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Decision in brief

That will apply where supervision is reasonably required, including with regard to the possible seriousness of the consequences if supervision is not provided - 'I regard it as inconceivable that the legislation intended that claimants who might be at risk of serious harm if left to prepare and cook a meal unsupervised, such as those with epilepsy and similar conditions, could only qualify for points under Activity 1 if they could establish that they were likely to come to some form of harm, serious or otherwise, on more than half the days in the required period'

Decision in brief

Where award made before claimant turned 65 deterioration must have occurred before age ' 65 - but where (as here) award was made (on supersession) after age 65, simply not possible in any circumstances to get the high rate - Schedule 1, paragraphs 2 and 6 of the Social Security (Disability Living Allowance) Regulations 1991 applied

Decision in brief

Lithuanian national with pension from Lithuania and none from UK- UK not the competent state for cash sickness benefit (eg, attendance allowance) in this situation - therefore not entitled to attendance allowance - decision of European Court of Justice in Hudzinski (Cases C-611 and 612/10) does not alter that - Hudzinski does provide that the non-competent state may have the power, and in some cases even a duty, to pay benefit in some cases including, potentially, where claimant would be deprived of all benefit or of entitlement that has been brought by contributions or taxes, and in some cases of dual entitlement for migrant workers - but attendance allowance not in any of those

Decision in brief

That is not changed by fact that claimant has an immigration right to reside as a family member who has retained the right of residence under regulation 10 of the Immigration (European Economic Area) Regulations 2006, following departure of the jobseeker from the UK - permission to appeal to the Court of Session granted

Summary

The appellant had been entitled to disability living allowance(DLA). On transfer to personal independence payment (PIP), she was eventually given an award of both components, but not at the same level as the DLA had been. At no point was a face-to-face medical examination carried out. The First-tier Tribunal rejected her appeal, but expressed regret that no such examination had been carried out and that it did not have the power to direct that a medical examination should take place.

Judge Gray allowed the claimant's further appeal, holding that the tribunal had erred in law in considering that it did not have the power to direct a medical examination. Such a power was expressly provided for at section 20(2) of the Social Security Act 1998. That provides that a First-tier Tribunal may, 'if conditions prescribed by Tribunal Procedure Rules are satisfied' and it considers it necessary, refer the appellant to a healthcare professional approved by the Secretary of State for medical examination. Schedule 2 of the Tribunal Procedure Rules (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, No.2685 provides that the issues regarding which such a direction can be made include whether the conditions for entitlement to PIP are satisfied.

In the present case, it was clear to Judge Gray that the tribunal did want to refer the appellant for a medical examination and, in thinking that it could not, it misunderstood the law (paragraph 14). Commenting on the operation of the rule, she said, 'it is for the FTT [ie, the First-tier Tribunal] to assess the quality of the available evidence on an appeal against an outcome decision, but, as is now clear to me, the FTT can itself direct a medical assessment' (paragraph 28).

Comment from CPAG

This is a useful reminder of the power of the First-tier Tribunal to direct a medical examination and so a medical report. It also applies (for example) where the tribunal wants medical evidence, or further medical evidence, about whether the claimant has limited capability for work or for work-related activity- ie, and so to employment and support allowance and universal credit. However it should be remembered that this power only arises where the tribunal considers such a direction is necessary (ie, not merely because the appellant wishes it) and also that the source of the evidence will be the relevant contractor for the DWP medical service.

Summary

The claimant was awarded four points under Activity 2b by the First-tier Tribunal - ie, on the basis that he could stand and move more than 50 metres but not more than 200 metres. This was despite evidence from the claimant that he was in constant pain when walking and that pain affected his ability to walk. The tribunal noted that the claimant had said that he had walked without stopping from the waiting room to the tribunal room, a distance of 33 metres.

Judge K Markus QC allowed the claimant's further appeal and remitted the case to a new tribunal. The tribunal had erred in its approach to the mobility descriptors, and in particular failed to address whether the claimant could walk to an 'acceptable standard', as required by regulation 4 of the Social Security (Personal Independence Payment) Regulations 2013, No.377 (paragraph 15). The tribunal was not relieved of that requirement merely because it had not been specifically raised by the claimant. The tribunal did have evidence that the claimant suffered pain throughout while walking, that his arm went into spasm and that his leg gave way, and in his request for mandatory reconsideration had said, 'I would rather push through the pain and stay as active and independent as long as I can ... l think it is fair to say that I cannot walk fifty yards as I struggle at every step' (paragraph 10).

