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Summary

The claimant was held to have been overpaid income-based JSA and also to be liable to repay an overpayment of £12,460.09. The issue before the Upper Tribunal was whether the claimant had misrepresented her capital when claiming JSA – ie, so as to provide a ground for recovery of the overpayment, under section 71 of the Social Security Administration Act 1992. At the First-tier Tribunal, the Secretary of State had acknowledged that the JSA claim form was no longer available, and argued that the overpayment was recoverable on the alternative ground of failure to disclose a relevant fact (also under section 71). The tribunal instead decided that, the absence of the claim form notwithstanding, the correct ground for recovery was misrepresentation.

Judge Hemingway allowed the claimant’s further appeal to the extent that he decided that the issue of whether the claimant had misrepresented the amount of her capital when claiming JSA was to be reconsidered by a fresh tribunal. He did not revise the associated decision that the claimant was not entitled to income-based JSA (ie, and so had indeed been overpaid) because of excess capital. The judge considered that the Secretary of State’s alternative ground of failure to disclose was not persuasive. Where it is said something is not disclosed on a claim for benefit which results in an overpayment (ie, as distinct from an ongoing award), ‘then the basis for recovery…can only be misrepresentation’ (paragraph 26). It was certainly open to the tribunal to adopt a different ground for recovery to that relied upon by the Secretary of State; however, an explanation for the tribunal’s thinking about that was required, and the claimant was required to have been put on notice and given an adequate opportunity to meet this change without being disadvantaged by surprise (R(SB) 40/84 cited); the tribunal had failed to do that and so had erred (paragraphs 28 – 30).

The mere absence of the claim form did not prevent the tribunal from finding that the claimant had misrepresented her savings. Depending on the facts, a tribunal can reconstruct content of a missing form, and in this case, there was evidence that the claimant had also misrepresented her savings in claims for employment and support allowance, housing benefit and a discretionary housing payment. Although that did not necessarily mean she had misrepresented her savings when claiming JSA, there was ‘sufficient evidence…to make it legally permissible’ for the tribunal to conclude that she did (paragraph 35 – 38). However, the new tribunal was to reconsider whether it was right not to limit itself to the Secretary of State’s ground of failure to disclose, and if not, whether the claimant had misrepresented her savings, the claimant having been given the opportunity to respond specifically to that (paragraph 40).

Comment from CPAG

This decision underlines that it is for a tribunal to decide whether there is a ground for recovery of an overpayment under section 71; however, if the ground identified has not yet been put to the claimant, then s/he must be given adequate opportunity to address it. As in other authority (eg, VL v SSWP (PC) [2018] UKUT 403 (AAC), Bulletin 269, p11), the mere absence of the relevant claim form does not preclude a finding of misrepresentation, although the facts are crucial.

Summary

This decision of the Court of Appeal concerns whether a Latvian national had a permanent right to reside for pension credit purposes, on the basis of having 'resided' in the UK for more than three years prior to ceasing work on reaching pension age or having taken early retirement. In particular, the Court considered two questions: (1) whether for these purposes 'resided' meant merely being present or instead residing 'legally' (ie, with a right to reside), and (2) whether the extension of the worker registration scheme (WRS) in 2009- 2011 was lawful. These questions had been considered in this case by the Upper Tribunal in TG v SSWP (PC) [2015] UKUT 50 (30 January 2015).

On the first question, the Court held that in this context 'resided' meant 'legally reside' (ie, with a right of residence), so that mere presence for more than three years was insufficient. The relevant wording was in the provision about acquisition of a permanent right to reside after more than three years' 'residence', at Article 17(1 )(a) of the so-called 'Citizens Directive', EC 2004/38/EC. Giving the lead decision of the unanimous decision of the Court, Lord Justice Rupert Jackson considered that the natural meaning of the wording was that of legal residence, and that accorded with previous caselaw and in particular with the opinion of the Advocate General in the decision of the Court of Justice of the European Union in Secretary of State for Work and Pensions v Lassal (Child Poverty Action Group, intervening) [2011] All ER (EC) 1169 (paragraphs 49-50). On this point, the Secretary of State's appeal against the decision in TG succeeded.

