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Decision in brief

It is permissible to consider activity carried out since the date of the decision, if they throw light on what the position was at the time - applying substantial risk rule may include consideration of third-party assistance - but regular and open-ended help should not be assumed - an open-ended commitment (from a third party) to travel to and from work-related activities is 'unreasonable and unworkable'

Comment from CPAG

Regarding third-party assistance, this decision does not refer to KN v SSWP (ESA) [2016] UKUT 521 (AAC) but, in the emphasis both decisions put on the reasonableness and practicality of any such help needing to be considered, is not inconsistent with it.

Decision in brief

Communicating verbally- claimant with hearing loss able to lip read but not sign and needing informal help from family and friends - meaning of 'communication support' - can be provided not only be those trained or experienced in communicating with people with specific information needs generally, but also by family and friends who are directly experienced in communicating with the claimant alone - parity of reasoning with similar findings regarding 'social support' for Activity 9 in SL v SSWP (PIP) [2016] UKUT 147 (AAC)

Decision in brief

Managing therapy or monitoring a health condition - use of a nebuliser and application of Activity 3(b)(i) re need to 'use an aid or appliance to be able to manage medication or monitor a health condition' - medication delivered by the nebuliser cannot be an aid or appliance - an aid must help to overcome the consequences of a function being impaired that is involved in carrying out an activity- in 3(b) the activity is managing medication, not breathing - use of a nebuliser in itself does not indicate any limitation on the claimant's ability to manage medication (and so is not an 'aid')- if a nebuliser was needed because it was more effective than an inhaler, it may be an aid to manage medication, but that did not apply on the facts of this case where the claimant was able to use an inhaler

Decision in brief

Survivor's pension from the Netherlands is a pension for purposes of EC Regulation 883/2004 - care component of disability living allowance (DLA) is a 'sickness benefit' and not a pension for purposes of that regulation - therefore the Netherlands was the competent state for payment of sickness benefits and the award of the care component of DLA was correctly terminated

Decision in brief

A commode can be an 'aid' for managing toilet needs or incontinence - if the claimant does suffer from incontinence, mobility problems in getting to the toilet in time can be taken into account in assessing whether s/he reasonably needs to use an aid or appliance

Decision in brief

If a claimant walks at a slower pace than normal but is able to cover distances with a 'reasonable time period' (as defined at regulation 4(4)(c) of the Social Security (Personal Independence Payment) Regulations 2013), it is not possible to take that slowness into account when considering whether the walking ability is of an 'acceptable standard' (as referred to in regulation 4(2A)(b))

Decision in brief

Will not apply where claimant merely being 'treated as' in such work under the four-week run-on rule, immediately before start of the maternity allowance

Decision in brief

There is no requirement that the claimant's needs are met most nights, or most of the time - no requirement that the claimant's needs are met more than half of the nights in any given week, and an arithmetical approach is not consistent with previous caselaw -tribunal should make factual findings and consider in the round whether the test is met

Summary

The claimant was due to attend an oral hearing of his appeal along with his representative. The day before the hearing, the representative's organisation emailed the tribunal saying that the representative was ill and requesting an adjournment. Nothing was said about the claimant not attending; in a subsequent appeal to the Upper Tribunal it became clear that the claimant had either been expressly told not to attend the hearing by his representative, or at least that he had gained that impression. The tribunal refused to adjourn and heard the appeal (dismissing it) in the claimant's absence. A district tribunal judge refused an application to set it aside.

Judge Wikeley allowed the claimant's further appeal against the refusal to set the decision aside. The refusal of the claimant's appeal was set aside and a new tribunal was to reconsider it. There was no duty on a tribunal to telephone an absent appellant, and neither was there an obligation in every case to at least consider telephoning an absent appellant (paragraph 14). However, where a tribunal decided to proceed in the unexplained absence of an appellant, the tribunal should then adopt a more flexible and discerning approach when considering an application to set aside (paragraph 15). In the present case, the district judge had erred in not considering that a set-aside was in the interests of justice (paragraphs 16-18).

