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Summary

In nine tribunal decisions regarding the same claimant, the applications for permission to appeal to the Upper Tribunal were late. Applications for permission to the First-tier Tribunal had been late, and although accepted, permission was refused. The consequent application to the Upper Tribunal for permission to appeal was also made late (by almost two months). Just before the standard one-month time limit expired, the claimant's representative had written to the Upper Tribunal requesting an extension of time, setting out reasons which included that nine appeals were involved with extensive documentation and that he did not have time to read and digest all the papers and take further instructions before expiry of the time limit. The Upper Tribunal responded that extensions of time were not granted, but a late application could be considered if accompanied by reasons for lateness.

Judge Lane refused the eventual late application for permission to appeal to the Upper Tribunal: as it was not in the interests of justice to grant it. She followed, broadly, the approach taken by the Upper Tribunal in an immigration and asylum case, R (on the application of Onowu) v First-tier Tribunal (Immigration and Asylum Chamber) [2016] UKUT 185 (IAC). That set out three main stages for consideration of a late application: (1) identify and assess the seriousness or significance of the failure to comply with the rules; (2) consider why the failure occurred (ie, whether there is a good reason for it); (3) evaluate all the circumstances of the case, so as to deal with the application justly. Onowu was 'robustly disapproving of delays attributed to overworked and underfunded legal services and public bodies'. However, held the judge, 'that is not necessarily a view that advances the interests of justice to legal services and public bodies in the social entitlement sphere... In these circumstances, a more flexible approach to delay may be needed if justice is to be done' (paragraph 4).

But the present appeal did not provide an example of that need (paragraphs 4 and 9-18 Regarding the Onowu stage one, the facts showed 'very substantial delay' by an appellant who had had the advantage of legal representation, yet had applied late both to the First-tier and Upper Tribunals. Regarding stage two, both the appellant and her representative had delayed (the latter being a 'very lengthy' delay), and in the judge's view there was no good reason. The representative had only to identify an arguable error of law in the First-tier Tribunal decision, something the papers showed the appellant had herself already done, yet after two months' delay the actual application for permission to appeal added little. Onowu stated that, in most cases, the merits of the appeal will have little to do with whether an extension of time should be granted. Only in cases where very strong or very weak merit were easily apparent will the merits have a significant part to play, and that was not the case here.

Decision in brief

Descriptor (d) 'Cannot engage with other people' due to such engagement causing either 'overwhelming psychological distress' or 'substantial risk' - being able to 'engage socially' is part of whether a claimant can engage safely and to an acceptable standard but that test is relevant to descriptors (a)-(c) which envisage that a claimant can engage with other people - it is not relevant to descriptor (d) which envisages that the claimant cannot engage with other people without the distress or risk- if, on other hand, claimant can avoid the distress or risk with social support, s/he satisfies descriptor 9(c)

Decision in brief

Young person with ADHD - points may be scored regarding needing prompting to avoid selecting malodorous or unhygienic clothing - points me also be scored regarding need for help avoiding impulsive spending - but in either case the inability must stem from a physical or mental condition (includes ADHD), so mere indifference or inexperience does not by itself suffice

Comment from CPAG

The Upper Tribunal is clearly indicating that dressing and undressing involves more than simply putting clothes on and taking them off - see also ML v SSWP [2017] UKUT 171.

Decision in brief

Personal independence payment - Activity 6 (Dressing and undressing) - hesitation or indecision in dressing as a consequence of a health condition can be relevant - selection of clothing on basis of appearance can also be relevant in this, where as a consequence of a health condition

Comment from CPAG

See also DP v SSWP [2017] UKUT 156 (AAC).

Decision in brief

Inability to see people being spoken to and to see body language may present barriers - tribunal should not assume that ability to engage at a tribunal hearing means that no prompting or social support is required in other contexts

Decision in brief

Tribunals - First-tier Tribunal concluded its hearing but did not issue decision - on the day before decision sent out, claimant sent in additional evidence - tribunal erred in holding it could not be taken into account as the hearing had concluded - a decision only becomes final once written notice of that decision has been sent to the parties (CJ v SSWP (IS) [2013] UKUT 131 (AAC) applied) and matters are in abeyance before that point- tribunal in fact had discretion as to whether to admit the evidence or not, applying the overriding objective to deal with matters fairly and justly

Decision in brief

As soon as a decision on entitlement at the end of the year has been made under section 18, any decision made under section 16 for that tax year ceases retrospectively to have any operative effect - any appeal against the section 16 decision lapses and the tribunal must strike out the proceedings

Comment from CPAG

A three-judge panel was convened to make this decision, as different approaches had been taken regarding this subject by the Upper Tribunal in RF v HMRC [2016] UKUT 399 (AAC) and in JY v HMRC [2016] UKUT 407 (AAC). The former had held that the section 16 appeal was not lapsed by the section 18 decision, the latter that it was lapsed but there was still discretion to hear the appeal. Both decisions were disapproved on those points by the present decision. It is now clear that the section 18 decision lapses the section 16 appeal, which must then be struck out.