However, it had also been held in TG that the extension of the WRS in 2009-2011 was unlawful, on the basis that it was not- as required - proportionate. On this point, the Court upheld the decision in TG and rejected the Secretary of State's appeal. Reviewing the reasoning of the Upper Tribunal in TG, the Court could find no fault with it. Although the WRS was lawful when introduced in 2004, 'the world had changed by 2009' (paragraph 77). Extension of the WRS was not expected to make any substantial contribution to alleviating disturbance to the UK labour market, and the Court concluded that the Upper Tribunal did not err in holding that the extension of the WRS was disproportionate and therefore incompatible with European Union law (paragraphs 78-81).

Note: this case proceeded on appeal to the Supreme Court, see our caselaw summary Secretary of State for Work and Pensions v Gubeladze [2019] UKSC 31.

Summary

This decision of the Supreme Court arises from a challenge to the decision of the Court of Appeal in this case (see our caselaw summary Secretary of State for Work and Pensions v Gubeladze [2017] EWCA Civ 1751). Two questions were considered: (1) whether the extension of the worker registration scheme (ie, continuing the requirement of nationals of A8 European Union (EU) member states to register employment) was lawful; and (2) whether the ‘residence’ referred to in the rules for permanent right to reside after three years’ residence in the UK followed by ceasing work meant ‘legal’ residence (ie, with a right to reside) or merely ‘factual’ residence – ie, simply residing in the UK.

The court held that (as held by the Court of Appeal) the extension of the worker registration scheme (the WRS) in 2009 was unlawful. That was because it failed to satisfy the principle of proportionality. Contrary to the argument of the Secretary of State, there was no good reason to depart from the decision of the House of Lords in Zalewska v Department for Social Development (Child Poverty Acton Group intervening) [2008] UKHL 67; [2008] WLR 2602 that any requirements of the WRS were imposed pursuant to provisions permitting derogation from EU rights and so had to be proportionate (paragraph 44). Further, although there was evidence that removing the WRS would have a small effect on the UK labour market, the Secretary of State had not provided any evidence as to how she sought to balance that against the significant detriments resulting from continuing the WRS for employers and migrant A8 workers (paragraph 56). Neither Judge Ward in the original Upper Tribunal decision nor the Court of Appeal had erred in applying the correct proportionality analysis and finding that the detriments were substantial and serious, and were plainly entitled to conclude that the extension of the WRS was disproportionate and so unlawful under EU law (paragraphs 70–74).

Regarding the meaning of ‘residence’ for permanent residence after three years’ residence followed by cessation of work, the context here was the wording of the relevant provision of Article 17(1)(a) of the ‘Citizens Directive’ (Directive 2004/38/EC). The court decided that such residence meant merely ‘factual’ residence rather than ‘legal’ residence. Considering both the purpose of Article 17 and the language used in the provision (which, unlike in Article 16, did not require the person to have ‘resided legally’), the court concluded that the court of Appeal had erred in interpreting Article 17(1), whereas Judge Ward in the Upper Tribunal had correctly concluded that the ‘residence’ referred to was factual residence (paragraphs 76–92).

Decision in brief

Claimant ‘sacrificed’ some earnings under a contractual agreement to forego an amount of cash pay in return for the employer’s agreement to make an employer’s contribution to the employee’s occupational pension – held that did not form part of the employee’s earnings as they fell to be excluded as a ‘payment in kind’ under regulation 95(2) of the Employment and Support Allowance Regulations 1998 – approach taken in R(CS) 9/08 approved and applied

Decision in brief

All this was misconceived: the application had been made on time and not been withdrawn and so remained pending before the tribunal – the appointee was not dissuaded and eventually their application for permission to appeal was dismissed by the Upper Tribunal – but Upper Tribunal judge wanted observations on tribunal’s direction to be published

Decision in brief

The local authority terminated her housing benefit by ‘treating’ her as having excess capital, originally as someone analogous to a sole trader or partner in a company, under regulation 49(5) of the Housing Benefit Regulations 2006 – before the First-tier Tribunal, the local authority said it had revised that and instead ‘treated’ the claimant as having ‘actual’ capital in the company, under regulation 43 – the tribunal misdirected itself in saying that that it refused the claimant’s appeal by treating her as possessing capital in the form of a share of the capital value of the companies under regulation 49(5), but also saying that regulation 49(5) was discretionary and that the local authority had validly decided not to exercise it in this case – the tribunal therefore failed to identify any ground for treating the claimant as possessing capital above the relevant limit – it was an available option instead to calculate the capital the claimant actually held in the companies, by identifying the value of her shareholding in them – regulation 49(5) applies where that option is not used