The judge considered the implications of the employment appeal tribunal's decision in Cooke v Glen rose Fish Co. In that case, it had been held that an employment tribunal was obliged at least to consider whether to telephone an absent appellant. But that was not, held the judge, good authority for the First-tier Tribunal in the Social Entitlement Chamber - ie, including social security appeals (paragraph 32). The relevant law was different, and in particular there was no such express requirement in the Social Entitlement Chamber's procedural rules (The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, No.2685). Where there is an unexplained absence, the First-tier Tribunal must apply rules 2 (overriding objective for fairness and justice and obligation to co-operate with the tribunal) and 31 (hearings in a party's absence). Applying those in the circumstances of the case, a telephone call may be good practice, but the rules could not be fettered by 'elevating what may in some circumstances be an example of good practice into a proposition of law' (paragraph 37).

Comment from CPAG

This decision serves as a warning to representatives not to assume that their non-attendance, or that of the appellant, automatically means that a hearing cannot proceed. Before considering the case, Judge Wikeley observed: 'an experienced representative... should know that [where they cannot attend the hearing] they should advise the Appellant to attend in any event... Representatives, like appellants, are under a duty to co-operate with the tribunal' (paragraph 13).

Summary

The claimant was a child with type 1 diabetes. She had been awarded the lower rate of the mobility component and the middle rate of the care component of disability living allowance but, on a renewal claim, both awards were removed. The claimant appealed. The Secretary of State did not supply to the First-tier Tribunal documentation about the previous decision awarding benefit to the tribunal, but merely said that 'the documents relating to this claim have not been enclosed but can be obtained if Tribunal wishes to view them'. The tribunal proceeded without the documentation and rejected the appeal, holding that the claimant was now older and could manage and control her condition.

Judge Hemingway allowed the claimant's further appeal and remitted the case to a new tribunal. The tribunal had erred by not at least acknowledging the existence and availability of the evidence in the earlier documentation and considering whether to call for it (paragraph 21). As a preliminary matter, the judge agreed with the acceptance by the Secretary of State that, in this case, the Secretary of State had been under an obligation (under rule 24 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008) to produce to the tribunal the documentation used when making the previous awarding decision. The judge considered that would usually be the case in an appeal regarding the refusal of a renewal claim (paragraph 17).

The substantive point, however, was what the approach of the tribunal should be when the Secretary of State had not fulfilled his obligation under rule 24. The judge rejected the argument that a tribunal will always be under an obligation to adjourn to obtain the missing evidence, as being an 'unduly inflexible' approach (paragraph 19). However, he did consider that generally speaking 'tribunals should be very cautious in deciding to, as it were "bat on" in circumstances where such material has not been produced but should have been' (paragraph 20). In this case, the tribunal might reasonably be said to have concentrated on the basis of what seemed to be the more up-to-date position; however the tribunal had not even considered the possibility of calling for the earlier evidence, and it could not have known the exact basis of the earlier award. In these circumstances, the tribunal erred in failing, as a minimum, to consider whether to call for the earlier evidence (paragraph 21).

Comment from CPAG

The judge seems to accept that FN v SSWP [2015] UKUT 670 (MC), concerning employment and support allowance, could be relevant to this case. Although he did not make extensive reference to FN, his reasoning is not dissimilar, in that he declined to hold that tribunal should always adjourn to get the missing evidence. However, he is more forthright in considering that consideration to getting it should always be given, and in urging caution before proceeding without it.

Summary

This decision of a three-judge panel of the Upper Tribunal dismisses an argument that the transitional rules regarding transfer of disability living allowance (DLA) awards to claims for PIP were unlawful. Specifically, it was argued for the claimant that the provision in the Personal Independence Payment (Transitional Provisions) Regulations 2013, No.387, that an award of PIP made under the transitional rules does not take effect for 28 days after the award is made, breached discrimination rules in the European Convention on Human Rights (ECHR). It was also argued that the rules were ultra vires in that they produced an irrational result.

