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Summary

The claimant had learning difficulties. The First-tier Tribunal rejected his appeal against the decision that he failed the work capability assessment. The tribunal placed very considerable reliance on what the claimant was said to have told the examining healthcare professional about a typical day, and dismissed a supportive letter from a GP apparently on the basis that the GP was merely repeating what the claimant had told him.

Judge Gray allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal erred in giving inadequate reasons for not applying the ‘substantial risk’ exceptional circumstance at regulation 29 of the Employment and Support Allowance Regulations 2008 No.794. Potentially, the tribunal had also erred in relying on the claimant’s alleged insight into his own condition without offering an opportunity for him or his parents to attend the hearing. Depending on the level of difficulty, said the judge, ‘the possibility must always be considered in those with learning difficulties that they lack insight into their own condition… Tribunals should not be casual listeners’ (paragraph 10).

Also, the tribunal had apparently dismissed the GP’s letter on the basis that there was no indication it was based on anything other than what the claimant said. Given the letter was explicitly in support of the claimant’s appeal, it would be ‘perhaps unusual’ for a professional person to put forward such support if there was no element of independent knowledge or professional judgement (paragraph 13). The judge referred the fresh tribunal to the comments of Judge Wright in BH v SSWP (AA) [2013] UKUT 241 (AAC), where (at paragraph 14) he referred to the ‘regrettably overused mantra that the…GP’s letter’s explanation of the appellant’s restrictions…was of less evidential worth than the views expressed in the report because it was ‘just the GP reiterating what the appellant had told him’…A claimant’s GP is just as professional as any other doctor or healthcare professional who gives evidence to a tribunal, and save where a proper explanation is given as to why he or she would do this, should not be assumed to be a vehicle for repeating what the claimant has told the GP as opposed to offering the GP’s professional opinion.’

Summary

In this judicial review decision, the High Court dismissed arguments that the ‘two-child limit’ in child tax credit (CTC – and universal credit although that was not discussed specifically) was in breach of human rights obligations. The claimants were three families in different circumstances but all in receipt of CTC with a third or subsequent child born on or after 6 April 2017 for whom no child element of CTC was payable. They argued that the limit was in breach of the European Convention on Human Rights (ECHR). This was on the basis that: (1) the legislation directly breached Article 8 (right to family life) and Article 12 (right to marry and found a family; (2) the legislation breached Article 14 (prohibition of discrimination) when read with those Articles, or Article 9 (right to freedom of thought, conscience and religion) and Article 1 of Protocol 1 (right to possessions).

Mr Justice Ouseley dismissed all of those arguments. The judge could see no ECHR authority that held that Article 8 was directly engaged by the absence of any particular social security benefit or level of it (paragraph 58). He accepted the government’s description of the legislation as being to ensure that welfare spending was sustainable and fair to the taxpayer while protecting the most vulnerable. There was little or no evidence of direct interference with family planning. Neither Article 8 nor Article 12 were engaged directly (paragraphs 70–79). Regarding Article 14 (discrimination) and Article 1 of Protocol 1, the judge did not consider that an expectation of an increase in CTC for a third or subsequent child was enough to constitute a ‘possession’ (paragraphs 92–93). Neither was there sufficient link with Article 12 and the right to found a family (paragraph 94). Regarding Article 8 and discrimination, the two-child limit did not come within the ambit of Article 8. The judge considered that there was no removal of an existing benefit with a direct and real effect on family life so as to establish a sufficient link with Article 8 (paragraph 105). Further, there was no basis for ignoring the other state support for third or subsequent children that continued unaffected (paragraph 106). In any case, the judge considered the undoubted indirect discrimination against women to be justified as, given the aims of the legislation, it was not ‘manifestly without reasonable foundation’. The judge did not consider that ‘children with multiple siblings’ constituted a ‘status’ for Article 14 purposes (paragraph 125). Even if it were such a status, the differential treatment against this group was justified, for the same reasons as in relation to women (paragraphs 132–160). Further, although the United Nations Convention on the Rights of the Child might be a relevant interpretative aid concerning alleged discrimination against children, it was plain that the best interests of children overall had been a primary consideration, and so regard to that Convention did not reveal unjustified discrimination (paragraphs 209–212).

The judge did consider that, in the rules about exception to the two-child limit for non-parental caring arrangements, there was an unlawful irrationality in the requirement – in effect, for the cared-for child to be the third or subsequent child. There was no rational justification for a parent’s decision as to whether to have a child of their own to be affected by the separate decision of whether or not they should care for someone else’s child. The rules determining the ordering of the children for this exception were therefore unlawful (paragraphs 215–217).

Note: CPAG, who were acting for the claimants, has been granted permission for a further appeal to the Court of Appeal. The government has announced that it is not appealing the finding about the rule on ordering children, and will amend the rules so as to apply the finding to the exceptions about both non-parental carers and adoptive parents.

