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Summary

In this judicial review decision, the applications for judicial review were made by carers getting carer's allowance (CA) for looking after disabled grandparents (in one of the claims, the disabled grandmother was also an applicant). The carers were also claiming housing benefit. Under the relevant rules (regulations 75G and 75F of the Housing Benefit Regulations 2006 No.213) neither CA as a benefit nor carers looking after a family member other than a partner or dependant child are exempted from the cap. One of the carers was a single parent who, as a result of the cap being applied, fell into arrears and was evicted, and was now living in a single room with her four children. The other carer had very poor health himself, including mental health problems.

The main argument made by the claimants was that the benefit cap unlawfully discriminated against both the carers and the disabled grandparents, and was therefore in breach of Article 14 of the European Convention on Human Rights (ECHR), read together with Article 1 of Protocol 1 (right to possessions) and Article 8 (right to private and family life). In the High-Court, Mr Justice Collins noted that it was accepted that Article 1 of Protocol 1 was engaged (paragraph 43). He further held that although it was disputed by the Secretary of State that Article 8 applied, that did not matter to the carers since Article 1 of Protocol 1 applied to them, and Article 8 certainly applied to the disabled grandparent, as 'it is clear that many disabled persons would choose to have their needs, particularly where intimate care is concerned, dealt with by family members or relatives whom they can trust. .. the desire for care to be administered by a particular family member or relation will almost always be likely to fall within Article 8' (paragraph 46).

The judge then considered whether there was indeed a breach of Article 14. The test was whether the claimant was treated differently, and whether the difference in treatment was then unlawful as having 'no objective and reasonable justification'., a test which in the context of benefits had been formulated as whether the difference was 'manifestly without reasonable foundation' (paragraphs 58 and 68). The judge considered in the present cases that even though the claimants were carers, it was right to consider if there was discrimination against the disabled because, as a result of the cap, 'a significant number of those who are at present care for in what can broadly be called a family context are unable to have that care continue'. There was, therefore, adverse treatment where a family carer was not exempt as 'although care can be provided by others, the loss of the trusted carer can be devastating' (paragraph 63). The judge held that, although the benefit cap policy had a legitimate aim (paragraph 65), this discrimination was not justified as the 'manifestly without reasonable foundation' test was not met (paragraph 71 ). The material placed before parliament when introducing the cap did not raise the effect on the disabled of loss of family carers, and so the discriminatory effect had not been considered (paragraph 66-69). The judge held that 'the failure to exempt at least individual family carers is not lawful because it amounts to indirect discrimination which is not objectively justifiable' (paragraph 74).

Comment from CPAG

The decision has not been appealed. As such, it is binding on decision makers and tribunals. The court did not actually quash the regulations, but arguably continued application of the cap unamended is wrong. The government has indeed promised amendments to the Welfare Reform and Pensions Bill to exempt all recipients of CA from the cap in the future; but that still leaves the question of protection for those current recipients affected by this decision.

Summary

This decision of the Scottish Court of Session dismisses as incompetent the appeal of the Secretary of State against that in the Upper Tribunal of Judge Sir Crispin Agnew of Lochnaw Bt QC in SSWP v YB [2014] UKUT 80 (AAC) (Bulletin 239, p11). As a result, the Court did not consider any substantive issue of law, and the decision in SSWP v YB stands.

The Secretary of State's appeal was dismissed as 'incompetent' as the Court considered it was not made 'on a point of law arising from a decision made by the Upper Tribunal', as required by section 13 of the Tribunal, Courts and Enforcement Act 2007, and therefore there was no jurisdiction to consider the appeal. The Secretary of State was seeking to challenge the conclusion in YB that regulation 12(1 A) of the Social Security (Disability Living Allowance) Regulations 1991 No.2890 was ultra vires (as discriminatory and incapable of objective and reasonable justification, in not providing for an outdoors test of visual acuity regarding the high rate of the mobility component). But, held the Court, Judge Agnew had decided the appeal applying regulation 12(1 A), and his views on the vi res of the regulation 'formed no part of the reasoning which led him to that decision'. The Secretary of State's appeal therefore did not 'arise' from the 'decision' (paragraph 47).

Comment from CPAG

This decision leaves the decision in SSWP v YB intact. That decision itself left regulation 12(1 A) intact, albeit that Judge Agnew clearly felt that the 'Snellen scale' applied by the regulation discriminated against those whose visual impairment was outdoors rather than indoors. The Court of Session was told that if the Secretary of State's appeal was not permitted to go forward then 'he will feel bound by the Upper Tribunal Judge's expression of view as to the vires of the regulation.' The Court commented that 'how the appellant chooses to act is a matter for him.' In subsequent guidance (Memo DMG 28/15), the DWP has decided simply to continue to apply regulation 12(1 A) without amendment.