The claimant was entitled to DLA at the lowest rate of both the care and the mobility components. On transfer to PIP, following a mandatory reconsideration, she was awarded the enhanced rate of the daily living component. She appealed to the First-tier Tribunal on the basis that setting of her PIP entitlement from 28 days after her date of claim (with the old DLA award, which was worth significantly less, continuing for that time) was in breach of Article 14 of the ECHR read with Article 1 of Protocol 1. Her rights as a disabled person entitled to a higher award of PIP than DLA had, it was argued, been breached. The tribunal dismissed the appeal.

In the Upper Tribunal, Mr Justice Charles and Judges Rowland and Wright dismissed the claimant's further appeal. The test of discrimination involved whether it could be justified, and would be unlawful if it had 'no objective and reasonable justification' (paragraph 47, applying Stec v United Kingdom [2006] 43 EHRR 1077). The judges considered that any discrimination was justified, as it had an objective and reasonable justification, and that for the same reason the rules were not irrational. Cost, practicality and the need to protect those who would lose out were part of the judges' reasoning. The regulations were 'pursuing a legitimate aim'. That was part of a more general aim of moving to PIP 'so as to reduce public expenditure and better focus social security social security benefits on the more seriously disabled, but more specifically to ensure and effective and manageable transition from DLA to PIP for DLA claimants and one which protected the claimants' entitlement to DLA until the transition had been completed' (paragraph 79). The regulations were in proportion to these aims. The claimants who benefited from transition to PIP were caught in a 'hugely complex transition from one benefit to another', the design of the transition was deliberately aimed at protecting those who would lose out, and the judges were satisfied that the protection of those claimants was a legitimate aim (paragraph 80).

Summary

The claimant was awarded the enhanced rate of the mobility component of PIP by the First-tier Tribunal, for a period starting from 2 January 2014 and ending on 1 January 2016. A renewal claim form was sent to the claimant in October 2015; following receipt of that and a new medical report, the tribunal's award of PIP was removed from 20 November 2015. The claimant's eventual appeal against that was dismissed by a second tribunal.

Judge Wright allowed the claimant's further appeal and remitted the case to a new tribunal. Both the DWP and the second tribunal had failed to deal correctly with the removal of the award made by the first tribunal. This was 'yet another case' in which a removal of an award of PIP 'was not dealt with in any sense adequately either by the Secretary of State in his appeal response to the First-tier Tribunal or by that tribunal in deciding the appeal' (paragraph 1). Indeed, the Secretary of State's response for the second tribunal was 'woeful and wholly inadequate' (paragraph 8).

Specifically, the tribunal needed to satisfy itself that there was an applicable supersession ground for revisiting the decision of the first tribunal (paragraph 9). Endorsing SF v SSWP (PIP) [2016] UKUT 481 (AAC) (Bulletin 265, p11), the judge reminded the new tribunal of its obligation both to identify the relevant ground for supersession and the date from which such a decision properly takes effect (paragraph 9). One potential ground was at regulation 26(1 )(a) of the Universal Credit, Personal Independence Payment, Jobseeker's Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013, No.381. That permits supersession on receipt of a new official medical report. But that did not determine the outcome of the supersession: tribunals still need to consider whether the evidence showed that the original award should indeed be changed, and then explain their findings (paragraphs 11-15, also citing the decisions of Judge Mesher in KB v SSWP (PIP) [2016] UKUT 537 (AAC) and OS v SSWP (PIP) [2016] UKUT 538 (AAC)). In the present decision, Judge Wright pointed out that the effective date of any changed entitlement following supersession under regulation 26(1 )(a) could only be from the date of the superseding decision (paragraph 15).

Comment from CPAG

The Upper Tribunal is clearly trying to emphasise to the DWP and tribunals that interfering with a current award of PIP requires identification of a valid supersession ground, weighing evidence as to whether the original award is indeed now incorrect and identification of an effective date for any changed entitlement. In MR v SSWP (PIP) [2017] UKUT 46 (AAC) (1 February 2017), Judge Wikeley describes a failure of a tribunal to do this, instead treating the case effectively as a new claim, as 'a pretty sorry tale'.