The claimant's appeal was opposed by the Secretary of State, who argued that the pain was not significant enough to prevent the claimant walking up to the point he stopped, and that it was only at that point that he was no longer able to walk to an acceptable standard. The judge disagreed with that submission. lt could not property be assumed that merely because the claimant was able to keep walking for a certain distance, any pain he experienced while walking was not relevant. Pain was 'clearly a potentially relevant factor' to the question of whether the claimant could walk to an acceptable standard (paragraph 11). The judge cited with approval the decision of Judge Parker in CPIP/2377/2015, where she said that, 'matters such as pain, and its severity, and the frequency and nature, including extent, of any rests required by a claimant, are relevant to the question of whether a claimant can complete a mobility activity descriptor "to an acceptable standard"' (quoted at paragraph 13).

Comment from CPAG

Not only pain and the effect of pauses or stops, but also factors such as dizziness and shortness of breath could potentially affect whether a claimant can walk 'to an acceptable standard'. For a similar decision in which the facts required a focus on pauses or stops, see KN v SSWP [2016] UKUT 261 (AAC). It should also be borne in mind that (as elsewhere in the assessment) ability is also to be assessed with reference to whether it can be performed safely, repeatedly and within a reasonable time period.

Summary

The claimant was selected to participate in the Mandatory Work Activity Scheme. Shortly afterwards, he was notified that he was required to begin work as a volunteer with the Salvation Army, for 30 hours a week for four weeks. While on the scheme, he was asked to leave it on the basis of an allegation that he was upsetting other volunteers. A 13-week sanction was imposed on him. His appeal against that was rejected by the First-tier Tribunal. Only on appeal to the Upper Tribunal did it emerge that: (1) at the point the claimant was referred to the Mandatory Work Activity Scheme, he was already working voluntarily in a charity shop and the DWP knew that, and (2) official guidance applied to the scheme at the relevant time (2013) included that a claimant already working must not be referred to the scheme.

Judge Wright allowed the claimant's further appeal so as to remove the sanction. He agreed with an eventual concession by the Secretary of State that, had proper regard been had to the 2013 guidance, then the claimant ought not to have been referred to the scheme, but having been wrongly referred he subsequently had good reason for not participating in the scheme because he ought not to have been put on it (paragraph 17).

Also, there had been a breach of the 'prior information duty' which applies regarding referral to a mandatory (or 'work for your benefit') schemes. The judge cited the description by the Court of Appeal in Secretary of State for Work and Pensions v Jeffrey and Bevan [2016] EWCA Civ 413 of that duty as a 'simple proposition about administrative fairness', in which the Secretary of State had a duty to ensure that claimants had sufficient information about a scheme and sufficient opportunity to make relevant representations about their possible referral to it (paragraph 2). In this case, it seemed that the decision maker had not had reference to the relevant guidance, an error compounded by the Secretary of State then breaching his duty under rule 24(4)(b) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, No.2685, to provide the First-tier Tribunal with 'copies of all documents relevant to the case' - ie, in this case the official guidance about referral to the scheme. On this point, the judge had reference to his own decision in ST v SSWP [2012] UKUT 469 (AAC) (Bulletin 238, p14), and considered that particular point was not doubted by the subsequent decision in FN v SSWP [2015] UKUT 670 (AAC) (Bulletin 250, p10) (paragraph 4). The judge later commented that it did not seem to him that the decision in FN meant that a tribunal does not err in law where it decides the appeal and ' ... if it is later shown that other relevant evidence was available and ought to have been before it' (paragraph 20).

Comment from CPAG

The Mandatory Work Activity Scheme ended in April 2016. However, Judge Wright's comments about the general nature of the prior information duty and the Secretary of State's duty to provide relevant information to tribunals remain pertinent. He is evidently especially keen to emphasise the latter. At least on his reading of the decision in FN, when a tribunal proceeds without such evidence, there remains a distinct possibility of error of law where it is clear that the tribunal 'ought' to have had the evidence.

Summary

In this decision, the Upper Tribunal considered a number of cases in which the main issue was whether a European national continued to have the right to reside as a jobseeker, having been subject to the requirement to have 'compelling evidence' of a 'genuine chance of being engaged in employment' (the GPOW test), as required (after the relevant period) by regulation 6(7) of the Immigration (European Economic Area) Regulations 2006, No.1003 ('the EEA Regulations').