Summary

The appeal before the First-tier Tribunal concerned decisions holding that the claimant (now deceased) had been overpaid pension credit regarding several claims made between 2005 and 2020, and that these were recoverable from his estate as they had been caused by his past misrepresentations concerning his capital. The tribunal upheld those decisions. The executor of the estate appealed to the Upper Tribunal on various grounds. Permission to appeal was granted only on the ground that the tribunal should have considered whether to adjourn in the light of evidence described by the presenting officer at the hearing, to the effect that departmental records regarding one of the claims was possibly still available, but had not been provided to the tribunal. 

Judge Perez allowed the further appeal on that ground, and directed that a new tribunal must consider afresh whether the overpayment relating to the claim in which the departmental evidence might still be available was recoverable. The tribunal should have considered adjourning to get that evidence, even though an adjournment had not been requested by the representative of the executor of the estate. Specifically, said Judge Perez, the tribunal had ‘erred in failing to explore whether the evidence was still available...Whether that meant adjourning the whole hearing or just the question regarding [the claim in question], that possibility should in my judgement have been explored’ (paragraph 14). 

The First-tier Tribunal had (in itself refusing permission for a further appeal) pointed out that there had been no application to adjourn. But that was not conclusive. Judge Perez said: ‘Where the failure to seek an adjournment was a failure by an experienced representative, an argument might be made that the appellant is fixed with that failure...’, but that here the level of the representative’s experience may not have been higher, and ‘... in any event, the First-tier Tribunal’s jurisdiction is inquisitorial’, and in this case the tribunal should have followed up on ‘the possibility of not having to piece together evidence’ regarding the claim in question, in the way it had been obliged to do regarding the other (older) claims (paragraph 15). 

Comment from CPAG

Note that the judge did say that a failure to request an adjournment by an experienced representative may preclude a further appeal on the basis that the tribunal should have adjourned. Arguably, where (as in this case) the need for an adjournment is clear, then a failure by the tribunal will always be an error, as the tribunal is exercising an inquisitorial jurisdiction. But clearly, representatives must be alive to the need to request an adjournment and not rely on the tribunal.

Summary

The claimant’s UC claim was made on 25 February 2022 and he was awarded it from that date. On 17 May 2022, he requested ‘backdating’ to 1 November 2021, the date on which he became unemployed after giving up work due to chronic back pain. That request was refused on the grounds that it was late. Following an unsuccessful mandatory reconsideration, the claimant appealed. The First-tier Tribunal dismissed the appeal, holding that he could have made hjs claim earlier by claiming by telephone. 

Upper Tribunal Judge Jones upheld the claimant’s appeal and remitted the case to a fresh tribunal. The tribunal had held that the claimant could reasonably have been expected to have claimed earlier than he did, because he could have claimed by telephone. But the tribunal had erred in law in approaching the question too narrowly and making insufficient findings of fact. 

One of the grounds for backdating, in regulation 26(3) of the Universal Credit (Claims and Payments) Regulations 2013, is that the claimant ‘has a disability’. That is not defined in the regulations, but on the facts, that was the case here (as the tribunal had accepted), as the claimant had chronic back pain of sufficient severity to oblige him to have given up work. Regulation 26(2) requires not only that one of the backdating grounds in subparagraph (3) applies but also that ‘as a result of that circumstance...the claimant could not reasonably have been expected to have claimed earlier’, so that a causal connection between the claimant’s disability and not claiming earlier was required. But – as the judge also agreed – what was reasonably expected here ‘must be assessed against the background of the claimant’s circumstances as a whole’ (paragraph 39). In this case, the claimant had no prior knowledge of the benefit system, including the possibility of claiming by telephone, and did not speak English as his first language. He argued that that was relevant to the regulation 26(2) test. The judge agreed but said that if someone in similar circumstances ‘could reasonably have been expected to have discovered UC, and the means of claiming it’, so that the claim could have been made even just one day earlier, then backdating could not apply. However in this case, the tribunal, in only considering whether the claimant’s back pain stopped him making a telephone claim, appeared ‘to have unduly narrowed its view’ and failed to have regard to the claimant’s wider circumstances, so that ‘it failed to properly to consider what a hypothetical person with the appellant’s disability could reasonably have been expected to do, given his knowledge of the benefit system and the possibilities for acquiring information about benefit entitlements and procedures available to him’ (paragraphs 46–48). A related failure was making no findings that the Secretary of State would have allowed the claimant to claim by telephone. 

