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Summary

The claimant attempted to make an online claim for JSA in October 2013. However, she never received any confirmation of the claim and, in the event, it turned out that there was no evidence that the claim had been accepted on the official DWP computer system. She wrote to her local jobcentre in 2014 (the Secretary of State said it was in February but the claimant argued that it was earlier) to inform it of the failure of the online claim. Following a letter from the DWP that no such claim had been received, she submitted another online claim in March 2014, which was successful. But her date of claim was said to be in March 2014, and the claimant’s appeal to the First-tier Tribunal was dismissed.

Judge Mitchell held that the tribunal had erred in law, but only to the extent that it had failed to consider whether the date of claim should have been fixed at the date in February 2014 when the claimant wrote to the jobcentre, on the basis that should have been treated as a notification of an intention to make a claim. The claimant’s argument that her date of claim should have been treated as the date (in October 2013) when she first attempted to claim JSA online was dismissed.

Rules on use of ‘electronic communications’ for a number of benefits, including JSA, were found in Schedule 9ZC of the Social Security (Claims and Payments) Regulations 1987, SI No.1968. Under paragraph 4(3), information shall not be taken to have been delivered to an official computer system ‘unless it is accepted by the system to which it is delivered’. Under paragraph 6(1) and (2), there is a presumption of delivery of a claim where it has been recorded on the official computer system, and presumption of non-delivery where it has not been so recorded. The judge was unable to see how the claimant could rebut the presumption of non-delivery, and although the tribunal had technically erred in not having reference to the correct rules, it would have arrived at this conclusion even had it done so (paragraphs 30–31). However, the tribunal also erred in not considering that the claimant’s letter of February 2014 was a notification of an intention to claim JSA, in which case the date of claim was fixed at the date of such notification under regulation 6(4A). The judge remitted to a new tribunal the question of exactly when in 2014 the claimant had notified her intention to claim, as she had argued that she had written before the February 2014 letter referred to by the Secretary of State (paragraph 36).

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.

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 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 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 claimants were a couple employed by a company that they owned and of which the appellant was the managing director and his wife the sales director. The company’s income was derived from commissions based on fees paid by subscribers, the number of which had been in decline. In 2013, the HMRC made a decision that the claimants were not entitled to WTC during the tax year 2012–13, and that they were required to repay an overpayment (described by Upper Tribunal Judge Rowland as ‘very considerable’). The crucial part of the First-tier Tribunal decision, which dismissed the appellant’s appeal, was that it found that he had not worked ‘in expectation of payment’ during that year as ‘by 2012’ he had resigned himself to the fact that no profit was going to be made.

Judge Rowland set the tribunal decision aside and remitted the case to a new tribunal. The tribunal had erred in not giving adequate reasons, as the timing and nature of the appellant's resignation had not been investigated or explained (paragraph 10). The finding that he had resigned ‘by 2012’ did not mean that he might not have been working in expectation of payment for at least part of 2012–13. More generally, the judge accepted that ‘work may be done in expectation of payment notwithstanding that no profit is in fact made. Moreover, work may be done in expectation of payment even if it is known that no profit will be made for some time but it is expected that the relevant business will become profitable in the future…’ (paragraphs 11–12).

Summary

The claimant had mental health problems. She appealed against a decision that she failed the work capability assessment. She indicated that she did not want an oral hearing as she did not want to go out due to her mental health problems, and could not afford to get a ‘medical letter’. The tribunal went ahead without a hearing. It noted that the claimant could not afford to get a letter but that it already had relevant medical evidence, and attempted to get a copy of a letter from the claimant’s GP about a previous appeal, but it was not available. The tribunal dismissed the appeal.

Judge Jacobs held that the tribunal did not err in law. He considered a number of arguments regarding how tribunal should take account of a claimant’s mental health problems when deciding whether to hold a hearing. All parties at the hearing before the Upper Tribunal accepted that the duty to make reasonable adjustments under section 29 of the Equality Act 2010 does not apply to First-tier Tribunals (as there was a specific exemption regarding judicial functions). Insofar as it holds otherwise, DC v SSWP [2014] UKUT 218 (AAC) should not be followed (paragraphs 9–10).

However, a tribunal is under a duty to take mental health problems into account when applying the ‘overriding objective’ to deal with a case ‘fairly and justly’, as required by rule 2 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, SI No.2685. On the facts of this case, the claimant had clearly indicated that she did not wish an oral hearing. It was beyond dispute that a telephone hearing was permissible, as is made clear by rule 1(3) (paragraph 29). The only previous decisions before the Upper Tribunal in which this has previously been considered (eg, SW v SSWP [2015] UKUT 319) (AAC)) were ones in which the claimants had raised the possibility themselves. It would be unrealistic to expect claimants always to do that unless they were notified of that possibility by the tribunal (paragraphs 29–30). The application of the overriding objective has to be ‘proportionate’. In this case, the tribunal’s reasons for proceeding were anything but formulaic and reflected that a proportionate amount of time had been devoted to the question of whether to hold one. Offering a telephone hearing was one possibility but, taking all the information the tribunal had into account in this case, that was not necessary in order to deal with the case fairly (paragraphs 32–36).