Decision in brief

‘Social support’ is not limited to support provided by persons with particular training or expertise or which is provided professionally – can be satisfied on basis of support provided by family or friends – definition in the rules is that ‘social support’ means support ‘from a person trained or experienced in assisting people to engage in social situations’ – the necessary ‘experience’ may be derived simply from someone assisting an individual close to him or her

Decision in brief

Descriptors 4(a) and (b) ability to pick up and move a ‘carton full of liquid’ – test refers to a carton that is closed not open, therefore spilling in the act of picking up and moving not relevant – descriptor 5(d) ‘cannot single-handedly use a suitable keyboard or mouse' – ability to use an iPad is not the same as ability to use a keyboard or mouse – tribunal needed to explain why it considered ability to use an iPad meant 5(d) did not apply

Decision in brief

Whether subsequent use of evidence by tribunal rendered its decision unlawful – tribunals are not bound by the strict law of evidence and can admit all relevant evidence – it may nevertheless be important for a tribunal to decide whether evidence was lawfully obtained – it if was, prospect of exclusion by the tribunal on grounds that it would be unfair to admit it is minimal – it was open to the tribunal to accept evidence from the presenting officer that authorisation had been obtained

Summary

The claimant lost his appeal for a higher award of personal independence payment than that which he had been awarded. In its decision, the tribunal appeared to adopt the medical evidence of the DWP healthcare professional, and did not deal with the points made by the claimant’s representative.

Judge Gray allowed the claimant’s further appeal and remitted the case to a new tribunal, holding that the tribunal had erred in giving inadequate reasons for its decision. The judge made a number of comments about the weighing of DWP medical evidence, in particular with regard to where that conflicted with the evidence of the claimant. The Secretary of State had suggested that the chief reason for the tribunal's adopting the medical report of the healthcare professional was that it was the only medical evidence available and that, all else being equal, it was not unreasonable to prefer ‘expert’ evidence to lay evidence. Judge Gray commented, ‘To the extent that this statement appears to suggest that there is a rule of thumb, even if not a rule of law, that expert evidence should generally be preferred to the evidence of an appellant I disagree’ (paragraph 20). She cited with approval the words of Judge Ovey in paragraph 24 of CW v SSWP [2011] UKUT 386 (AAC): ‘…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.’

Judge Gray went on to hold, ‘Whilst evidence of expert opinion may be of value, a tribunal is entitled to accept the uncorroborated evidence of an appellant as to their functional impairment and the extent of it rather than the evidence of a healthcare professional which may come to a very different view as to the probable extent of functional difficulty. Were that not to be so, an appellant in a case such as this where the Secretary of State routinely obtains evidence from a healthcare professional, could never win.' It remained open to the tribunal to prefer the healthcare professional’s opinion because of its expertise, ‘but a formulaic acceptance of the report of an examining medical practitioner, without consideration of the evidence as a whole, will be an error of law (CIB/3074/2003)’ (paragraph 21).

Comment from CPAG

The judge’s comments are a reassertion of previous caselaw authority to the effect that tribunals must weigh evidence on its own merits and, when adopting a particular source of evidence, explain what those merits are. It is somewhat depressing that some First-tier Tribunals evidently still struggle to apply such authority. Given that they do, the judge’s words are a helpfully clear reminder of the correct approach.

Summary

The claimant was refused personal independence payment. The DWP took six months to make a decision when the claimant requested a mandatory reconsideration, and in total there was a gap of 10 months been the claimant’s initial decision and his First-tier Tribunal hearing. The claimant had mental health problems and took ‘potent’ medication for that. His condition had deteriorated by the time of his tribunal hearing. The tribunal proceeded without obtaining reliable evidence of the claimant’s condition at the time of his appeal or offering him the opportunity of an adjournment to seek representation.

Judge Mitchell allowed the claimant's further appeal and remitted the case to a new tribunal. The tribunal had erred in not turning its mind to whether the claimant had a reasonable opportunity to present his case and, if he had not, what needed to be done to allow that. In not so doing, it had failed to ensure that there was an ‘equality of arms’ between the parties to the appeal, so breaching the right to a fair trial at Article 6(1) of the European Convention on Human Rights (paragraphs 5 and 7). Among the relevant features of the case here were that the claimant’s condition had deteriorated since the decision under appeal so that evidence of his functioning at the date of the hearing would not necessarily assist his case, and that ‘the other party had delayed initiating the appeal proceedings for six months so that it may thereby have improved its chances of success’, while reducing those of the claimant (paragraph 6).

Comment from CPAG

This decision is authority that long delays in making a mandatory reconsideration may require a tribunal to pay extra attention to a possible need for more evidence or for the claimant to be represented. However, such delays will not inevitably result in such issues in every case. Much will depend on other relevant facts – eg, whether the claimant’s condition has changed since the decision under appeal, what more recent evidence is available and whether the claimant is represented.

