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Decision in brief

Erred in not showing that it considered adjourning – not clear justification for what was effectively an ‘abortive hearing’ – overriding need to deal with case fairly and justly – AM v SSWP (ESA) [2013] UKUT 563 (AAC) applied.

Decision in brief

Lump sums paid as reimbursement for salary deductions – to be treated as employment income not as capital – salary payments under a fixed-term employment contract also to be treated as employment income even though claimant did no work under the contract – a contract of employment does not require actual service by an employee and, on the facts, there was no evidence of a ‘sham’ agreement.

Summary

This decision of the Court of Appeal upholds the decision of the three-judge panel in TW v SSWP (PIP) [2017] UKUT 25 (AAC). There, it was held that transitional rules for transfer of DLA awards to claims for PIP did not unlawfully discriminate against disabled people in not backdating any increased PIP entitlement to the date of cessation of the DLA award (and instead starting PIP entitlement 28 days later). In essence, the court held that there was nothing wrong in the Upper Tribunal’s approach or reasoning.

The claimant had been entitled to lowest rate awards of DLA components, but on transfer was entitled to the enhanced rate of the PIP daily living component. The transfer had been triggered after reporting a change in her circumstances. Her argument to the court included that the Upper Tribunal erred in its interpretation of regulations 20 and 17 of the Personal Independence Payment (Transitional Provisions) Regulations 2013, No.387, in failing to hold that regulation 20 made different provision in ‘change of circumstance’ cases so that, in effect, she was entitled to be treated as already entitled to PIP at the date she reported the change. Her other argument was that the Upper Tribunal erred in failing to identify the correct comparator (allegedly, a PIP claimant with a successful supersession for change of circumstance) when considering her argument that the failure to backdate the increased PIP award breached the anti-discrimination rule at Article 14 of the European Convention on Human Rights, and wrongly held that that Article 14 was not breached.

The court unanimously rejected both of the claimant’s arguments. Giving the lead decision, the Senior President of Tribunals held that the Upper Tribunal had interpreted the regulations correctly. Regulation 17 applied to all transfer claimants and did not make a special case of change-of-circumstance claimants (paragraphs 24–30). Regarding the discrimination argument, the Upper Tribunal had identified a comparator, new PIP claimants, but focused its analysis on whether the difference in treatment between such claimants and DLA-entitled persons. That was consistent with existing caselaw which did not place any emphasis on the identification of an exact comparator (paragraph 34). The Secretary of State had objectively justified the difference in treatment in the rules, and had a legitimate aim in treating DLA-entitled persons who notify a change in circumstances differently to new PIP claimants (paragraphs 44–46). In holding that the 28-day rule was lawful, the Upper Tribunal had been entitled to take into account (as regarding proportionality) practical concerns about such a large-scale transfer process and (in the context that it was not the sole aim and that the rule protected other claimants) the official aim of making cost savings by introducing PIP (paragraphs 47–48).

Summary

The claimant had multiple sclerosis and depression. When walking, she had difficulties with balance, unsteadiness, stiffness and pain. The First-tier Tribunal awarded her points under descriptor 2(b) ('can stand and then move more than 50 metres but not more than 200 metres, either aided or unaided'). Its findings of fact included that the claimant was limited to walking 50-200 metres, and could walk 50 metres before needing to 'pause', walking a distance of a third of a mile in about 15 minutes.

Judge Hemingway allowed the claimant's further appeal and remitted the case to a fresh tribunal. Given its findings, the tribunal had erred in failing to consider whether the claimant's ability to walk was being accomplished within a 'reasonable time period', as required under regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013 No.377 (paragraph 17). Regulation 4(A) also requires that the test is of the claimant's ability to satisfy a descriptor 'safely', 'to an acceptable standard' and 'repeatedly'.

The judge considered whether, if a claimant had to pause or stop before reaching a distance prescribed in the descriptors, that meant the distance had in fact not been achieved. He agreed with the approach taken by Judge Parker in CPIP/2377/2015. There, she held that matters like pain and the nature and extent of any rests required by the claimant were relevant to whether the claimant could complete a descriptor 'to an acceptable standard', but that such rests could be merely for a second or for an hour, and it was up to the 'good sense' of the tribunal to decide whether that meant the claimant could walk the prescribed distance or not (cited at paragraph 14). In the present decision, Judge Hemingway held that where a claimant needed merely to pause before stepping up a kerb, or to take a gulp of air, it would be 'losing touch with reality' to decide that meant that the claimant's moving had come to an end. On the other hand, for example, if the claimant had to pause and recover because of fatigue, or to allow pain to recede, that might well, depending on the circumstances, suggest that such a halt brought into play the requirements of regulation 4(2A). The judge added his view that there will also be times when the halt is of such length that 'it cannot realistically be said any resumption is part of the same period of walking'. It was a matter for the 'good judgement and common sense' of the tribunal (paragraph 15).

