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Summary

The claimant reported several health problems, including problems with pain and immobility in her knee. She was refused personal independence payment (PIP). The tribunal upheld that refusal, awarding her no points. In its reasons, the tribunal said that in 2022 a specialist had said that she had full functionality in both knees. The tribunal also said that at the start of the hearing the claimant was observed to walk in at a reasonable pace and at a normal gait, without a walking aid, and that her stated problems with weight bearing on one leg had not been apparent from the manner in which she had walked into the tribunal room. 

Judge Fitzpatrick allowed the claimant’s further appeal and remitted the case to a fresh tribunal. She provided full reasons ‘as I consider it may be helpful in assisting tribunals when dealing with observations made on the day of hearing, adopting a holistic approach to the assessment of evidence (particularly where that evidence may be contradictory), and how this should be addressed in the written reasons’ (paragraph 5). The tribunal had erred in its approach to the evidence. Firstly, in relying on the comments of the specialist in 2022, it made no reference to the findings of the healthcare specialist’s report which referred to (among other things) patella tendonitis and degenerative meniscus tear in the right knee with pain and discomfort, evidence from the claimant’s GP saying she could not stand for a long period due to pain in her right knee, and an MRI report referring to osteoarthritis in her right knee. It was incumbent on the tribunal to consider all the evidence, and to explain why it preferred the evidence of the specialist’s 2022 report to the evidence of the GP and the MRI report. Failure to do so was an error of law. 

Regarding what the tribunal said about its observations of the claimant at the hearing, it was clear that the tribunal did attach weight to those; but it was not clear whether it gave the claimant the opportunity to address this. That was a further error of law. 

The tribunal, held the judge, 

‘...should have afforded the claimant the opportunity to address inferences drawn by it from its observations on the day of the hearing which it intended to rely on and which were material to its findings of fact. Failure to do this is, at the very least, a breach of the principles of natural justice. On this point note the helpful guidance set out by Upper Tribunal Judge Wikely in KH (by CH) v SSWP (DLA) [2022] UKUT 303 (AAC) and the principles adumbrated by Judge Poole QC (as she was then) in CC v Secretary of State for Work and Pensions [SSWP] (ESA) [2019] UKUT 14 (AAC)’ (paragraph 10). 

Comment from CPAG

This decision, written with intent to provide guidance, is notable as a very clear expression of the duty on a tribunal to give a claimant a chance to comment on inferences it has made from its observations of them. It should be noted that in CC v SSWP it was held that although there was no general duty to put matters of inference to the claimant, the caveat was that natural justice required it where it was a new matter at the hearing (not foreshadowed in the papers). In the present case, the judge clearly considered that this natural justice point arose given the amount of evidence in the papers supportive of the claimant’s case, which the tribunal apparently ignored.

Summary

The claimant had shared care of his son with his ex-partner, the child’s mother. This included that the son spent an equal number of nights living with him and with his mother. The First-tier Tribunal found that as a fact, but held that under regulation 4(4) of the Universal Credit Regulations 2013 (SI No.376), only one person could be treated as responsible for the child, that person was the one with the main responsibility, and in this case, on the facts, that was the child’s mother. Therefore, the claimant could not have the child included in his ‘extended benefit unit’ for UC and could not be allocated a room for the child as part of his entitlement to the housing element of UC. The claimant appealed, arguing that regulation 4 was in breach of the Equality Act 2010 and the prohibition on discrimination in Article 14 of the European Convention on Human Rights (ECHR). 

Judge Wright dismissed the claimant’s further appeal. The Equality Act could not assist the claimant in this appeal (whatever the claimant’s exact argument, not set out by the First-tier Tribunal, about that was), as the Upper Tribunal did not have jurisdiction to rule on such arguments. The claimant’s argument about the ECHR was that regulation 4(4) indirectly discriminated against him as a male parent with exactly shared care of a child, compared to female parents with shared care of a child. However, as was eventually conceded by the claimant before the Upper Tribunal, extant caselaw on the identical argument in other benefit cases had consistently held that there was no discrimination against male parents in this situation, or that any discrimination was justified – ie, and so not unlawful. The long line of authority about this included: Humphreys v Her Majesty’s Revenue and Customs [2012] UKSC 18, reported as [2012] AACR 46; TD v SSWP and London Borough of Richmond- Upon-Thames (HB) [2013] UKUT 642 (AAC), JB v SSWP and Basingstoke and Deane BC (HB) [2014] UKUT 223 (AAC); MR v North Tyneside Council and SSWP [2015] UKUT 34 (AAC); and R (Cotton) v SSWP [2014] EWHC 3437 (Admin). 