Decision in brief

For 'reasonable grounds' for believing' that the rate is wrong or that claimant is not entitled - on appeal, tribunal stands in shoes of decision maker and considers whether at the time of the section 16 decision there were 'reasonable grounds' or not - appeal is also against the discretionary decision to amend or terminate the 'award' - should still be decision about 'entitlement' at the end of the year, under section 18

Comment from CPAG

At the time of making the present decision, the judge was aware that a decision in LS and RS v HMRC was forthcoming. Insofar as an appeal against a section 16 decision is not lapsed, it remains pertinent. LS and RS v HMRC changes that in the situation where a decision under section 18 is made before the appeal is heard - ie, because the section 16 appeal will then lapse. However, as both the present decision and LS and RS v HMRC indicate, a claimant appealing a section 18 decision is able to make all the points about entitlement that s/he wishes to.

Decision in brief

While tribunal has a function to enquire, there are certain clinical matters which should be respected - re both Activity 9 (Engaging with people face to face) and the mobilising descriptors, tribunal erred in restricting consideration to social contact that was 'reasonably necessary' or to what walking was 'reasonably required' - wrong to exclude claimant's choice- reasoning in Secretary of State v Fairey (R(A) 2/98) that 'the yardstick of a "normal life" is important' was pertinent here

Decision in brief

Personal independence payment - mobility component - decision in MH and others v SSWP [2016] UKUT 531 (AAC) represents the law up to the point where and insofar as new regulations effective from 16 March 2017 [SI 2017 No.194 - see Bulletin 257, p10] changed the law - entitlement up to 16 March is to be decided on basis of law as applied in MH

Summary

This decision of the Scottish Court of Session concerns the meaning of 'social support' in Activity 9(c) of the personal independence payment assessment, namely whether the claimant scores four points because s/he needs 'social support to be able to engage with other people'. The court considered an appeal by the Secretary of State against the decision on the Upper Tribunal in MMck v SSWP [2016] UKUT 191 (AAC). The Secretary of State submitted that the Upper Tribunal had been wrong to hold that 'social support' could - in specific circumstances - include 'prompting', and that the social support could in some situations be given in anticipation of the claimant meeting people face to face, rather than just at the same time as the engagement.

The court rejected the Secretary of State's appeal. There could be 'no justification for a requirement that either prompting or social support must be given during or immediately before the face-to-face engagement with other people' (paragraph 50). The court did accept that there needed to some sort of 'temporal or causal link' between the support and the engagement.

Endorsing the approach of the Upper Tribunal, the court considered that, for example, a psychologist could give a psychological intervention which could mentally attune the claimant to go and meet people face to face. On the other hand, where, as a result of psychiatric or psychological intervention in the past, the claimant now did not need further help to engage, it could not be said that social support (or prompting) was required. It was for the decision maker or tribunal to decide whether the required temporal or causal link was present (paragraphs 47-51 ).

The court held that there was the potential for overlap between 'prompting' and 'social support'. The crucial distinction between the two was that social support 'comes from a person trained or experienced in assisting people to engage in social situations' (paragraphs 54-55). That did not mean the mere fact that prompting came from such a person meant it was social support. There had to be some necessity for it to come from that person, so that 'encouragement or any other sort of prompting can qualify as "social support" if, to render it effective or to increase its effectiveness, it requires to be delivered by someone trained or experienced in assisting people to engage in social situations' (paragraph 56).

Summary

This decision of the Scottish Court of Session, now reported, concerns the right to reside for income support (IS) purposes of a child of a European jobseeker estranged from both parents, in circumstances in which the parent with a right to reside was no longer in the UK.

The claimant, a Polish citizen, was at school in the UK. Her mother joined her in the UK in 2014 and was a jobseeker, but returned to Poland. The father had never been in the UK. The claimant was estranged from both parents. Her claim for IS was refused on the basis that she did not have the right to reside. Although the First-tier Tribunal allowed her appeal, it was overturned by the Upper Tribunal, who considered the right to reside at issue - that of a family member of a jobseeker - was excluded for 1S purposes.

The Court of Session allowed the claimant's further appeal, and substituted a decision that she did have the right to reside for IS purposes. It was true that a right to reside as the family member of a jobseeker who was in the UK was excluded under regulation 21 AA(2)(b) of the Income Support (General) Regulations 1987, SI No.1967. But the court accepted that that provision, by referring to a jobseeker who was a 'qualified person' under the Immigration (European Economic Area) Regulations 2006, SI No.1003 (the 'EEA Regulations') referred only to jobseekers who were in the UK. The extended right to reside of such a person and her/his family members was under regulation 14(2), and this was the right that was excluded in the IS rules.

By contrast, where a person (like the claimant) is the direct descendant of someone who stopped being a qualified person on ceasing to reside in the UK, and was in education in the UK immediately before then, s/he retains her/his right of residence under regulation 10 of the EEA Regulations and has an extended right to reside under regulation 14(3). That, considered the court, was not excluded by the IS rules (paragraphs 22-26). There was no absurdity in such an approach. On the contrary, held the court, 'we consider that it is consistent with the principles of non-discrimination and equality of treatment which are fundamental to EU law that children of EEA citizens who are estranged from their parents and left in the United Kingdom should be treated in the same way as British children would be treated in the same circumstances' (paragraph 29).