Summary

The claimant was refused personal independence payment. The DWP took six months to make a decision when the claimant requested a mandatory reconsideration, and in total there was a gap of 10 months been the claimant’s initial decision and his First-tier Tribunal hearing. The claimant had mental health problems and took ‘potent’ medication for that. His condition had deteriorated by the time of his tribunal hearing. The tribunal proceeded without obtaining reliable evidence of the claimant’s condition at the time of his appeal or offering him the opportunity of an adjournment to seek representation.

Judge Mitchell allowed the claimant's further appeal and remitted the case to a new tribunal. The tribunal had erred in not turning its mind to whether the claimant had a reasonable opportunity to present his case and, if he had not, what needed to be done to allow that. In not so doing, it had failed to ensure that there was an ‘equality of arms’ between the parties to the appeal, so breaching the right to a fair trial at Article 6(1) of the European Convention on Human Rights (paragraphs 5 and 7). Among the relevant features of the case here were that the claimant’s condition had deteriorated since the decision under appeal so that evidence of his functioning at the date of the hearing would not necessarily assist his case, and that ‘the other party had delayed initiating the appeal proceedings for six months so that it may thereby have improved its chances of success’, while reducing those of the claimant (paragraph 6).

Comment from CPAG

This decision is authority that long delays in making a mandatory reconsideration may require a tribunal to pay extra attention to a possible need for more evidence or for the claimant to be represented. However, such delays will not inevitably result in such issues in every case. Much will depend on other relevant facts – eg, whether the claimant’s condition has changed since the decision under appeal, what more recent evidence is available and whether the claimant is represented.

Summary

The claimant lost his appeal for a higher award of personal independence payment than that which he had been awarded. In its decision, the tribunal appeared to adopt the medical evidence of the DWP healthcare professional, and did not deal with the points made by the claimant’s representative.

Judge Gray allowed the claimant’s further appeal and remitted the case to a new tribunal, holding that the tribunal had erred in giving inadequate reasons for its decision. The judge made a number of comments about the weighing of DWP medical evidence, in particular with regard to where that conflicted with the evidence of the claimant. The Secretary of State had suggested that the chief reason for the tribunal's adopting the medical report of the healthcare professional was that it was the only medical evidence available and that, all else being equal, it was not unreasonable to prefer ‘expert’ evidence to lay evidence. Judge Gray commented, ‘To the extent that this statement appears to suggest that there is a rule of thumb, even if not a rule of law, that expert evidence should generally be preferred to the evidence of an appellant I disagree’ (paragraph 20). She cited with approval the words of Judge Ovey in paragraph 24 of CW v SSWP [2011] UKUT 386 (AAC): ‘…there is no general rule that where there is a difference between the evidence of a medical professional producing reports for the use of the Department for Work and Pensions in making decisions as to social security benefits and the evidence of a claimant, the evidence of the medical professional should be preferred.’

Judge Gray went on to hold, ‘Whilst evidence of expert opinion may be of value, a tribunal is entitled to accept the uncorroborated evidence of an appellant as to their functional impairment and the extent of it rather than the evidence of a healthcare professional which may come to a very different view as to the probable extent of functional difficulty. Were that not to be so, an appellant in a case such as this where the Secretary of State routinely obtains evidence from a healthcare professional, could never win.' It remained open to the tribunal to prefer the healthcare professional’s opinion because of its expertise, ‘but a formulaic acceptance of the report of an examining medical practitioner, without consideration of the evidence as a whole, will be an error of law (CIB/3074/2003)’ (paragraph 21).

Comment from CPAG

The judge’s comments are a reassertion of previous caselaw authority to the effect that tribunals must weigh evidence on its own merits and, when adopting a particular source of evidence, explain what those merits are. It is somewhat depressing that some First-tier Tribunals evidently still struggle to apply such authority. Given that they do, the judge’s words are a helpfully clear reminder of the correct approach.

Decision in brief

Whether subsequent use of evidence by tribunal rendered its decision unlawful – tribunals are not bound by the strict law of evidence and can admit all relevant evidence – it may nevertheless be important for a tribunal to decide whether evidence was lawfully obtained – it if was, prospect of exclusion by the tribunal on grounds that it would be unfair to admit it is minimal – it was open to the tribunal to accept evidence from the presenting officer that authorisation had been obtained

Decision in brief

Descriptors 4(a) and (b) ability to pick up and move a ‘carton full of liquid’ – test refers to a carton that is closed not open, therefore spilling in the act of picking up and moving not relevant – descriptor 5(d) ‘cannot single-handedly use a suitable keyboard or mouse' – ability to use an iPad is not the same as ability to use a keyboard or mouse – tribunal needed to explain why it considered ability to use an iPad meant 5(d) did not apply

Decision in brief

‘Social support’ is not limited to support provided by persons with particular training or expertise or which is provided professionally – can be satisfied on basis of support provided by family or friends – definition in the rules is that ‘social support’ means support ‘from a person trained or experienced in assisting people to engage in social situations’ – the necessary ‘experience’ may be derived simply from someone assisting an individual close to him or her