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Summary

This decision of the Court of Justice of the European Union (EUECJ) concerns a claimant's ability to 'export' an award of the care component of disability living allowance (DLA) to another EU member state under the old EC Regulation 1408/71. It is, therefore, about this issue before the replacement of 1408/71 with the current EC Regulation 883/04 in May 2010. It arises from Secretary of State appeals against the decision of the Upper Tribunal in SSWP v LT (DLA) [2012] UKUT 282 (AAC) (Bulletin 230, p12) and the subsequent Court of Appeal decision, and reference to the EUECJ from the UK Supreme Court.

The EUECJ essentially upheld the original finding of the Upper Tribunal, in that it held that DLA care component was a 'sickness benefit' for the purposes of EC Regulation 1408/71, and was therefore exportable to another member state under Article 22 of the Regulation. The claimant (who has since died) had worked in the UK and paid national insurance contributions towards (among other things) a retirement pension, although had not worked since moving to Spain. The DWP had removed entitlement from the date of the move to Spain.

There was nothing, held the court, in Article 13(2)(f) of the Regulation to preclude the legislation of the original member state ceasing to apply to the claimant. It was for the national legislation of the member state to provide when its legislation ceased to apply (paragraph 64). However, the claimant had paid contributions and was to be regarded as an 'employed or self-employed person' even though she was not working before moving to Spain, and as such came within the protection of Article 22(1 )(b). That meant the national legislation could not make DLA care component dependent on residence and presence in the member state (paragraph 93). The claimant therefore retained her right to receive the care component of DLA (as a sickness benefit) in another member state.

Comment from CPAG

This decision is closely focused on provisions in the old EC Regulation 1408/71 , and is not straightforwardly applicable to the provisions in the current EC Regulation 883/04. However, there should be no doubt that care component of DLA remains a 'sickness benefit'.

Summary

In this decision, a request for judicial review of changes in 2020 to the rules on which a disabled students could qualify for universal credit (UC) was rejected by the High Court. The claimant was a disabled student, entitled to personal independence payment. In October 2020, after starting his university course, he applied for UC. That was refused on the basis that he was in full-time education. Crucially, he could not satisfy the exemption (provided for in regulation 14(1)(b) of the Universal Credit Regulations 2013 No.376) that allows some disabled students to qualify. That was because he did not satisfy the requirement there, as created by amendment regulations from 5 August 2020 (‘the 2020 Regulations’), to also have been assessed as having limited capability for work at the time of his application for UC. It was common ground that before the amendment the claimant could have qualified, in that the assessment of limited capability for work could have been made subsequent to the claim for UC.

The claimant argued that the amendment made to regulation 14(1)(b) by the 2020 Regulations was unlawful for any of four reasons: first, that it was unlawful to make the amendment without prior consultation; second, that the decision to make the amendment was irrational as the change made by the 2020 Regulations did not achieve the Secretary of State’s purpose; third, that the amendment to regulation 14(1)(b) was unlawful discrimination in breach of Article 14 of the European Convention on Human Rights; and fourth, that the Secretary of State failed to comply with her obligations under section 149 of the Equality Act 2010 (‘the public sector equality duty’).

Mr Justice Swift rejected all of those arguments. He accepted the Secretary of State’s argument that her intention had always been that regulation 14(1)(b) should provide an exception to the requirement not to be receiving education only for those who, before making a claim for UC, had already been assessed as having limited capability for work, and the amendment was a clarification of that. Hence there was no unlawful failure to consult, as ‘the policy the amendment the 2020 Regulations pursued had already been the subject of consideration within her department and been determined to be appropriate’ (paragraph 22). The amendment was not irrational. A previous action for judicial review (the Kauser litigation) had prompted the Secretary of State to amend the rules and, said the judge, ‘the 2020 Regulations were consistent with the Secretary of State’s intention that for this class of applicant a claim for universal credit should not itself be the event triggering the capability for work assessment’ (paragraph 29). The judge also held that the amendment did not breach Article 14. That was partly because of the (somewhat unusual) finding that the claimant did not have an ‘other status’ for the purpose of the Article: the judge considered that the claimant’s alleged ‘status’, that of a disabled student who had not been assessed as having limited capability for work, was really a restatement of the alleged discrimination rather than actually being a status. But the judge also held that even if that were wrong, the change was justified as being ‘for sound reason’, as evidenced by the Secretary of State (paragraph 34). Finally, there was no breach of the public sector equality duty: ‘In this case it was sufficient for the Secretary of State to identify the sources of income and support that would be available to disabled students once the 2020 Regulations were made. This addressed the core consequences of the amendment to regulation 14’ (paragraph 40).