Comment from CPAG

As this decision illustrates, merely positing a telephone claim as a viable alternative method of claiming will not be sufficient to refuse ‘backdating’. All the facts must be considered, including whether the claimant would have been permitted to claim by telephone (most are not).

Summary

The claimant had been working but became ill. She got SSP and her entitlement to working tax credit (WTC) continued, as she was treated as still in qualifying remunerative work. But when her SSP finished after 28 weeks, she moved on to ESA and HMRC terminated her entitlement to WTC. The claimant appealed to the First-tier Tribunal, arguing that her entitlement to ESA meant that she could be treated as being in qualifying remunerative work for a further 28 weeks. The tribunal allowed the appeal.

Judge White allowed the further appeal of HMRC, and substituted a decision that the claimant was no longer entitled to WTC on the expiry of her 28-week entitlement to SSP. In so holding, the judge had to construe regulation 6 of the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002, SI No.2005. That provides that a claimant can be treated as being in qualifying remunerative work (and so entitled to WTC) for up to 28 weeks while s/he is paid, among other benefits, both SSP and ESA. However, the judge rejected the argument that that meant there could be two consecutive periods of 28 weeks – ie, one while paid SSP followed by another while paid ESA.

He considered the ‘underlying purpose’ of regulation 6 ‘to be to regard a person as meeting the conditions of entitlement to working tax credit for a period coterminous with the maximum period for which statutory sick pay is paid; that is 28 weeks’ (paragraph 16). Also, the judge considered that the effect of regulation 6(3) was to require ‘the person to be actually in qualifying remunerative work “immediately before the beginning of the period” as precluding the subsequent period when the claimant was in receipt of an employment and support allowance from starting a further 28 week period of entitlement to working tax credit…’(paragraph 20). Similarly, he considered that the WTC four- week run-on did not apply after the 28 weeks on SSP, ‘since the requirement is that the four week “run-on” period…must follow “immediately” from the person’s cessation of work or reduction in hours’ (paragraph 22).

Comment from CPAG

It should be noted that regulation 6(3) does not itself require the claimant to have ‘actually’ been in work immediately before getting ESA; that is the judge’s interpretation. Arguably, closer attention could have been paid to whether being ‘treated as’ being in work immediately before getting ESA (ie, while on SSP) could count, not least because that is widely understood to have been HMRC policy, at least until recently. In connection with that, it could also have been noted that regulation 4, which provides the definition of when someone actually in work is in ‘qualifying remunerative work’, itself deems claimants who satisfy the condition to be ‘treated as’ engaged in qualifying remunerative work.

Summary

The claimant was receiving child tax credit as a single person. The HMRC decided that she had been overpaid as she was living with another person as husband and wife. That decision was made substantially on the strength of the alleged cohabitee’s ‘financial footprint’ as revealed in reports from a credit reference agency (Equifax) together with HMRC’s own records, and after a telephone call with HMRC in which the claimant said the alleged cohabitee merely used her address as a correspondence address. The claimant appealed and provided further information when requested by HMRC, including some she had already provided before. The First-tier Tribunal dismissed the appeal in the claimant’s absence, even though she had arrived late at the venue and asked to be allowed to give evidence.

Judge Rowland held that, on the facts of the case, the tribunal erred in failing to consider the claimant’s case when she arrived late, and in giving ‘wholly inadequate’ reasons for its decision (paragraphs 17–18). There were a number of defects in the HMRC's approach to its decision and submission to the tribunal, which the tribunal, partly because it refused to take evidence from the claimant, failed to address. Judge Rowland said, ‘There is no doubt that the evidence obtained by HMRC raise a number of questions for the claimant to answer…However, what is striking about this case is the complete failure of HMRC to ask the necessary questions before making its decision. Realistically, that probably required HMRC to interview the claimant and put to her the inferences it drew from the Equifax reports, rather than ask questions in writing, but it scarcely attempted even the latter…’ (paragraph 6).