Summary

This decision of the Court of Appeal is on the Secretary of State’s appeal against the decision of the Upper Tribunal in SSWP v Carmichael and Sefton BC (HB) [2017] UKUT 174 (AAC) (Bulletin 259, p10). The issue was whether a First-tier or Upper Tribunal has the power to substitute its own remedy where it is established there has been a violation of the claimant’s human rights.

The Upper Tribunal had held that, in the case of secondary legislation, it had such a power. In this case therefore, where the claimant’s human rights had undoubtedly been breached by the ‘bedroom tax’ rules (regarding a couple unable to share a bedroom because of disability), the Upper Tribunal had ordered that his housing benefit be calculated without the reduction required. However, by a majority decision the Court of Appeal allowed the Secretary of State’s further appeal, holding that neither the First-tier nor the Upper Tribunal had the power somehow to disapply the bedroom tax rules. All they could do was make a ‘declaration’ of a breach of human rights, so that the claimant was able to pursue a claim for damages in the courts. Giving the lead decision for the majority, Lord Justice Flaux held that the Upper Tribunal had exceeded what was permissible and should have limited itself to making a declaration that the bedroom tax rules had violated the claimant’s human rights. That remedy was sufficiently effective as section 8 of the Human Rights Act clearly envisaged that, and in the present case the claimant had in any case received discretionary housing payments (paragraph 67).

In the dissenting judgement, Lord Justice Leggatt considered there was a distinction between violations by primary legislation, which could indeed only be subject to a declaration, and (as here) violations by subordinate legislation (and in which the violation was not inherent in the primary legislation). In such cases, there is no power to make a declaration and ‘no objection’ to declining to give effect to the offending rule, something which was indeed required under section 6 of the Human Rights Act (paragraphs 78–80).

Comment from CPAG

This decision does not doubt that the claimant’s human rights were violated (indeed the bedroom tax rules had already been amended in the light of the finding that they were). Rather, it holds that tribunals cannot actually remedy such a violation – even where that violation is not provided for in primary legislation. Arguably, this somewhat undermines the real value of the protection afforded by human rights rules, although the availability of discretionary housing payments also clearly influenced the court.

Decision in brief

CPIP/1722/2016 held that for an effective waiver of the right to an oral hearing an appellant must not be misinformed or deprived of material facts or information – in the present case, the tribunal should have considered the history of the previous adjournment and the claimants’ correspondence before proceeding without a hearing

Decision in brief

In order to qualify as an ‘orientation aid’ an item must be specialised in the sense that it has been designed for the specific purpose of assisting disabled people to follow a route safely – the mere fact that an item not so designed is used by a disabled person does not convert it into an ‘orientation aid’

Decision in brief

Activity 5 is about testing manual dexterity – ie, ability to use fingers, hands and (to some extent, at least) wrists – descriptor (c) is a measure of ability to hold a pen or pencil – the meaningful mark referred to does not create a test of intellectual capacity or literacy – ‘meaningful’ means capable of conveying meaning – random scribbling or doodling is not sufficient but a name, signature or some form of symbol such as a tick is sufficient

Decision in brief

There can be a ‘legal owner’ of an asset, with all the formal rights of ownership but no right to benefit from it, who holds the asset on trust for the ‘beneficial owner’ – in such cases it is the beneficial ownership that is relevant to entitlement to means-tested benefit (income support and housing benefit) – on the facts of this case, the claimant was the legal owner but only held a small share of the asset (a house) as a beneficial owner, and another person held the vast majority of the beneficial ownership – CH/715/2006 is not authority that it is legal ownership as opposed to beneficial ownership that is relevant to means-tested benefits

Decision in brief

Where basis of entitlement includes having been entitled to ‘qualifying benefit’ for incapacity or limited capability for work, the element continues in payment on an indefinite basis until the claimant either ceases to be entitled to WTC or to have a disability which puts her/him at a disadvantage in getting a job – regulation 9(8) the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002, No.2005 – not permissible to remove the element merely because entitlement to the qualifying benefit has now come to an end – this does not apply where the qualifying benefit was a specified disability benefit (eg, disability living allowance or personal independence payment)

Decision in brief

Prompting requires some active steps by another person and the mere presence of children does not amount to that – however, it may be that the claimant’s children did prompt him by actively encouraging him to undertake certain activities – and the effect of the children’s presence on the claimant may be evidence of a need for prompting

Decision in brief

‘If a carer’s allowance is in payment to someone claiming a disability benefit on their own behalf it is understandable for a tribunal to wish to examine that. However it is not axiomatic that the receipt of carer’s allowance precludes entitlement to PIP, and the enquiry cannot start from that premise’ – for example, a carer with physical health problems may be providing verbal support to a partner with mental health problems

Decision in brief

Tribunals can take a ‘robust approach’ to appellants who do not turn up for oral hearings that they have requested – but should then be a greater preparedness to set aside decisions where appropriate

Decision in brief

Where a concession is offered by a competent representative, a tribunal will ordinarily be entitled to accept it if it wishes – but that does not necessarily follow in the case of an unrepresented claimant – in such circumstances it should satisfy itself that the claimant has properly understood matters and is making an informed decision