Briefly reviewing his reasons for rejecting the Article 14 arguments, Judge Wright doubted that the limited evidence before him established that regulation 4(4) indirectly discriminated against male parents. But even if that were the case, the Secretary of State had shown that any such discrimination was justified, in that it was not manifestly without reasonable foundation and had an objective and reasonable justification. ‘It is this aspect of the argument on which previous decisions referred to above have foundered,’ said Judge Wright, ‘and this appeal is no different’ (paragraph 29). The previous caselaw authority had identified the good reason for targeting resources at one household, and the increased costs involved in ‘splitting’ the benefits for them. Also, discretionary housing payments could assist someone like the claimant in this case (and in fact had assisted him). Finally, it was relevant the UC regulations had been passed by affirmative resolution – and so debated in parliament. That affected the intensity of review that was appropriate before the Upper Tribunal (per R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16, reported as [2015] 1 WLR 1449), and given that the principle of concentrating resources on one parent had been adopted consistently across a number of benefits, the absence of concerns in parliament about its application to the UC rules could be viewed as an indication of approval. 

Comment from CPAG

On the facts of the case, it was accepted by all parties that the child’s mother had ‘main responsibility’ for him. The judge mentioned her retention of child benefit as part of the evidence about that. More widely, however, it is worth remembering that, although child benefit is often used by the DWP as a proxy, the UC rules do not specify child benefit entitlement as determinative either of responsibility or main responsibility for a child.

Decision in brief

Tribunal should have adjudication history available so that it can properly see the terms of the decision under appeal – advice from work coach to seek placement in support group will be relevant evidence in an appeal against refusal to put in support group – official guidance is that adjudication histories and, where relevant to the appeal, ‘action plans’ recording what work-related activity the claimant is expected to undertake should be included in appeal submissions – but it ‘remains to be seen’ whether this is observed in practice.

Decision in brief

Enforcement reference to the Upper Tribunal invalid as under rule 7(3) can only arise from failure to comply with direction of the First-tier Tribunal – DWP not a legal person – can only be made by the Chamber President or a regional tribunal judge of the Social Entitlement Chamber, not a district tribunal judge.

Decision in brief

On the facts of the case, the placing of the money in the joint bank account meant that the money was held in the account on a bare trust for the claimant, and so it should have been disregarded as capital under paragraph 17 of Schedule 8 of the Jobseeker’s Allowance Regulations 1996 – tribunal erred in requiring money to be in ‘personal injury trust’, as the requirement is that the funds ‘derived from’ the compensation are held in ‘a trust’.

Decision in brief

Claimant had said she wanted a hearing of her appeal about failure of the work capability assessment – but was not notified of a date, and tribunal decided appeal against her without a hearing and without consulting her, as it considered it was able to make a decision without a hearing – tribunal erred in breaching rule 27 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 – it did not get the agreement of the parties to the appeal – this was so even though the tribunal found the claimant scored sufficient points to pass the work capability assessment, as it failed to put the claimant in the support group, and so she could have got more from her appeal.

Decision in brief

Need for benefit to be ‘comparable’ – pension credit for claimant in receipt of a Polish pension additional amount for severe disability – to be included in the claimant’s entitlement, because she receives Dodatek Pielenacyjny, which is in her circumstances equivalent to attendance allowance

Decision in brief

Contrary finding in CH/844/2002 disapproved – not eligible under regulation 12(1)(d) (Kirklees MBC v JM [2018] UKUT 219 approved) – alternative ground under 12(1)(f) (mooring charges) not considered.