Judge Ward began by recalling that the right of jobseekers under European Union law is derived from the decision of the European Court of Justice in Antonissen, Case C-292/89. In that immigration case, the Court (at paragraph 21) held that a jobseeker was entitled to stay in a member state if he 'provides evidence that he is continuing to see employment and that he has genuine chances of being engaged'. Regarding the meaning of a 'genuine chance', the judge held that a chance is proved by reference to the facts (paragraph 35); that a genuine chance was one that offered 'real prospects of success' in getting a job (paragraph 42); he rejected the argument that it simply meant 'more than marginal' (paragraph 43). The genuine 'chance' has to be something coming to fruition within .a 'reasonable period of time', although that could include the future effect of attainment of qualifications or completion of training (paragraphs 46-48); there was no 'absolute limit' on the right for which jobseeker status could be retained, or step change in what had to be proved (paragraph 49); however it was necessary to take the preceding period of six months (or longer)'s lack of success in getting work into account in assessing 'genuine chances' (paragraph 51).

Turning to the requirement in the EEA Regulations for 'compelling evidence' as part of the GPOW test, the judge first rejected the argument that there was authority that the requirement was in contravention of European Union (EU) law (paragraph 53). The Secretary of State argued that the UK was clearly entitled to require a 'more compelling' case after six months' residence while unemployed. The judge did not disagree, to the extent that it did not impose anything further to the 'genuine chance' test set out in Antonissen; that also involved a burden of proof based on probabilities, so that the requirement for 'compelling evidence': 'does not add anything, save for making express to decision makers and tribunals what was the case anyway'

(paragraph 56). What the test could not do was anything more than that The judge said, 'Insistence on "compelling" evidence may, if care is not taken, all too easily result in raising the bar above the level I have found to be required, namely chances that are founded on something objective and offer real prospects of success in obtaining genuine and effective work with a reasonable period' (paragraph 57). He considered that approach was consistent with that of Judge Sir Crispin Agnew of Lochnaw QC in KS v SSWP [2016] UKUT 269 (AAC) (Bulletin 253, p13) (paragraph 59).

In the course of his decision, the judge made reference to the official guidance on the GPOW test, in paragraphs 073099 and 073100 of the Decision Makers' Guide. That, in effect, states that 'compelling evidence' is limited to a job offer or awaiting the outcome of a job interview. Although the judge declined to comment in detail on the guidance, he did point out that it was 'internal guidance, not law' (paragraph 30), and that tribunals 'should be alive to the risk that, because the Guidance is framed in the limited way in which it is, GPOW interviews may have been conducted, and/or the Secretary of State's submissions to the tribunal written, by reference to a restricted palette of issues' (paragraph 61). In one of the individual cases, the judge held that the tribunal had correctly treated the guidance as providing some examples of what might be compelling evidence, but that there were other ways in which the requirement might also be met (paragraph 90).

Note: See also the article on p4.

Summary

The claimant had been overpaid IS following undisclosed absences abroad which were of sufficient length to terminate entitlement. A civil penalty of £50 was imposed. The claimant's appeals to the First-tier Tribunal, in which she argued that she was abroad only because the NHS would not give her the treatment she wanted, and that she was not aware that she might lose entitlement while abroad, were rejected. The tribunal (which had refused to adjourn on the basis of the claimant's ill health) said that it followed from its finding that the claimant had caused the overpayment by her failure to disclose her absences abroad that her appeal against the penalty must fail. 

Judge Rowland dismissed the claimant's further appeal on the basis that the overpayments were recoverable from her and that, on the facts, a civil penalty was applicable. The facts showed that the claimant had been clearly advised of her need to report an absence abroad, and she had undoubtedly failed to do so (paragraphs 4-6). However, he also held that the tribunal had erred in considering that the application of a civil penalty was inevitable, and in not considering that the imposition of the penalty was discretionary. But, on the facts of the case, a penalty was appropriate and the claimant had not been disadvantaged by not being able to argue about the civil penalty in person. 

Regarding civil penalties, the relevant legislation was section 115D of the Social Security Administration Act 1992. That provides that a penalty 'may' be imposed where a claimant fails 'without reasonable excuse' to provide required information or evidence, or to report a change in circumstances, an overpayment results, and s/he has not been charged with an offence or cautioned. The judge noted that whether a person has 'reasonable excuse' raises the question of whether the person's actions or inactions were a 'reasonable thing for a responsible person, conscious of, and intending to comply with, his or her obligations regarding benefit but having the experience and other relevant attributes of the person in question... ' (paragraph 11). Also, the word 'may' in section 115D connoted the existence of a discretion. Even if a claimant was partly to blame, 'social security claimants often have low incomes and find it difficult enough to repayment and overpayment without a penalty being added... ' (paragraph 13). The judge was satisfied that there was the right of appeal about all such matters (paragraph 19); but on the facts of the present case was also satisfied that the tribunal had not materially erred in law as 'the overpayment was caused by her fault and no-one else's' (paragraph 22).

