Benefit Regulations 2006 No.213. That provided that (subject to exceptions) a non-dependant is someone who ‘normally resides with a claimant or with whom a claimant normally resides’. The judge accepted the Secretary of State’s submission that there was no valid distinction between normally residing with a claimant, normally occupying a home and having a normal home elsewhere. An adult, held the judge, ‘may well reside in more than one place but he or she can have only one ‘normal’ home or residence’ (paragraph 32). The tribunal had been entitled on the facts to conclude that the mother ‘resided’ in Bournemouth and that when she did so was residing ‘with’ the claimant; but the crucial question was whether she was ‘normally’ residing with her (paragraph 36). On the facts of the case, the judge was satisfied that the mother’s normal home was in Berlin. The fact that in Bournemouth she slept on the sofa and had no wardrobe were ‘especially telling’: this was a case ‘of a grandmother who is living out of a suitcase when she comes to stay – admittedly for lengthy periods – with her daughter and grandchildren’ (paragraphs 68 –71).

Note: given his conclusion that someone could only be a non-dependant if her/his normal home was with the claimant, the judge concluded that the provision at regulation 74(7)(a), providing there was no deduction for a non-dependant who although residing with the claimant has her/his normal home elsewhere is otiose, or at least a ‘statutory conundrum’.

Summary

The claimant had sustained an injury to her hands in 2006 and been on ESA since 2009. In 2016, she failed a repeat work capability assessment. There was no reason to suppose that the claimant’s condition had improved, but neither the claimant’s representative nor the First-tier Tribunal called for a history of the adjudication of the claimant’s ESA. The tribunal dismissed her appeal.

Judge Ward allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred in failing to call for the ‘missing’ history and evidence of the case. The tribunal had an inquisitorial jurisdiction, the ESA in this case was a long- standing award and the claimant’s condition did not appear to have changed much on the available evidence. Taking away someone’s ESA after they had been on it for seven years, in the absence of, for example, obviously ameliorating treatment was a significant step. To be able to explain its reasons for taking the award away, the tribunal needed to know the history and the relevant evidence behind it (paragraph 17).

In so holding, the judge rejected a submission from the Secretary of State that the tribunal had not erred by failing to call for the evidence from the history of the case. The Secretary of State relied on the decision in JC v SSWP (ESA) [2015] UKUT 706 (AAC), which held it was not necessary to have the evidence of a claimant’s previous assessment ‘in each and every case’, and the endorsement there of a requirement for there to have been an ‘assertion’ that there has been no change in the claimant’s condition for the previous adjudication history to be called on. But the judge said it would be wrong to judge whether there had been such an ‘assertion’ by ‘abstract consideration of the semantics of the words used.’ In FN v SSWP (ESA) [2015] UKUT 670 (AAC); [2016] AACR 24, the panel expressly contemplated whether the tribunal ought to have ‘inferred for itself’ that a submission of no change was made. It was a job for the tribunal, said Judge Ward, ‘to listen to and interpret what it being told, orally and in writing. Context is very important’ (paragraph 12). Tribunals will understand that some conditions heal and others do not, and on the facts of this case the natural reading of the claimant’s letter of appeal, with its reference to her accident in 2006 and continuing need for help, was indeed that her condition had not changed (paragraphs 13 –16).

Comment from CPAG

This decision helpfully clarifies that it may well be evident from the context that the claimant is saying that her/his condition has not changed, and that may be sufficient to require the tribunal to seek the evidence of the previous assessment(s).