The HMRC also conceded to the Upper Tribunal that it had not provided to the tribunal information and documents provided by the claimant. That was a breach of its duties to the tribunal and left it with no way of knowing whether it had all the relevant evidence from the claimant (paragraph 8). Had the claimant been able to give evidence at the tribunal, the ‘defects’ in the HMRC approach could ‘probably’ have been cured (paragraph 9).

Note from CPAG

For more on HMRC and tribunal decisions in such cases, see the article on p6.

Summary

The claimant was entitled to an indefinite award of the high rate mobility component of DLA. Following a report in October 2013 of a change in circumstances, the DWP ‘invited’ him to claim PIP. In March 2014 it was decided that the claimant was entitled to PIP at the enhanced rate of both the mobility and daily living components; however, his entitlement was not to begin for approximately one month after the PIP award decision and was for a fixed term of three years. The claimant appealed to the First-tier Tribunal. However, following an application by the Secretary of State, the tribunal struck the appeal out, on the basis that the start date for the PIP award was correctly fixed and that the tribunal ‘felt’ that a fixed award was appropriate, that the DLA indefinite award was based on different criteria and therefore that the decision was correct.

Judge Mitchell allowed the claimant’s further appeal in part. The tribunal had erred by giving inadequate reasons for fixing the period of the award at three years, and in striking the appeal out on that basis. The tribunal also erred in striking this part of the appeal out without considering whether the claimant had a ‘reasonable prospect of success’. However the tribunal did not err in striking out the part of the appeal that related to the start date of the PIP award. That date was fixed by regulation 17 of the Personal Independence Payment (Transitional Provisions) Regulations 2013, SI No.387. There was no discretion to use a different start date, and that date, fixed by reference to the date of the PIP award, not the date of claim, had been correctly identified by the decision maker and endorsed by the tribunal (paragraphs 36–38).

Regarding making the award for a fixed period of three years, the tribunal had erred by giving inadequate reasons. Simply to rely on the changed legislation was an insufficient reason, and the tribunal needed to explain why an indefinite award should not apply and why a three-year period was appropriate (paragraphs 51–53). There was no doubt that there was a right of appeal about a decision not to make an indefinite award and, where a fixed-term award is made, about the period of the award (paragraph 76). However, in this case the tribunal (a judge sitting alone) was considering an application for striking out for no reasonable prospect of success, and only had jurisdiction regarding that question. The tribunal, in fact, named no finding about that and strayed into deciding the substantive matter of the duration of the award, so making an additional error (paragraph 86). The judge set the striking out of that part of the appeal aside and, as he considered that on the available evidence it could not be said the claimant had no reasonable prospect of success, refused himself to strike it out. The question of whether there should be an indefinite award or, if not, the length of a fixed award was therefore remitted to a new tribunal (paragraphs 88–89).

Summary

The claimant had been entitled to DLA. He contacted the DWP, but exactly what he said in this communication was disputed between the claimant and the DWP. The claimant alleged that all he did was to raise a general query about the DLA to PIP transfer process and did not, as alleged by the Department, report a relevant change of circumstances. In any case, it was taken as such a report and the claimant was then invited to claim PIP, which he did. He was not awarded any PIP, a decision which was upheld by a subsequent First-tier Tribunal.

Judge Mitchell dismissed the claimant’s argument that the tribunal erred in law in proceeding on the basis that the claimant had reported a change of circumstances and failing to deal with his argument to the contrary. The Secretary of State had a general power to invite a person receiving DLA to claim PIP, and it was not actually required that the claimant had ‘triggered’ the exercise of this power by, for example, reporting a change of circumstance. Specifically, under regulation 3(1) of the Personal Independence Payment (Transitional Provisions) Regulations 2013, SI No.387, the Secretary of State had a ‘duty’ to invite a DLA recipient to claim PIP where s/he reports such a change; however, there was also a ‘power’ to do so at any time after 27 October 2013. Once the notice (of an invitation to claim PIP) was issued under regulation 3(1), the claimant ‘became a transfer claimant and was on a legal conveyor belt towards termination of his DLA award’. The claimant could not have succeeded on this point, and so the tribunal’s failure to deal with his argument could not have been a material error of law (paragraphs 21–22).

The tribunal had erred, however, in irrationally treating the claimant’s GP evidence that the claimant had ‘four days out of seven bad’ as the basis of a finding that the claimant had more good days than bad (paragraph 25). The case was remitted to a new tribunal for rehearing.