Summary

On supersession, the claimant has his award of the enhanced rates of both components of personal independence payment (PIP) reduced to the standard rate. Prior to the hearing of the claimant’s subsequent appeal, the district tribunal judge sent out directions which included telling the claimant that the tribunal would ‘have to’ consider which scoring descriptors should apply, and directing that the Secretary of State must attend – ie, via a presenting officer. In the event, no presenting officer attended. The tribunal’s decision notice said that the decision on supersession was ‘confirmed’ but (contrary to that) that the claimant was not entitled to either component of PIP at all. The tribunal’s statement of reasons said, in effect, that the tribunal was entitled to reconsider everything, the claimant had been warned of that, and that the Secretary of State had decided not to attend.

Judge Wright allowed the claimant’s further appeal and remitted the case to a fresh tribunal. The tribunal had erred in that the decision notice wrongly stated it confirmed the decision on supersession, when in fact it made a more adverse decision for the claimant. As stressed in SSWP v JL [2018] UKUT 291 (AAC), it is essential that the decision notice is legally coherent. The tribunal proceeded in the absence of a presenting officer despite having directed attendance, and had not shown it had properly considered the waiving of the requirement. ‘The presenting officer’s failure to attend’, held the judge, ‘was a matter the First-tier Tribunal could have taken into account by, for example, waiving the requirement or requiring it to be met. But by proceeding on the basis that it was open to that official to choose whether to attend or not, the First-tier Tribunal misdirected itself and thereby erred in law.’ (paragraph 12)

The tribunal had also erred in its approach to reconsidering all the descriptors and making a decision less favourable to the clamant than the one she had appealed against. This might not have been so, said the judge, ‘if the law required the First-tier Tribunal to decide all and any issues going to entitlement that arise on the evidence. But that is not the law. Under section 12(8)(a) – which provides that the First-tier Tribunal “need not consider an issue that is not raised by the appeal” – the tribunal is only required to decide the issues that are raised by the appeal and has a discretionary power to consider other issues’ (paragraph 16). The tribunal had not explained if or how it had exercised that discretion, and it was not possible to see from the papers that the claimant had herself put all the descriptors into question. Further, in possibly obiter comment, the judge was not satisfied that the claimant had been given adequate notice that issues neither she nor the Secretary of State had raised were issues arising on the appeal. Although the district tribunal judge had written in advance, taking that approach was something that could only properly be done by the three-person tribunal that decided the appeal (MB and others v SSWP (ESA and DLA) [2013] ULKUT 111 (AAC); [2014] AACR 1).

Comment from CPAG

The decision is a correction (not the first) to a First-tier Tribunal wrongly assuming that it either was obliged to reconsider all aspects of a decision or that it was simply entitled to do so without proper reason. The observation that only the tribunal can warn a claimant of a wider reconsideration, even if strictly obiter, is also of note.

Summary

The claimant began inputting his details and evidence onto the online UC claim form on 2 December, but logged out before returning to complete it and submit the finalised form on 6 December. The DWP took his date of claim as the date the finalised form was submitted – ie, 6 December. The claimant argued that his date of claim should have been 2 December as beginning completion of the form on that date, logging out and then completing it later should be regarded as having made a defective claim on the earlier date, which was then corrected within the time permitted – ie, one month or potentially longer.

Judge Wikeley rejected the claimant’s argument and held that the date of claim was 6 December – ie, the date the claimant hit the ‘submit’ button on the online form and so sent the claim in. The relevant legal provisions included in particular regulations 8 and 10 of the Universal Credit, Personal Independence Payment, Jobseeker's Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013, SI No.380. The judge noted that regulation 10 is the one which sets the date of the claim, and under regulation 10(1)(a) that the ‘default rule’ is that the date of claim is, ‘in the case of a claim made by means of an electronic communication in accordance with regulation 8(1), the date on which the claim is received at an appropriate office’ (paragraph 33).