Summary

The claimant had mental health problems. She appealed against a decision that she failed the work capability assessment. She indicated that she did not want an oral hearing as she did not want to go out due to her mental health problems, and could not afford to get a ‘medical letter’. The tribunal went ahead without a hearing. It noted that the claimant could not afford to get a letter but that it already had relevant medical evidence, and attempted to get a copy of a letter from the claimant’s GP about a previous appeal, but it was not available. The tribunal dismissed the appeal.

Judge Jacobs held that the tribunal did not err in law. He considered a number of arguments regarding how tribunal should take account of a claimant’s mental health problems when deciding whether to hold a hearing. All parties at the hearing before the Upper Tribunal accepted that the duty to make reasonable adjustments under section 29 of the Equality Act 2010 does not apply to First-tier Tribunals (as there was a specific exemption regarding judicial functions). Insofar as it holds otherwise, DC v SSWP [2014] UKUT 218 (AAC) should not be followed (paragraphs 9–10).

However, a tribunal is under a duty to take mental health problems into account when applying the ‘overriding objective’ to deal with a case ‘fairly and justly’, as required by rule 2 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, SI No.2685. On the facts of this case, the claimant had clearly indicated that she did not wish an oral hearing. It was beyond dispute that a telephone hearing was permissible, as is made clear by rule 1(3) (paragraph 29). The only previous decisions before the Upper Tribunal in which this has previously been considered (eg, SW v SSWP [2015] UKUT 319) (AAC)) were ones in which the claimants had raised the possibility themselves. It would be unrealistic to expect claimants always to do that unless they were notified of that possibility by the tribunal (paragraphs 29–30). The application of the overriding objective has to be ‘proportionate’. In this case, the tribunal’s reasons for proceeding were anything but formulaic and reflected that a proportionate amount of time had been devoted to the question of whether to hold one. Offering a telephone hearing was one possibility but, taking all the information the tribunal had into account in this case, that was not necessary in order to deal with the case fairly (paragraphs 32–36).

Decision in brief

Journeys considered are not necessarily local (SSWP v IV (PIP) [2016] UKUT 420 (AAC) approved) – what is required is a ‘general overall assessment’ which does not focus unduly on the length, be it long or short.

Summary

The claimant’s appeal to the First-tier Tribunal was against the refusal of her claim for personal independence payment (PIP). The tribunal dismissed her appeal, holding that she had ‘overstated’ the impact of her health conditions. 

Judge Wikeley allowed the claimant’s further appeal and remitted the case to a fresh tribunal. Although most of the claimant’s grounds for further appeal involved an attempt to re-argue the case on its factual merits (and so would not have led to permission to appeal), there was an issue arising from the fact that it seemed the tribunal had not considered certain evidence that had been added to the appeal bundle. He held that led to a point about how the tribunal had assessed the claimant’s credibility. In particular, it did not believe she had been medically advised not to drive for as long as she claimed, but that was in apparent ignorance of the further medical evidence which supported what she said. 

The judge agreed with the Secretary of State, who submitted that the tribunal had erred in not having regard to all the relevant evidence in finding that the claimant had ‘overstated’ her claim. Although tribunals were entitled to make their own findings about credibility and in general it was not for the Upper Tribunal to disturb that (per IP v SSWP (IB) [2010] UKUT 97 (AAC)), it was possible to do so where the finding on credibility involved an error of law. In this case, the tribunal had erred and may have reached a different conclusion on the claimant’s credibility had they been aware of the additional evidence. Further, in that case they may have gone on to award the claimant’s further points. 

Comment from CPAG

Fairness and natural justice need to be observed, as well as – as shown by the present case – considering the claimant’s evidence in the context of all the available evidence. See also the article ‘You’re unbelievable! Tribunals and claimants’ in Bulletin 291 (December 2022).

In this decision, the High Court rejected an argument that the benefit cap is unlawful as unjustified discrimination, a breach of the right to family life and irrational and/or unreasonable.

See the article on p5 of Bulletin 237 for details.

Note: this decision was appealed to the Court of Appeal and subsequently to the Supreme Court. See our summary of the Court of Appeal's decision: R (SG and others (previously JS and others)) v Secretary of State for Work and Pensions[2014] EWCA Civ 156, and of the Supreme Court's decision: R (SG and others (previously JS and others)) v Secretary of State for Work and Pensions [2015] UKSC 16.

Decision in brief

Claimant had ‘warning signs’ of seizure – awarded enhanced rate daily living component but refused mobility component – tribunal concluded could follow a journey safely as had warnings and seizures lasted ‘only’ 5–10 seconds – test regarding safety established by in RJ, GMcL and CS v SSWP [2017] AACR 32 involved assessment of likelihood and severity of potential harm – warning signs might be relevant to that but tribunal made inadequate findings about what they were and what the claimant could be expected to do – similarly, duration of loss of consciousness could be relevant but tribunal needed to explain why the short duration of the seizure was safe