Summary

The claimant claimed HB in December 2012. He had previously owned the property, and formal transfer of ownership (to his son) had not occurred until March 2010. The local authority refused his claim, holding that he was not liable for the rent on the basis that he had previously owned the property and was within five years of ceasing to own it. However, the claimant had, since January 2001, been subject first to a High Court restraint order followed by an inhibition in the Land Registry, then a Crown Court confiscation order and then appointment of a receiver to enforce the confiscation order, with the effect that he was prohibited from disposing of the property himself, and the transfer to the son was under the power of the receiver. Nevertheless, the First-tier Tribunal found that the claimant was the 'registered legal owner' of the property until March 2010, that he was therefore to be treated as not liable for rent and that he was therefore not entitled to HB. 

Judge Levenson allowed the claimant's further appeal and substituted a decision that he was not to be treated as not liable for rent, The tribunal had erred in regarding claimant as the 'owner' of the property up until March 2010. The relevant rule regarding being treated as not liable for rent in these circumstances was at regulation 9(1)(h) of the Housing Benefit Regulations 2006, No.213. 'Owner' is defined at regulation 2(1) and provides that it is 'the person who... is for the time being entitled to dispose of the fee simple, whether or not with the consent of other joint owners'. 

The judge held that it was clear that the fee simple was included in the restraint order, the Land Registry inhibition and the appointment of a receiver to enforce the confiscation order (paragraph 15). It was 'absolutely clear' that from the time of the issue of the restraint order in January 2001 , the claimant was not the person who for the time being was able to dispose of the fee simple, and there would have been severe legal consequences had he attempted to do so. The judge said that 'neither the local authority nor the First-tier Tribunal ever got to grips with the implications for this case of the definition in regulation 1(2) (paragraph 18).

Summary

The claimant failed to attend an interview under the Work Programme, and her reasons for not attending were not supplied until well outside the five-day period allowed for showing 'good cause' for failing to carry out work-related activity. A sanction was imposed on the claimant. On appeal, her argument was that she had mental health problems, there were problems with her medication and her mother had died in the preceding months. The First-tier Tribunal dismissed the claimant's appeal as she had not shown good cause within five days of being notified of her failure to comply.

Judge Wright, allowing the claimant's further appeal, substituted a decision that the claimant's ESA was not subject to a sanction. Although the Claimant had not shown good cause within five days, the tribunal had erred in failing to consider whether the initial requirement to attend the interview under the Work Programme was reasonable, having regard to her circumstances, as provided for by regulation 3(4)(a) of the Employment and Support Allowance (Work-Related Activity) Regulations 2011, No.1349 ('the WRA regulations') (paragraph 35). On the facts of this case, that was something the tribunal should have considered, as it was clearly a matter that was raised by the appeal, even though the specific issue cited had been that of good cause (paragraphs 37-40).

The judge accepted that, following the decision in SSWP v TJ and others [2015] UKUT 56 (AAC), 'good cause' had to be shown within five working days, as provided for by regulation 8 of the WRA regulations, and that time could not be extended (paragraphs 23- 24). However, the judge agreed with the argument made by the Secretary of State that the tribunal was able to consider for itself whether, on the facts, the prior requirement to attend the interview was reasonable. Although at the time of the decision under appeal the claimant's full circumstances may not have been known to the decision maker, later evidence shown gave a fuller picture of circumstances at that time and could still be taken into account. On the evidence which was, and should have been, before the tribunal (including the claimant's action plan which the Secretary of State had erroneously failed to supply to the First-tier Tribunal), an issue clearly arose as to whether it was reasonable for the claimant to attend the interview. That was a prior and separate issue to good cause, and the tribunal erred in not considering that (paragraphs 37-40).

Decision in brief

Someone who needs to use incontinence pads to be able to manage incontinence scores two points under descriptor 5(b) 'Needs to use an aid or appliance to be able to manage toilet needs or incontinence' - an incontinence pad is an 'aid' -therefore someone who needs to use incontinence pads cannot manage her/his incontinence unaided - either bowel or bladder incontinence may be relevant