Comment from CPAG

The decision seems to allow two arguments about the effect of pauses/stops: (1) that the pause/stop is of such duration that it simply brings the period of walking to an end; (2) that although the pause/stop is not of such duration as to bring the period of walking to an end, applying the regulation 4(2A) factors means that the claimant nevertheless cannot be said to achieve the distance in the descriptor.

Summary

In this decision, a three-judge panel of the Upper Tribunal considered a challenge to regulations under which receipt of income-based jobseeker's allowance ceased to provide that a HB claimant automatically satisfies the right to reside and habitual residence tests, where the only right to reside the claimant had was that of a jobseeker. The challenge was that the relevant amending regulations were not validly made, as the Secretary of State had impermissibly failed first to refer them to the Social Security Advisory Committee (SSAC).

Judges Gamble, Knowles QC and Carmichael QC rejected the challenge, holding that the regulations were validly made. The relevant amending regulations were The Housing Benefit (Habitual Residence) Amendment Regulations 2014 No.539. They came into force on 1 April 2014. They were not referred in advance to SSAC, as the Secretary of State relied on the power at section 173(1)(a) of the Social Security Administration Act 1992 ('the Act') not requiring such a referral where 'it appears to the Secretary of State that by reason of the urgency of the matter it is inexpedient so to refer them'. The Upper Tribunal held that the First-tier Tribunal did have the authority to consider whether regulations were validly made (paragraph 5), but accepted that in this case the exemption had been legitimately applied.

The Upper Tribunal held that the correct focus was initially on when an obligation would arise to refer to SSAC, in the absence of any urgency, under section 172 of the Act. That was the point at which the Secretary of State 'proposes to make regulations'. Although various official statements were made during 2013 indicating intentions to strengthen the habitual residence test, the Upper Tribunal accepted an affidavit from the DWP that it was not until early in 2014, at a very late stage, that the intention to limit HB was formed (paragraphs 41-43). An argument that urgency that was self-induced could not be relied upon was not accepted, as 'the point in time that a policy decision is made is itself a question of political judgement, and pre-eminently one for . the executive, not the courts.... Consultation is required only when the government has decided what to do'. That left it reviewable on 'Wednesbury' grounds - ie, that it was beyond the range of reasonable decisions open to the Secretary of State. On the facts of this case, the Upper Tribunal was unable to make such a finding (paragraphs 50-53).

Summary

The claimant was a child aged four years. He had cerebral palsy, developmental co-ordination delay, dyspraxia and hypertonia; he also had problems with faecal leakage and medically recognised 'absences' which required intervention from an adult to rouse him to avert danger, in particular when walking outdoors. His claim for DLA (made via an appointee) was refused, a decision that was upheld by the First-tier Tribunal.

Judge Lane allowed the claimant's further appeal and remitted the case to a new tribunal. The tribunal had erred in a number of ways. Firstly, it omitted to deal with the claimant's need for extra attention at school under his statement of special educational needs. It was well established that extra attention a child receives of this sort may qualify as attention in connection with bodily functions, and that cognition was an aspect of the working of the brain (paragraph 5). The Secretary of State had submitted a rough calculation that this extra attention amounted to about 43 minutes per day [inadvertently stated as 43 minutes per week in the transcript]. The judge held it was possible the claimant may qualify for the care component. Regarding the low rate and care for a 'significant portion of the day', the judge pointed out that 'it is not enough following R(DLA) 5/05 for a Tribunal simply to say that 'an hour' is a significant portion of the day' (paragraphs 7-8).

Regarding the claimant's 'absences', the tribunal also failed to apply authority (ROLA 4/01) that attention out of doors could also amount to supervision or guidance and count for the lower rate of the mobility component. Attention in connection with bodily functions may arise indoors or outdoors, and while walking (paragraphs 9-10). Regarding faecal leakage, the tribunal found that the problems mostly arose during the day, were infrequent at night and that the child could wear nappies to minimise the need for attention. The judge could see nothing wrong with those findings. However, the tribunal also said that any night-time needs were not, as required, 'substantially in excess' of a non-disabled child of the same age and sex, as any four-year-old child would need help in dealing with incontinence. That was the wrong approach, as it missed the fundamental point that only a small percentage of four-year-old children were faecally incontinent: the 'real question to ask' was whether the child's needs from faecal incontinence at night were 'substantially in excess', not the actual need for the changing of clothes and bedding (paragraphs 17-19). However, on the facts of this case, that was not a material error, as the judge accepted that the facts meant that the 'incidents of night-time incontinence were simply insufficient to qualify for benefit and could be offset by using nappies (paragraph 20).

Comment from CPAG

This is a useful restatement of the relevance of attention needs at school, and the correct application of the 'substantially in excess' test. See also the article on p8.

Summary

The separated parents of children both made claims for CTC in respect of them. The father, having originally been awarded CTC but having had that terminated when the mother claimed, appealed. The mother was joined to the appeal as a party to the appeal. The tribunal awarded the CTC to the mother, taking account of a court order providing for the children to be with her on four nights a week, with holidays split equally, and rejecting the father's argument that the tribunal should take account of the 'quality' of the care provided, the contribution towards education and the financial support provided.