The judge rejected the claimant’s argument that beginning the completion of the online form and then logging out to complete it later constituted a ‘defective claim’. Crucially, for the judge, there was no valid comparison (as argued for the claimant) with the housing benefit rules, in which claiming via a claim form or other written method was possible, and so rules allowed the date of claim to be treated as earlier than that on which it was received – eg, to allow for postal delays and DWP opening hours. It was this context in which the Court of Appeal made its decision in Novitskaya v London Borough of Brent (Secretary of State for Work and Pensions intervening) [2009] EWCA Civ 1260; [2010] AACR 6. The universal credit context however was very different. Universal credit, said the judge,’ is an exclusively online benefit – a claim can be made literally at any time, 24/7. It follows that no allowance need be made for e.g. postal delays or DWP office opening hours’ (paragraph 64). There was no direct read across from the housing benefit situation: ‘The Court of Appeal’s observations in Novitskaya were premised on the relatively relaxed statutory requirements for the form of a claim for most traditional social security benefits… whereas the universal credit claims regime, as described above, is far more prescriptive. One cannot assume…that the generous Parliamentary intention identified by the Court of Appeal in Novitskaya necessarily holds good in the new scheme’ (paragraph 65). The judge was not clearly able to identify of exactly what a ‘defective’ claim for universal credit might be. In any case, he was not satisfied that ‘an incomplete online universal credit claim form, even if the data is held on the Secretary of State’s official computer system, amounts to a defective claim in circumstances where the claim has not been submitted…’ (paragraph 102).

Comment from CPAG

CPAG represented the claimant in this case. The decision contains a comprehensive survey of the relationship of the practical reality of claiming universal credit to the relevant legal provisions. The outcome is obviously disappointing for any claimant who undergoes delay submitting a claim.

Summary

In this decision, the High Court rejected an argument that the exclusion of ‘pre-settled status’ under the EU Settlement Scheme as a valid right to reside for benefit purposes is unlawful.

The claimants, both Romanian nationals, had been awarded pre-settled status under the Settlement Scheme – ie, under the UK Immigration Rules. Exclusions of that as a valid right to reside for benefit were introduced by the Social Security (Income-related Benefits) (Updating and Amendment) (EU Exit) Regulations 2019. The claimants argued that the change was unlawful discrimination on grounds of nationality, contrary to Article 18 of the Treaty on the Functioning of the European Union (the argument actually focused on the amendment to regulation 9 of the Universal Credit Regulations). Specifically, they argued that, applying existing caselaw authority, if an EU national is lawfully resident in another EU member state on the basis of a right of residence arising under that state’s domestic law (eg, via pre-settled status), s/he may not be subject to discrimination on grounds of nationality.

Mr Justice Swift accepted the Secretary of State’s argument that, applying the Supreme Court in Patmalniece v Secretary of State for Work and Pensions [2011] 1 WLR 783, any discrimination in these cases was indirect rather than direct discrimination and so capable of justification. Further, held the judge, the habitual residence test (which included the right to reside requirement) in the Universal Credit Regulations was justified (and so not unlawful), and all the amendments made regarding the exclusion of pre-settled status did was to ‘maintain the status quo’ – ie, so that an EU national had to have a right to reside under the existing right to reside rules, and ‘maintain the prior rationale’ for the habitual residence test in the Universal Credit Regulations (paragraph 32).

Comment from CPAG

Though the coronavirus pandemic was not part of the context for the case, the decision underlines the particularly harsh environment for EU nationals effectively trapped in the UK who do not have a right to reside other than via pre-settled status. CPAG has applied for permission to appeal to the Court of Appeal.

Note: for the Court of Appeal's decision, see our caselaw summary Fratila and Tanase v Secretary of State for Work and Pensions and another [2020] EWCA Civ 1741. This was subsequently appealed to the Supreme Court, see Fratila and another v Secretary of State for Work and Pensions [2021] UKSC 53.

Decision in brief

Claimant failed to disclose the cessation of his disability living allowance and his wife’s carer’s allowance (CA) – that led to an overpayment, but the calculation should correctly have included an offset (ie, reduction) in the amount due to the cessation of the CA and the consequent need to disregard that as income – regulation 13(1)(b)(ii) of the Social Security (Payments on account, Overpayments and Recovery) Regulations 1988 (SI No.664) applies – that requires offset on the notional basis that any misrepresentation or failure to disclose had been remedied (ie, so that the cessation of CA as income was to be taken into account) – that is a hypothetical approach, so the Secretary of State’s refusal to offset on the ground that the cessation of the CA had to be reported as an advantageous change of circumstance within a month was wrong.