Comment from CPAG

As noted in the decision, more recently, the Universal Credit (Exceptions to the Requirement not to be receiving Education) (Amendment) Regulations 2021 No.1224 further amended regulation 14(1)(b). Now, regulation 14(1)(b) limits the exception for disabled student to those who have been determined to have limited capability for work and work-related activity before the date on which s/he starts receiving education. The present decision obviously makes any challenge to that change more difficult. See also the article in Bulletin 287, p7.

Summary

In this decision of the Court of Justice of the European Union (CJEU), it is held that a self-employed woman who ceases work due to physical constraints in late pregnancy and the aftermath of childbirth retains her right to reside as a self-employed person, provided that she returns to self-employment or employment within a reasonable period after the birth of her child.

The claimant was a Lithuanian national who had been in self-employment in the UK. Soon after giving birth, she applied for child benefit. On the facts of the case, she was eventually found not to have the right to reside as her self-employment was considered to be marginal. However, she had also temporarily ceased working altogether during late pregnancy, before returning to do some marginal work after the birth of the child. The court was asked to rule whether it was possible for self-employed status to have been retained at all when the work was temporarily ceased. The UK argued that it was not.

The court rejected the UK’s argument. In this context, a distinction could not be made between a self-employed person and an employed person. The court had already held (Gusa, C-442/16, 20 December 2017) that employees and the self-employed were in a comparable vulnerable position if obliged to stop working, and therefore could not be treated differently regarding their right to reside. Applying that, a woman who ceases to be self-employed because of the physical constraints of the late stages of pregnancy and the immediate aftermath of childbirth cannot be treated differently, as regards the retention of right to reside, to a woman in employment in a comparable position.

Summary

In this judicial review decision, the High Court of Northern Ireland held that the requirement in the rules regarding terminal illness in personal independence payment (PIP) and universal credit (UC) for the claimant’s death to be reasonably expected in six months were unlawful, in that they breached the human rights of a claimant diagnosed with terminal illness who was unable to meet that ‘six-month’ requirement.

The claimant was diagnosed as terminally ill with motor neurone disease. But she was unable to satisfy the terminal illness rules in PIP so as to become immediately and automatically entitled to the enhanced rate of the daily living component and the standard rate of the mobility component, or the terminal illness rules in UC so as to become immediately and automatically entitled to the limited capability for work and work-related activity element. This was because her consultant was unable to state, as required in the rules, that the claimant’s death was reasonably to be expected in six months.

Judge McAlinden held that the claimant’s inability to satisfy the rules because of that was in breach of her human rights. She was treated differently to a claimant who was able to satisfy the six-month test, but who then lived on beyond that period without losing the entitlement gained under the rules. Therefore, there was a potential breach of her rights under Article 14 of the European Convention on Human Rights, read together with Article 8 (right to family life) and Article 1 of Protocol 1 (right to possessions). The difference in treatment was capable of justification (and so, lawful) if it was not (to apply the accepted test) ‘manifestly without reasonable foundation’. Reviewing the evidence, the judge considered that there was ‘no evidence, justification or rationale’ for the difference in treatment in either the PIP or UC rules, and so the claimant had been discriminated against (paragraphs 104–106). The judge considered that he could remedy the breach, but first invited the parties to agree an Order for the court (paragraph 106).

Comment from CPAG

The decision is not formally binding in Great Britain but is of persuasive authority. In applying the ‘manifestly without reasonable foundation test’, the judge took into account the role given to proportionality by the England and Wales Court of Appeal in TD, AD and Reynolds v Secretary of State for Work and Pensions [2020] EWCA Civ 618. Specifically, the judge considered whether ‘the difference in treatment is manifestly disproportionate to the legitimate aims pursued’ (paragraph 91). The result, as in Reynolds, is a more proactive and rigorous consideration of the test that in some older authority. See also the decision in O’Donnell v Department for Communities.