Judge Jacobs allowed the father's further appeal and remitted the case to a fresh tribunal. At issue was the 'main responsibility test' at regulation 3 of the Child Tax Credit Regulations 2002 No.2007. The tribunal had erred by using the court order as the test of responsibility, rather than making actual findings about what the parents did, and by adopting an approach that time was the determinative factor (paragraphs 41-42). Reviewing the relevant caselaw, the judge said that 'as the judges have regularly emphasised, the application of the rules in regulation 3 depends on the facts and circumstances of the individual case' (paragraph 18). He agreed with the decision of Judge May in CM v HMRC [2010] UKUT 400 (AAC) that it was not legitimate to take into account the financial consequences of an award of CTC so that the decision was based on which household would benefit more financially (paragraph 27). It was also not right to focus on the amount of time that care was provided for; although an important factor, time was 'not an indicator of all aspects of responsibility' (paragraph 38). The terms of a court order 'will not necessarily be determinative' (paragraph 39).

The judge held that 'the proper approach is to collect information about all aspects of responsibility, to resolve any conflicts in the evidence, and then to form a balanced judgement on where the main responsibility lies. No factor predominates; all must be taken into account' (paragraph 38). The components of taking practical responsibility for a child involved actually providing care, but also included making decisions, providing for the child's needs by feeding, clothing, nurturing and protecting her/him in her/his physical, mental, educational and social development, and being available in case of need. This was not an exhaustive list (paragraph 30).

Summary

In this decision, the European Court of Justice (ECJ) dismissed an argument that the right to reside test in its application to child benefit and child tax credit (CTC) is unlawful, as it was in breach of European law on equality of treatment. The case was brought against the United Kingdom by the European Commission (EC).

The Commission argued that the right to reside test was in breach of Article 4 of EC Regulation 883/2004. That provides for equality of treatment for European Union (EU) nationals. In particular, it was argued that Article 11, which creates the 'single state' rule for deciding which EU state legislation should apply to a claimant, merely creates a habitual residence test, and so there is no provision for any additional 'right to reside' test. In the alternative, in the event that a right to reside test was possible, it was argued that the UK right to reside test unlawfully discriminated against EU nationals in that not all could satisfy it, whereas all UK nationals automatically satisfy the test.

The ECJ rejected both arguments. Article 11 of EC Regulations 883/2004 was not intended to lay down the conditions creating the right to social security benefits. Referring to the Court's previous decisions in Brey (Case C-140/12) and Dano (Case C-333/13), the Court said it was, in principle, for the legislation of each member state to lay down those conditions (paragraph 65). Regulation 883/2004 as a whole did not set up 'a common scheme of social security', and its sole objective is to ensure the co-ordination of those schemes, thus allowing different schemes to exist (paragraph 67). Again citing Brey and Dano, the Court said that 'there is nothing to prevent, in principle, the grant of social benefits to Union citizens who are not economically active being made subject to the requirement that those citizens fulfil the conditions for possessing a right to reside... ' (paragraph 68). Neither was the right to reside test unlawfully discriminatory. It did create unequal treatment between UK nationals and other EU nationals; however, that discrimination was justified in principle as appropriate for protecting the finances of the host member state (paragraphs 78-81 ). In practice, the Court was satisfied that following the gathering of information on the child benefit and CTC claim forms, it was only in 'specific cases' and 'in the event of doubt' that further verification was necessary; the right to reside test was therefore proportionate (paragraphs 84-85).

Decision in brief

Falling asleep during the day does not equate to loss of consciousness - claimant fell asleep for 45-60 minutes each day due to general fatigue and lethargy - Activity 10 must be read as a whole, and the activity refers to 'consciousness during waking moments' - that meant when a claimant was not sleeping - decision of the Northern Ireland Commissioner in OM v Department for Social Development (ESA) [2013] NI Com C17 approved

Decision in brief

Someone who uses a colostomy bag scores two points under descriptor 5(b), 'Needs to use an aid or appliance to be able to manage toilet needs or incontinence', even though s/he can manage the bag unaided - to score such a claimant nil points under descriptor 5(a) produces an absurd result

Decision in brief

An aid does not have to be specifically designed, made or sold for the purpose of overcoming the limitation on function (NA v SSWP [2015] UKUT 572 (AAC) approved in that regard) - the aid or appliance must relate in some way to the particular activity in question - but a bed does not count as an 'aid' in the activity of dressing and undressing - an 'aid' has to be required for carrying out the activity, not just for carrying it out in a particular manner - using a bed for dressing is a usual or normal way of performing the activity and by using one the person is not demonstrating a limitation on carrying out the activity, but rather with one manner of carrying out the activity

Decision in brief

Ability to get in or out of an unadapted bath or shower is what is being assessed