Decision in brief

Tribunal relied on official medical report when that was based on assessment in which (contrary to the claimant’s request) there was no interpreter – sending out the tribunal clerk to speak to the claimant about his objection to the judge (on grounds of alleged bias), with the judge refusing to recuse himself, was an irregular procedure: it made it more likely that the claimant would not enter the hearing room at all, and could be perceived as a ‘shot across the bows’ of the claimant – unnecessarily formal language was used, there was no interpreter for the exchange with the clerk, and no indication was made that the claimant had the option of choosing a ‘hearing’ just on the papers.

Note from CPAG

Regarding procedural irregularity where a medical report was produced without an interpreter, this decision has not been followed (by a different judge) in the claimant’s personal independence payment case: see BF v SSWP [2020] UKUT 300 (AAC).

Summary

The claimant was found by the First-tier Tribunal not to have the right to reside as a jobseeker on the basis that he failed the 'genuine prospect of work' (GPOW) test. In particular, the tribunal held that there was not 'compelling evidence' that he had a genuine prospect of work, as required (after the relevant period) by regulation 6(7) of the Immigration (European Economic Area) Regulations 2006 No. 1003.

Judge Agnew of Lochnaw Bt QC allowed the claimant's further appeal and remitted the case to a new tribunal. The judge could not be clear that in applying the 'compelling evidence' requirement of the GPOW test, the tribunal had not applied a higher standard of evidence than that permissible under the civil standard of proof, which was simply that on the 'balance of probabilities' the claimant had a genuine prospect of work (paragraph 15). To the extent that the Secretary of State was suggesting that 'compelling evidence' imposed some higher standard of proof, that was contrary to EC law as set out in Article 14(2)(b) of EC Directive 2004/38/EC and the decision of the European Court of Justice in Case C-292/89 R v Immigration Appeal Tribunal ex p Antonissen [1991] ECR 1-745, both of which merely provided for a requirement for claimants to provide 'evidence that they are continuing to seek employment and that they have a genuine chance of being engaged' (paragraph 14).

The judge said, of the 'compelling evidence' requirement contained in regulation 6(7), ' ...I interpret "compelling evidence" to be no more than the requirement for evidence to establish on a balance of probabilities that the claimant is continuing to seek employment and that he has a genuine chance of being engaged' (paragraph 12), and that 'I see no logical reason why different member states are entitled to provide for difference standards of proof to prove that a person is "continuing to seek employment and that they have a genuine chance of being engaged"' (paragraph 14).

Comment from CPAG

This decision is clear authority that the restrictive approach to what is 'compelling evidence' in the GPOW test, as set out in DWP guidance (Volume 2 para 073099 DMG) and routinely applied by decision makers, is unlawful. In any case, the GPOW and compelling evidence requirement are the subjects of another forthcoming decision of the Upper Tribunal in MB v Secretary of State for Work and Pensions (CJSA/2042/2015).

Decision in brief

Relevant rule at rule 31 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2018 refers to the hearing proceeding if ‘the tribunal’ is satisfied that the claimant has been notified of the hearing and that it is in the interests of justice to proceed.

Decision in brief

Comments in CDLA/997/2003 and commentary in Volume I of Social Security Legislation 2018/19 to effect that it is when household would normally close down for the night, ignoring staying awake later in order to deal with child’s care needs, endorsed.

Decision in brief

Whether award should be fixed term, and if so what the term is, are aspects of the decision and may in principle be considered and determined by the tribunal on appeal – RS v SSWP [2016] UKUT 85 (AAC) approved.

Decision in brief

But ‘giving support to collect medication is self-evidently not assistance with managing medication’ – the keyworker played no part in ensuring the appellant took his medication and no points were to be awarded for that in this activity.

Note from CPAG

Although as a decision of the Northern Ireland Commissioner this is not formally binding in Great Britain, it has been highlighted on the Upper Tribunal website.

Decision in brief

Where claimant has appealed against such a refusal, s/he is then a person subject to immigration control – fact that reference in section 115(9)(d) of the Immigration Act 1971 is to now revoked provisions is immaterial – applying s17(2) of the Interpretation Act 1978, the reference is now to leave extended under section 3C of the Act, and the effect is the same.

Note from CPAG

The judge also held that where leave was extended under section 3D of the Act (appeal against requirement to leave the UK – since repealed), the person was not subject to immigration control, as held in GO v HMRC (CHB) [2018] UKUT 328 (AAC).